Nicholles, R v

This is an application brought by Her Majesty's Solicitor General pursuant to section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly lenient. We grant leave.

The offender, John Nicholles, is 53 years of age, having been born on 14^th September 1961. On 24^th April 2015, in the Crown Court at Southwark, he was sentenced by Her Honour Judge Taylor to nine years' imprisonment for an offence of manslaughter.

The victim was Peter Charles John, aged 54. He and the offender had known each other well but had not been in touch for five years or so. There was no evidence of any animosity between them. The offender had been tried for murder but was acquitted. His defence was that he had acted in self-defence. The jury convicted of the alternative of manslaughter. The basis of conviction was a lack of intent either to kill or to cause serious bodily harm.

The facts show that, on 23^rd July 2014 the offender and the deceased attended a church funeral service for a David Brown who was related by marriage to Peter John. After the church service the mourners drove in convoy to a cemetery. Peter John left his family in order to urinate.

The offender went in a separate vehicle with two other mourners. There appears to have been an encounter between the offender and Peter John. A fight broke out. The offender called Peter John a "grass", which he denied. The offender punched Peter John to the head and both men fell to the ground. The offender then kicked Peter John, and a knife which he had had in his pocket fell out. A witness estimated the blade to be about six inches long. Both men went towards the knife, but the offender picked it up and stabbed Mr John in the neck.

The offender drove off, leaving the deceased collapsed on a grass verge. After calling his partner, he subsequently called the emergency services but provided insufficient information for them to be able to act upon it. A member of the cemetery ground staff discovered Peter John and summoned the police. He was found to be dead on arrival at hospital.

A post-mortem examination showed that death was caused by a 4cm deep stab wound to the left side of the upper neck. The common carotid artery and the jugular vein had been severed causing severe haemorrhage. In addition, there were further injuries caused by a sharp knife to the right side of the deceased's chin and to the upper front chest.

Two days later the offender was arrested. In interview he made no comment.

It was admitted that the offender had disposed of his blood-soaked suit and shirt, and that he had attempted to clean blood from his shoes. The knife which was used was never found.

As to the accusation that Peter John was a "grass", there was evidence before the court that the offender used that expression as a term of general abuse to describe people he did not like, as opposed to it bearing its more usual meaning of an informer.

The offender gave evidence that, despite previous convictions for carrying knives or weapons, he often carried knives as they "came in handy for various tasks".

In passing sentence the judge said that the responsibility for carrying the blade to the scene lay with the offender and that when he took hold of the knife he did not use his possession of it to end the fight but carried on. It was accepted that the knife had not been used with an intention to kill or to cause grievous bodily harm (as was inherent in the verdict), but the judge said:

For the Solicitor General it is submitted that the sentence was unduly lenient in modern times in circumstances where a knife was used and a death unlawfully caused.

For the offender, Mr Valios QC has submitted that in all the circumstances the sentence was not unduly lenient. The circumstances he rightly said need to be examined with care.

Before passing sentence the judge had considered a number of authorities and identified a range of eight to 12 years' custody as appropriate.

It is abundantly clear by now that the decision of this court in Attorney General's Reference Nos 60, 62 and 63 of 2009 (R v Appleby and Others) [2009] EWCA Crim 2693, [2010] 2 Cr App R(S) 46 signals a clear change to the approach to sentence in unlawful act manslaughter cases. There is to be an upward movement in sentences to reflect the new focus on harm under section 143 of the Criminal Justice Act 2003, the sentencing regime for offences of murder contained in Schedule 21 to the Act, and the sterner approach to sentencing in cases involving the carrying of knives and other weapons: see R v Povey [2009] 1 Cr App R(S) 42. In addition, since Appleby Parliament has introduced paragraph 5A to Schedule 21 in stipulating a starting point by way of minimum term of 25 years, where a knife or other weapon is taken to the scene of a murder by an offender who intends to commit any offence or intends to have it available to use as a weapon. For this reason the authorities which precede Appleby, which have been referred to by Mr Valios on behalf of the offender, are of no real value in considering the level of appropriate sentence. We have in mind the following authorities, all of which were drawn to our attention: Attorney General's Reference No 143 of 2002 (R v Davenport) [2003] EWCA Crim 1579, [2004] 1 Cr App R(S) 12; Attorney General's Reference No 5 of 2009 (R v Carbon) [2009] EWCA Crim 1313, [2010] 1 Cr App R(S) 46; and R v Worsman [2009] EWCA Crim 1588, [2010] 1 Cr App R(S) 71.

