Kristian Bailey [2019] EWCA Crim 731
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R v Kristian William Joseph Bailey [2019] EWCA Crim 731 concerned a reference by the Attorney General under section 36 of the Criminal Justice Act 1988 against a sentence of six years’ imprisonment imposed for manslaughter by Lord Justice Fulford, Mr Justice Sweeney and Mr Justice Dingemans. The Court of Appeal found the sentence unduly lenient and increased it to eight years.
Mr Bailey, aged twenty-eight, was convicted of manslaughter at Bristol Crown Court on 23 January 2019, having been acquitted of murder. On 14 July 2018 the defendant and Joe Jennings were sharing heroin at the defendant’s flat when an argument developed. When Mr Jennings picked up a substantial wooden ornament the defendant simultaneously picked up a large kitchen knife with a thirteen-centimetre blade. Mr Jennings pursued the defendant onto the balcony and beat him across the back and shoulders with the ornament with sufficient force to break it. The defendant, who may have been on the ground for part of the incident, swung the knife five times, inflicting four stab wounds to the upper parts of Mr Jennings’ legs and a single fatal stab wound to the heart delivered with at least moderate force. The defendant then fled, concealing and disposing of the knife, and Mr Jennings died at the scene within minutes. The entire altercation lasted eight to twelve seconds. The defendant had eighteen convictions for some fifty offences, including robbery and assault occasioning actual bodily harm in 2012 (thirty months’ imprisonment), battery in 2015 (eighteen weeks’ imprisonment) and malicious wounding in 2017 (ten months’ imprisonment, arising from an incident in which he stabbed a man in the leg with a knife in retaliation for being stabbed with a hypodermic needle).
The jury’s verdict of not guilty of murder but guilty of manslaughter indicated they rejected the defendant’s reliance on lawful self-defence. The judge, His Honour Judge Parker QC, had to sentence under the Sentencing Council guideline for unlawful act manslaughter (applicable to all sentences from 1 November 2018). That guideline sets out four culpability categories with starting points and ranges: category B (high culpability, starting point twelve years, range eight to sixteen years) applies where death was caused in the course of an unlawful act which carried a high risk of death or grievous bodily harm which was or ought to have been obvious to the offender; category C (medium culpability, starting point six years, range three to nine years) applies where death was caused in the course of an unlawful act which involved an intention to cause harm or recklessness as to whether harm would be caused but falls between high and lower culpability; and category D (lower culpability, starting point two years, range one to four years) applies where the offender acted in defence of himself but not amounting to a defence.
Prosecuting counsel submitted the case involved elements of categories C and D. Defence counsel, Mr Ignatius Hughes QC, submitted the case fell squarely into category D because the defendant wanted to defend himself, though he realistically accepted the jury’s verdict must have involved other considerations and conceded the most likely explanation was that death was caused in the course of an unlawful act which carried a high risk of death or grievous bodily harm which was or ought to have been obvious to the defendant, a characterisation which would if standing alone point to category B. The defendant’s counsel emphasised the very short duration of the incident, the lack of premeditation (the defendant grabbed the knife rather than arming himself in advance) and the central element that the defendant was in all material respects acting in self-defence, albeit falling short of a defence.
The trial judge adopted a six-year starting point, which he found appropriate under the guideline. He expressly stated that he would address the element of self-defence as part of the mitigating features rather than at the categorisation stage, principally because by the time of the fatal stabbing and indeed by the time of the stabs before the fatal injury, self-defence was no longer in issue. He then identified statutory aggravating features, namely the use of a knife against a background of the defendant’s previous conviction for unlawful wounding with a knife, and the fact that he was heavily under the influence of drink and Class A drugs at the time of the killing. As to mitigation, the judge found the assault was not planned or premeditated and that the defendant began by trying to defend himself but went far beyond what was necessary, concluding that although this did not bring the starting point down into category D it amounted to significant mitigation. He concluded that the aggravating and mitigating features balanced each other out and imposed a sentence of six years’ imprisonment.
