Attorney General's Reference No 29 Of 2014

LORD JUSTICE TREACY:

This is an Attorney General's reference pursuant to section 36 of the Criminal Justice Act 1988. On 25 February 2014 after a trial at the Central Criminal Court the offender was acquitted of murder. He had pleaded guilty to manslaughter on the first day of the trial. Sentence was adjourned for the preparation of a pre-sentence report. On 14 March 2014, the offender was sentenced to an extended sentence. The custodial term imposed was one of 7 years and 6 months. The extension period was 5 years. However, pursuant to the slip rule, the judge had the case relisted on 4 April 2014. On that date the judge altered the custodial element of the sentence so that the custodial term was now 6 years. The extension period remained at 5 years. The Attorney General's reference is directed to the custodial element of the sentence imposed.

In briefest outline, the deceased had begun a relationship with the offender's partner, Ms Dooley, in the two or three days prior to the killing. On the day of the killing, the offender, Ms Dooley and the deceased found themselves together in a flat. It seems that the deceased made a humiliating remark about the offender, at which the offender picked up a knife which was on the table and stabbed the deceased repeatedly.

Developing that outline in somewhat more detail, the evidence shows that the offender had been in a relationship with Ms Dooley for about 18 months. Ms Dooley had at some time in the past previously been in a long-term relationship with a man called Roger Thornton, whose name will feature later in this narrative. The deceased, Colin Bolton, happened to live in the same block of flats as Ms Dooley and the pair were friends. However, in the days leading up to the fatal incident their relationship had become closer. The pair spent the night of 7 June 2013 together at Mr Bolton's flat. They agreed that Ms Dooley would end her relationship with this offender. Ms Dooley wanted to wait until the following Monday, 10 June, in order to inform the offender. However, Mr Bolton did not wait. He told this offender and Roger Thornton by telephone on 8 June that he and Ms Dooley were now in a relationship. It appears that he may also have placed some information about his new relationship on Facebook. Ms Dooley was annoyed by this and argued with Mr Bolton before returning to her own flat.

On the same day, 8 June, Mr Bolton happened to be driving past the offender. Mr Bolton stopped his van and threw a photograph in the offender's direction. The photograph depicted Ms Dooley and Mr Bolton kissing. The offender picked up the photograph and took it to Ms Dooley's home. He then tore it into several pieces and tried to burn it. A bunch of flowers which had been given to Ms Dooley by Mr Bolton had been crushed and trampled on when the offender had found them at Ms Dooley's flat.

The offender waited at Ms Dooley's flat all that day, and indeed overnight, expecting Mr Bolton to return. However, Mr Bolton did not return. Mr Bolton had spent the evening of 8 June in a public house, and he informed two friends of his that he had been threatened with serious harm. He told one of them that "Andy" (that is this offender) had threatened to stab him.

On 9 June, Ms Dooley took an overdose of tablets and was taken to hospital for treatment. On 10 June the offender visited Ms Dooley in hospital. He wanted her to reconsider her decision to bring the relationship to an end but she declined to do so. The offender left the hospital and shortly after that Mr Bolton arrived. Ms Dooley was due to be discharged from hospital at about 5 pm that day and Mr Bolton went to collect his work van in order to take her home.

Whilst waiting for Mr Bolton to return, Ms Dooley received a telephone call from the offender saying that her daughter Shannon, whose father is Roger Thornton, had not returned from school. Accordingly, when Mr Bolton returned to the hospital, he collected Ms Dooley and took her in the van in order to look for the missing daughter. They drove towards Mr Thornton's flat and en route they saw the daughter in the company of this offender. They picked up the daughter and then drove to Mr Thornton's flat.

