Gale, R. v

MR JUSTICE SWEENEY: On 9 January 2017, in the Crown Court at Lewes, and at the first opportunity, the Appellant, who is now aged 41, pleaded guilty to preventing a lawful burial (Count 2). On 6 February 2017, at the conclusion of his trial in the same court before Her Honour Judge Barnes, the Honorary Recorder of Brighton and Hove and a jury, the Appellant was acquitted of murder (Count 1), but convicted in the alternative of manslaughter by reason of loss of control. On 13 March 2017, the judge sentenced the Appellant to 12 years' imprisonment for the manslaughter and to three years and eight months imprisonment consecutive for preventing a lawful burial, making a total sentence of 15 years and eight months' imprisonment.

There was a co-defendant, Stewart Robinson, who was convicted on Count 2 and was sentenced to four years' imprisonment.

The Appellant now appeals against sentence on six grounds for which permission was given by the single judge. He has this morning abandoned his renewed application for leave on two further grounds in relation to which permission was refused. In any event, it is common ground between the parties that the judge made a mathematical error in calculating the effect of discount for plea in relation to Count 2 and that the sentence for that offence should have been expressed as being one of three years and four months' imprisonment.

The facts, as found by the judge for the purposes of sentence, can be summarised as follows. At the time of the killing on Easter Saturday 19 April 2014, the Appellant was in his late thirties, six foot eight tall, strong and fit, whereas the victim Mark Manning, who was a brave man (being involved in bomb disposal) and described as being a loving and decent individual, was in his fifties, five foot eight tall and overweight.

The victim had invested in the purchase and sale of motor vehicles with the Appellant. In the result the Appellant owed the victim a considerable sum of money, about which the Appellant had become increasingly anxious and was giving the victim the run around, fobbing him off with numerous lies, the use of which was the Appellant's stock in trade.

On the day of the killing, the victim had met the Appellant at garage premises part owned by the Appellant to discuss the money which the Appellant owed. Up to that point that day the victim had been in a perfectly normal frame of mind and had appeared to be his normal self. Indeed, he had popped in to check on his father, as he did every day, and had spoken to his sister.

The conversation between the victim and the Appellant had started off perfectly normally and the appellant had thought that he had got away without paying over the money that he owed - by persuading the victim that he could not have the money that weekend, but that it would be given to him very, very shortly thereafter. The victim had turned to walk away, but then had suddenly turned around and gone towards the Appellant, now with an axe in his hand, and in that sudden moment the Appellant had feared serious violence and had thereafter lost control. There was no scuffle between the two men, and the victim had neither injured nor even touched the Appellant - who was completely unmarked. Rather, and initially in self-defence, the Appellant had armed himself with a Stilson wrench, but had then carried out a sustained, in the sense of repeated, and unlawful attack to the face and head of the victim, causing substantial fractures and death. The provocation was on any view, said the judge, short-lived and of a low degree. Likewise, the Appellant's loss of control had been short- lived, he had regained composure and had then set about immediately preventing the detection of what he had done. The body was left in the garage premises overnight, and the next morning was moved by the Appellant, who had recruited the co-accused Robinson to help him, to a ditch next to a wooded area where it was secreted.

The Appellant had got rid of the weapons and a mobile phone, and had gone about the rest of the Bank Holiday weekend with his family - in a way, said the judge, that could only be seen as callous and extraordinary. He had gone off with friends. He had been laughing, eating and drinking. He had also set about lying, and preparing to lie, to protect himself from what he had done. He had told, amongst others, the victim's sister and son a lying story about having taken the victim to a train station. He had also set about misleading the police as well.

However, police investigations, including forensic examination of the garage, had exposed the lies that the Appellant had put forward, and in May 2015 he had been charged with murder, albeit that the victim's body had not by then been found. At that time, therefore, the Appellant had been fairly confident that the evidence against him was all going to be circumstantial. The Appellant, said the judge, had set the police about a huge operation to try and prove something against him with no body, and he had continued the misery and nightmare for the victim's family in the process. Albeit that the victim's corpse had not been dismembered, the Appellant had gone about preventing the lawful burial of the victim in a systematic and callous manner - such as to make that offence a very serious one of its type in its own right, going far beyond being simply an aggravating feature of the manslaughter, and attracting a consecutive sentence. That offence had only been brought to an end in May 2016 when Robinson had been arrested and had taken the police to the victim's body. It was against that background that the judge imposed the sentences to which we have referred.

Using their final numbering, the grounds of appeal in relation to which leave was granted were as follows:

Ground 1. The starting point for the offence of manslaughter was too high and should have been between three and eight years. The jury must have concluded that the Appellant's loss of control was attributable to his fear of serious violence. Applying the manslaughter by reason of provocation Guideline, the Appellant fell within the category of a higher degree of provocation.

Ground 3. The sentence for the manslaughter ought to have been mitigated by the Appellant's previous non- violent character, the initial self-defence before losing control, and his guilty plea to Count 2.