On the reference Mr Polnay, for the Attorney General, submitted that the culpability level was higher than prosecuting counsel had identified below. He contended that given the defendant swung a large kitchen knife at least five times during the fight, causing a deeply penetrating fatal wound to the heart, the death occurred in the course of an unlawful act which carried a high risk of death or grievous bodily harm which was or ought to have been obvious to the defendant, placing the case within category B. The judge had found that the repeated use of a knife went far beyond what was necessary for self-defence and ought to have found high culpability, albeit perhaps slightly below the starting point for category B or at the very least within medium culpability with a significant uplift from that starting point. Mr Polnay further argued that the judge double counted the mitigation by first determining the case fell within medium culpability and then making a further reduction for the element of self-defence. He relied on Attorney General’s Reference (R v Stewart) [2016] EWCA Crim 2238 for the proposition that the Attorney General may depart from the stance taken by the Crown in the court below.
Mr Hughes submitted that the Attorney General was inviting an overly mechanistic approach to the guideline and that the trial judge, who had heard the evidence, was well placed to make the final decision. He emphasised that the defendant had been bullied by his companions earlier in the incident, that the statue used to attack him was of African hardwood which shattered on impact, that the defendant fell to the ground and inflicted some or all of the serious injuries during that part of the incident, and that he therefore simply over-responded to an attack on him. He contended that the central feature for sentencing was the element of self-defence, making this a category D case with perhaps some elements of category C. As to aggravating features, he submitted that the attempt to conceal the weapon was of minor significance because it amounted to no more than hiding the knife under his jacket and jettisoning it when he ran away.
The Court of Appeal rejected Mr Polnay’s submission that the judge had double counted the element of self-defence, finding that the judge had expressly put self-defence to one side when considering the relevant category and did not double count that element of mitigation given the way he described his approach. However, the court accepted Mr Polnay’s principal contention that the judge had incorrectly approached the categorisation of the case. Lord Justice Fulford, giving the judgment of the court, held that it was wrong in principle to move consideration of issues such as self-defence to a later stage in the sentencing process when taking into account the relevant mitigating factors. The judge had erroneously ignored self-defence for the purpose of identifying the offence category because by the time of the stabs before the fatal injury, self-defence was no longer in issue. The court emphasised that self-defence was clearly relevant to identifying the offence category when it did not amount to a defence, particularly with facts such as these (see category D of the guideline). The guideline itself warned against an overly mechanistic application of the factors and instructed the court to balance the characteristics to reach a fair assessment of overall culpability in the context of the circumstances of the offence.
The court found that when the defendant repeatedly swung a large kitchen knife with a thirteen-centimetre blade, stabbing the upper parts of Mr Jennings’ legs and penetrating his heart, it ought to have been obvious to him that there was a high risk he would kill Mr Jennings or cause him grievous bodily harm. There was no other sustainable conclusion. The case therefore fell within category B. However, the court considered that the element of self-defence had real significance in the categorisation of the case in that it provided the context in which this very short-lived altercation occurred. It reminded itself that category D had a starting point of two years’ imprisonment. In evaluating the considerable divergence between the starting points for categories B and D, the court observed that by the time the repeated injuries were inflicted this had ceased to be an incident in which the defendant was defending himself and he had gone on the attack. Therefore the factors most immediately relevant to the fatal stabbing indicated a category B case, for which there needed to be significant downward adjustment to reflect the underlying context of self-defence. The court concluded that the appropriate starting point was six years’ imprisonment.
To that starting point the court added the aggravating features, namely that the offence was committed whilst the defendant was under the influence of heroin, the steps taken to conceal and dispose of the weapon, and perhaps most particularly his poor criminal record which included at least one notable instance of violence. The court held there were no material mitigating factors given self-defence had already operated to reduce the starting point. The aggravating factors viewed cumulatively were significant, leading to an increase from the six-year starting point to eight years’ imprisonment.
In short, the Court of Appeal allowed the Attorney General’s reference, quashed the sentence of six years’ imprisonment, and substituted a term of eight years’ imprisonment, finding that the trial judge had wrongly addressed self-defence at the mitigation stage rather than in determining culpability and had thereby adopted too low a starting point before adjusting for aggravating factors.