A short while after they had arrived there this offender came to the flat. Ms Dooley had gone to lie down in a bedroom. That left Mr Bolton and this offender in the lounge with Mr Thornton. Mr Bolton was sitting on a sofa. The offender was questioning him about his relationship with Ms Dooley. Mr Thornton briefly left the room and went to the kitchen. He had only been out of the room for a very short period when he heard Mr Bolton screaming. At that he ran back into the lounge and saw Mr Bolton curled up in a ball on the sofa with the offender on top of him. Initially, Mr Thornton thought that the offender was repeatedly punching Mr Bolton. His impression was that about ten blows were delivered. Mr Bolton was curled up in a ball trying to protect himself. Mr Thornton pulled the offender away from Mr Bolton, and at that point he saw a knife fall to the floor. The offender then went to the kitchen where Ms Dooley saw him pick up a large, blue kitchen knife. She persuaded him to put that knife down and he threw it back onto the drainer. He returned to the lounge where Mr Bolton was lying fatally wounded. He collected some tobacco and left the premises without doing anything to assist Mr Bolton. He then fled the scene and made his way to his brother's home in Hampshire.

In the meantime, Mr Thornton called emergency services who did what they could, but Mr Bolton's life could not be saved and he was pronounced dead shortly afterwards. In the small hours of the following day, the offender's brother contacted the police, who arrested this offender. The offender declined to answer questions about the matter in interview.

Post-mortem examination showed that there were seven stab wounds present to the body. The most significant wound was that to the right upper chest. The wound tract involved both lungs and the pericardial sac of the heart before passing fully through the aorta. The assessment of the pathologist was that the infliction of the wound would have required the use of severe force.

In passing sentence, the judge dealt with the matter on the basis that the offender had not brought the knife to the flat but had picked up a knife which was on the coffee table. He found that the jury's verdict was on the basis of a loss of control as opposed to a lack of the necessary intention.

The offender is 45 years of age. He has three old and irrelevant previous convictions. There were reports available to the judge dealing with this offender's mental state.

Dr Noon concluded that the offender did not suffer from any severe or enduring mental illness; there was no evidence that he had ever suffered from any psychotic disorder; nor did the offender suffer from any significant disorder of mood. Dr Noon's opinion was that the offender's difficulties related to his limited intellect and consequent poor coping skills, rather than a depressive illness. There was another psychiatric report from a Dr Joseph. He described the offender as being of borderline intellectual functioning with a full-scale IQ of 70. He said that the offender was not aggressive as a consequence of any symptoms of mental illness and stated that he did not consider that he was aggressive as part of his personality. His borderline intellectual functioning and inadequate personality traits were life-long and not associated with violence.

There was also a psychological report from Ms Tizzard. She stated that the offender had a diagnosis of learning disability indicative of a mild, bordering moderate, mental impairment. The pre-sentence report referred to the learning disability and low IQ. The probation officer considered that the offender expressed genuine remorse.

There were victim personal statements from Colin Bolton's father and sister, which this court has considered.

For the Attorney General, it is submitted that the sentence imposed is unduly lenient, firstly because the custodial term of the extended sentence did not adequately reflect the aggravating features of the case; secondly, it is submitted that the judge attached too much weight to the offender's learning disability as a mitigating feature.

In passing sentence, the judge analysed the offence as follows. The offender had only formed an intention to cause really serious bodily harm at the point when he picked up the knife. However, in the two to three days prior to that, he had clearly been intending some form of violent confrontation with the deceased. He had been biding his time until he was alone with the deceased and was "spoiling for a confrontation". Some two days beforehand he had uttered threats to the deceased, including a threat to stab, which the deceased had reported to a third party. After the stabbing with the knife picked up from the table, the offender had gone to the kitchen and taken possession of a second knife. The judge found that he would have used that had he not been confronted and dissuaded by Ms Dooley. The attack with the knife was described as a brutal one. It involved repeated blows, delivered to a defenceless man who offered no threat. After the event, the offender had done nothing to help the grievously injured victim; indeed instead he had fled the scene. The judge also found that the attack had taken place with others in close proximity, if not actually in the room. All of those features represent aggravating features of the case.

On the other side in mitigation, the offender had no previous record for violence. He had admitted manslaughter on the first day of the trial. The judge accepted that the incident with the photograph and the telling of others about the new relationship constituted provoking conduct over the previous two or three days. The judge accepted that in the few seconds after Mr Thornton had left the room there may well have been a humiliating jibe which triggered the taking up and use of the knife. The judge accepted that the offender was a man of low intelligence and that that was relevant to his reaction to the circumstances confronting him. It made it more difficult for him to exercise self-control. The judge also accepted that the offender had, subsequent to the event, experienced remorse for what he had done.

