S [2019] EWCA Crim 1443

S [2019] EWCA Crim 1443 concerned an appeal by a 16‑year‑old convicted of manslaughter by reason of loss of control, who was sentenced at St Albans Crown Court to seven years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The Court of Appeal (Lord Justice Holroyde, Mr Justice Morris and His Honour Judge Michael Chambers QC sitting) dismissed the appeal.

The appellant had stabbed to death his older sister’s boyfriend, RU, at the family home in Watford on 10 July 2017. The appellant’s parents were abroad; the appellant, his sister PS (aged 18) and their 10‑year‑old brother were staying at home. RU had stayed overnight with PS three days earlier, but the relationship was kept secret from the family. On 10 July, while the appellant was out, PS invited RU to her bedroom in a ground‑floor annex. The appellant returned home to find the annex door and the living‑room door locked. He went into the garden, looked through the curtains and saw through a gap a naked man on top of his sister having sex. The appellant knocked loudly; PS told RU to hide in the garage, then opened the door after a few minutes. The appellant, very angry, pushed her aside demanding “Where is he?” and searched the house. He found RU sitting on the garage floor. RU did not stand or speak and shielded his face with his hands. The appellant struck him three or four times with a knife. RU died at the scene from a deep stab wound to the chest which pierced the pulmonary artery; there were also stab wounds to the back and a defensive injury to the left hand. The appellant immediately told a neighbour and then the police that he had stabbed RU.

The appellant raised three defences at trial: lack of intention to cause serious harm, self‑defence and loss of control. The jury rejected the first two but accepted the partial defence of loss of control. The judge’s direction explained that the jury could accept the defence if the appellant did or might have lost control triggered by fear of serious violence from RU or by his mistaken belief that things had been done constituting circumstances of an extremely grave character, causing a justified sense of being seriously wronged. The jury evidently found the defence established.

The sentencing judge applied the Sentencing Council’s Definitive Guideline on Manslaughter by reason of loss of control and the guideline on sentencing children and young people. The prosecution submitted the case fell within category A (high culpability), the defence contended for category C (lower culpability). The judge concluded that culpability fell within category B (medium). He rejected category A because the loss of self‑control was not in circumstances which only just met the criteria for a qualifying trigger. He rejected category C, which required that the qualifying trigger represented a very high degree of provocation, on the basis that RU himself had done nothing to provoke the appellant. The judge noted that the appellant had jumped to the wrong conclusion that his sister was being raped, had not asked any questions when she opened the door, and had only one thought in mind – to find the man and deal with him. RU was cowering in the garage at the time of the attack.

The judge identified the use of a knife as an aggravating feature and noted that he took the view the appellant had intended to kill, using the weapon more than once with severe force to the chest. He identified mitigation: no previous convictions, some remorse, and age. He stated that for an adult the starting point in category B was eight years with a range up to 12 years, and that this was a serious case within category B for which he would look at the high regions of that range, around 10½ to 11 years. He then applied a reduction for age in accordance with the guideline for children and young people and arrived at seven years’ detention.

The appellant advanced four grounds of appeal. First, he contended that the judge erred in assessing culpability and should have placed the case in category C. The appellant argued that the judge wrongly approached the concept of “provocation” in the guideline as if it retained concepts from the former defence under the Homicide Act 1957 rather than reflecting the wider statutory defence under the Coroners and Justice Act 2009, that the judge was wrong to find little or no evidence of fear of serious violence from RU, and that the jury’s finding necessarily implied the defendant had lost self‑control because of things done constituting circumstances of an extremely grave character (the mistaken belief his sister had been raped), which amounted to an exceptionally high degree of provocation. Ms Darlow QC for the appellant submitted that given the circumstances relied on as the qualifying trigger and necessarily accepted by the jury, the judge was bound to place the case in category C.

The Court of Appeal held that the judge had been entitled to sentence on the basis that the jury accepted the possibility the appellant genuinely believed his sister had been raped. The court agreed with the judge that there was no real basis for fear of serious violence from RU. The court held that in a case where the defence is established other than by reason of fear of serious violence, the thing done or said necessarily amounts to circumstances of an extremely grave character; but the three guideline categories show a range of culpability within such circumstances. The judge had correctly rejected category A. As to category C, the relevant question was whether the qualifying trigger “represented a very high degree of provocation” in the non‑technical sense of the extent to which the offender was caused to act as he did. The court held that the judge had been entitled to conclude the degree of causal link was not at the most extreme end. By the time the appellant entered the bedroom some minutes had passed, his sister was no longer being subjected to the perceived assault and did not appear distressed, the appellant asked no questions and had only one thought (to find and deal with the man), RU himself had not contributed to the mistaken belief, and the stabbing took place later in the garage. The judge had been entitled to reject category C and find category B.

Secondly, the appellant contended the judge erred in treating intention to kill as an aggravating factor when it is not listed in the guideline as such; rather, intention to cause serious bodily harm (as opposed to intention to kill) is expressly listed as a mitigating factor. The court accepted this ground. The judge had been entitled on the facts (the number and force of wounds) to conclude there was intention to kill, but it was clear under the guideline that such intention is not an aggravating factor. The judge had referred to intention to kill in the context of aggravating factors and as one of the reasons for considering the case serious within category B. To that extent the judge erred, and one of the two reasons for increasing the notional adult sentence from the eight‑year starting point was not warranted.

Thirdly, the appellant submitted the judge increased the notional adult sentence excessively for the single true aggravating factor (use of the knife) and failed to reduce it sufficiently or at all for the clear mitigation: no previous convictions, good character, remorse and positive pre‑sentence reports. Fourthly, the appellant contended the judge failed to give adequate weight to age, made no reference to preventing reoffending or rehabilitation, and did not sufficiently reduce the total sentence for youth. The total reduction from around 11 or 12 years to seven years (roughly 60 per cent) meant the judge gave little or no weight to mitigation or only minimal reduction for age.

The court held that the judge’s approach to the reduction for age was clearly expressed and correct, and welcomed the appellant’s positive progress in custody. As to mitigation, the judge had taken account of relevant factors in reaching the notional adult sentence in the high regions of category B. However, the court considered that a figure of around 10½ to 11 years after mitigation represented a tough sentence, and there was some force in the submission that the judge did not reduce it sufficiently for mitigation.

The court concluded that the judge’s analysis of the facts in this unusual case was careful, detailed and well reasoned. He had presided over the trial and heard all the evidence, and was entitled to consider the use of the knife in the particular circumstances a substantial aggravating factor. In two respects the sentence was open to criticism: the judge should not have treated intention to kill as an aggravating factor, and he might well have applied a greater reduction for mitigation. The result was a sentence at the high end of the appropriate range. However, taking everything into account, the court concluded that in all the circumstances the sentence of seven years was not manifestly excessive. In short, although the judge erred in treating intention to kill as aggravation and might have given greater weight to mitigation, his careful assessment of an unusual case in which category B culpability and substantial use of a knife were correctly identified meant the overall sentence of seven years’ detention was not manifestly excessive, and the appeal was dismissed.