Some reliance was placed before us, and below, on the decision in R v Carter [2003] EWCA Crim 707, [2003] 2 Cr App R(S) 88, where this court said that where an offender deliberately went out carrying a knife as a weapon, and used it to cause death, he should expect to receive on conviction following a contested trial a sentence in the region of ten to 12 years' custody. Carter was a case in which the offender desired a confrontation. He took with him a knife with a knuckleduster handle which he used to stab the victim a number of times. He was convicted of manslaughter rather than murder on the basis of a lack of the requisite intention. Carter suffers from the disadvantage of preceding not only Appleby, but also the 2003 Act itself and, as was stated by this court in R v Young [2012] EWCA Crim 2618, is not to be regarded as representing good current sentencing guidance.

As to guidelines, there is the Sentencing Guidelines Council's guideline on attempted murder. We do not find this of assistance in considering the appropriate level of sentence, principally because the intention required for such a crime is very different from that in manslaughter, and because of course no death has occurred. There is also a Sentencing Guidelines Council's guideline concerning manslaughter by reason of provocation. For an offence involving a low degree of provocation occurring over a short period, a starting point of 12 years' custody is shown, with a range of between ten years and life.

It seems to us that the principal aggravating feature in this case was that the offender took a knife to the scene. It was an article that he regularly carried and he used it to cause fatal injury. That said, the circumstances require careful evaluation. This is not a case like Carter, where the offender left home knowing that there was to be some form of confrontation with the deceased and chose to take a knife with him. Nor is it a case like Young, where the offender deliberately took a knife with him to a confrontation which was to take place in the street outside his house. Equally, it is not a case like Worsman or Attorney General's Reference No 29 of 2014 (R v Nichols) [2014] EWCA Crim 1314, where the knife was picked up and used in the course of an argument which had broken out.

We consider that this case falls between those two situations. This offender did not anticipate a confrontation, but he unlawfully had with him a knife capable of inflicting lethal injury. He did not produce it at the start of the trouble with Mr John, but chose to pick it up and use it after it fell out of his pocket. He knew that Mr John was unarmed. The knife was used unreasonably and unlawfully in circumstances where there was an obvious risk of serious injury. As was identified in Povey, one of the evils of carrying a knife or a weapon, even if not initially likely to be used or intended to be used, is that it represents a threat to public safety. As the court there observed, "it takes but a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial like a look for a weapon to be produced". Once produced or used, as here, the consequences are often catastrophic. Accordingly, we consider that the judge was justified in describing this as a case of high culpability.

The matter is further aggravated by the offender's poor criminal record. He has many previous convictions spanning a significant period. It includes a conviction for a section 18 offence in 1982, and convictions in 1982, 1989 and 1990 for the possession of an offensive weapon. In 1997 the offender was sentenced to a total of nine years' imprisonment for conspiracy to rob. On that occasion there were specific convictions for possession of a firearm with intent and two for possession of prohibited weapons. In April 2013 (a little over a year before the instant offence) the offender was again convicted of possessing an offensive weapon.

We also consider that the offence is aggravated by the fact that the offender was the aggressor in the initial confrontation, that it was an offence witnessed in a public place, and that the offender made off from the scene and disposed of evidence.

As to mitigation, no credit can be given for a guilty plea. The trial was fully contested. Nor is there any remorse present. It can properly be said that this was not a premeditated offence and that for the reasons already identified the use of the knife was not in contemplation until it fell out of the offender's pocket.

We have taken account of the victim impact statement from the deceased's wife who, as can be imagined, has been badly affected. We have also considered a pre-appeal report which indicates that the offender's behaviour in prison is satisfactory.

If the judge was influenced by the decision in Carter in arriving at the sentence she passed, she was in our judgment wrong to place reliance on it. As we have already stated, sentencing has moved on from that case in the way explained in Appleby. It requires a much greater focus on the fact that a death has been caused. The deceased's death in this case was caused in circumstances of high culpability for the reasons identified by the judge.

Accordingly, in our judgment the sentence of nine years' imprisonment imposed below was not simply lenient but was unduly lenient. We recognise that this is not a case where the knife was carried with a view to the confrontation which ultimately took place. But, nonetheless, it was a dangerous weapon carried unlawfully by a man who had a significant criminal record for carrying such weapons in the past.

In our judgment the least term which should have been imposed upon this offender was one of 14 years' imprisonment. We give effect to that conclusion by granting this Reference and substituting that term for that of nine years' imprisonment imposed below.