. There is a guideline of the Sentencing Guidelines Council promulgated in November 2005 relating to manslaughter by reason of provocation. As R v Thornley [2011] 2 Cr App R (S) 62 shows, regard may be had to that guideline as long as allowance is made for significant developments which have followed it. The court in Thornley identified four new matters: firstly, the increased focus on knife crime; secondly, the impact of schedule 21 of the Criminal Justice Act 2003; thirdly, the introduction into schedule 21 of a specific provision relating to the use of a knife as a murder weapon; and fourthly, the replacement of the partial defence of provocation by that of loss of self-control. To those matters, we would add the decision of this court in Attorney General's Reference (No 60 of 2009)(R v Appleby), as subsequently considered in other decisions of this court, whereby greater weight than hitherto is to be attached to the fact that death has resulted from the unlawful act constituting the offence of manslaughter. In our judgment, those post-guideline developments would tend to push sentence levels higher within the guideline.

In the guideline there is a category involving a low degree of provocation occurring over a short period with a starting point of 12 years, and a category involving a substantial degree of provocation, again occurring over a short period with a starting point of 8 years. Having considered all the circumstances, the judge concluded that this case fell short of the substantial provocation category. However, he described the provocation as having been significant over a period of two days and noted the offender's vulnerability to provocation. He took a starting point of 10 years, representing a midpoint between the two categories described and, after giving credit of 25 per cent for the guilty plea, initially fixed a custodial term of 7 years and 6 months. That was subsequently altered after further reflection by the judge. He said that he had given insufficient credit for the offender's low intellect and vulnerability to loss of self-control. Thus he reduced the custodial period to 6 years, maintaining the same level of credit for a guilty plea.

On behalf of the offender, Mr Power QC has submitted that the sentence was passed by an experienced judge who had given careful reflection to the case. The judge had had the advantage of seeing and hearing the evidence at the trial. The judge had found that there was significant provocation over the two-day period. Mr Power QC stressed that sentencing is fact-sensitive in every case, and in the circumstances submitted that the sentence in this case fell short of the unduly lenient category.

. In addition to the authorities already cited, we have considered R v Worsman [2010] 1 Cr App R (S) 71; R v Tyler [2011] 2 Cr App R (S) 90; R v Bishop [2012] 1 Cr App R (S) 13; and Attorney General's Reference (No 8 of 2011) (R v Edwards) [2012] 1 Cr App R (S) 53. We accept of course that each case is fact-sensitive. A feature of the present case is that the deceased had indulged in provocative conduct prior to the day of killing (even leaving sexual infidelity out of account, as we must), as well as immediately before the fatal event.

However, this offender clearly had a settled intention to have a violent confrontation with the deceased for a period of days prior to the killing in circumstances where he must have been aware of his own difficulty in controlling his anger. That difficulty arose from an inability to manage psychosocial stresses. However, the offender had chosen to put himself in a situation on the day of the killing whereby he could confront Mr Bolton, thus leading to the very situation in which he was most likely to be unable to control his reactions to frustrating or provoking events.

We consider that there is force in the Attorney General's point that the judge gave undue weight to the offender's disability. We consider also that the judge did not give sufficient weight to the offender's clear desire for a violent confrontation, albeit one which did not involve an intention to kill or do really serious bodily harm prior to the time of the killing itself.

In our judgment, an application of the guideline, read in the light of the developments which have taken place since it came into force, should have led to a sentence of at least 11 years. Giving credit for the guilty plea in the same way as the trial judge did, this would result in a sentence of 8 years or a little more. In consequence, the custodial period of 6 years appears to this court to have been unduly lenient and we grant leave. We give effect to our decision by substituting the term of 8 years for the term of 6 years as the custodial element of the extended sentence imposed.

It is to be noted that since manslaughter is a schedule 15B offence there is no automatic release at the two-thirds stage. It will be a matter for the Parole Board to consider whether release is safe at that point. The possibility remains, therefore, that the offender will have to serve the full custodial period before he is released subject to the extended licence. That is the decision of this court.