Ground 4. The starting point for the offence of preventing a lawful burial was too high and should have been between three and four years. The actions did not involve dismemberment of the body or persistent actions in hiding the body.

Ground 5. The sentence of three years and eight months for preventing a lawful burial does not reflect the intended full credit on a starting point of five years.

Ground 7. Insufficient regard was paid by the judge to the principle of totality.

Ground 8. In all the circumstances, the sentence was manifestly excessive.

In view of their abandonment, it is not necessary to refer to the other grounds.

On behalf of the Appellant, Mr Bromley-Martin QC took us through the criteria in relation to the defence of loss of control and through the pertinent aspects of the relevant sentencing guideline in relation to sentence in such cases. Mr Bromley-Martin submitted that:

On behalf of the Respondent, in his written submissions Mr Atkinson QC submitted, in relation to Ground 1, that the judge had had regard to the relevant Guideline and was entitled to conclude that the provocation was sho rt- lived and of low measure, whereas the attack by the Appellant had been sustained and had involved an unnecessary level of violence. Those conclusions were supported by the evidence of admissions by the appellant to Chloe Gale and the evidence of the pa thologist.

As to ground 3, Mr Atkinson submitted that the judge was seized of the Appellant's antecedents and had given a modified good character direction to the jury. The judge had explicitly referred to the initial actions of self-defence in her sentencing remarks. The guilty plea on Count 2 had been reflected in the sentence on that Count. Therefore, the judge had been fully seized of the evidence, and had taken account of all the mitigating features for the offence of manslaughter.

In relation to ground 4, Mr Atkinson submitted that the judge had been entitled to take into account the behaviour of the Appellant after disposing of the body. That included the steps he had taken to frustrate the investigation and conceal the death. In the circumstances, the judge had not been wrong to take a starting point of five years.

As to the remaining grounds, Mr Atkinson submitted that the judge had been entitled to pass a consecutive sentence on Count 2, as was now conceded, and in doing so had avoided double-counting. She had explicitly referred to the principle of totality in her sentencing remarks, and the fact that the Appellant had received a lesser sentence than his co-accused on Count 2, despite being the principal offender, reflected the fact that the principle had been taken into account. Finally, as we have touched o n already, Mr Atkinson agreed that the judge had made a mathematical error in relation to the discount for plea in relation to Count 2.

To state the obvious, a judge who has presided over a trial is entitled, provided their conclusions are consistent with the verdicts and the evidence, to sentence upon a factual basis of which they are sure. It is clear from the content and tone of her sentencing remarks that, in this case, the very experienced judge was sure of the factual basis that she adumbrated and that that basis was consistent with both the verdicts and the evidence.

The authorities, such as Attorney General's Reference Nos 74, 95 and 118 of 2002 [2003] 2 Cr.App.R (S) 42, Ward [2013] 2 Cr.App.R (S) 35, Attorney General's Reference No 29 of 2014 [2014] EWCA Crim 1314, Bird [2013] 1 Cr.App.R (S) 69 and Lodge [2014] EWCA Crim. 466, variously make clear that in loss of control manslaughter cases (1) the Sentencing Council Guideline in relation to manslaughter via provocation still applies; (2) however, the court must take into account of the existence of a higher and different threshold for loss of control manslaughter than that which existed at common law for manslaughter via provocation; (3) on the other hand, the court must also take into account the greater significance now given to the loss of life in manslaughter cases; (4) the judge must make assumptions in favour of the offender that (a) at the time of the killing he had lost his self-control, (b) he was caused to lose his self-control by things said or done, normally by the person killed, (c) the loss of control was reasonable in all the circumstances, and (d) the circumstances were such as to make the loss of control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter; (5) nevertheless, even where the loss of control is on the basis of fear of serious violence, it is still necessary to decide where in the spectrum the offence falls - which may result in the conclusion that there was significantly less than a substantial degree of provocation. All will depend on the particular facts of the individual case. Thus, whilst the Guideline indicates that actual or anticipated violence by the victim will generally be regarded as involving a higher degree of provocation, and that if the offender's actions were motivated by fear culpability will generally be lower, the actual outcome is highly fact-specific and dependent upon the judge's analysis of the particular case.

In this case, the judge had the great advantage of having presided over the trial and the factual findings that she made, which as we have indicated were open to her, covered the matters that she was required to take into account. At all events, it seems to us that, for the reasons that we have given, combined with those advanced on behalf of the Respondent, there is no merit in grounds 1, 3, 4, 7 and 8. However, as to ground 5, and as we have touched on above, the judge clearly did fall into mathematical error in relation to the sentence imposed on Count 2.

To remedy that, we quash the term of three years and eight months imposed on that Count and substitute for it a sentence of three years and four months - which will remain consecutive to the sentence for manslaughter. Thus, the total sentence is reduced to one of 15 years and four months' imprisonment. To that very limited extent, this appeal is allowed.