Carl Eldred [2019] EWCA Crim 1595
Summary
Carl Eldred [2019] EWCA Crim 1595 concerned an appeal against sentence for manslaughter by the Court of Appeal (Lady Justice Nicola Davies, Lavender J and Nicklin J). The appeal was allowed and the sentence reduced from four years’ imprisonment to three years.
Mr Eldred had pleaded guilty on 5 April 2019 to the manslaughter of his brother Lee Eldred and was sentenced on 17 May 2019 at Maidstone Crown Court, receiving full credit for his plea. The offence had occurred on 28 December 2018 in the course of a journey home by minibus following a late Christmas meal with family and friends.
The facts were that the appellant, his brother, their father Trevor Eldred and three friends had been out drinking and were travelling home in a minibus. Both brothers were assessed as having been heavily intoxicated, described by the driver as “eight out of ten” drunk. The group were initially in good spirits but the appellant began shouting and stood up. After a brief calm period the incident resumed and the appellant punched his brother downwards towards the head repeatedly whilst Lee sat in front of him. One witness thought the appellant struck Lee about five times, though the headrest obscured the view. When their father stood and intervened, the appellant punched him in the face, causing his nose to bleed. Lee Eldred collapsed and CPR was administered. The appellant was immediately distressed, saying “Oh, my God, what have I done?” and later “I’m sorry, it was me” to emergency services. He was arrested and fully accepted responsibility in interview, saying there had been a minor argument in the public house and that he believed Lee was angry and “going to flip” in the taxi. He said he hit him two or three times to the left side of the head to protect himself, did not think he had struck hard, and did not intend to hurt him. The pathologist reported that death resulted from traumatic subarachnoid haemorrhage following one or more blows to the head, with rapid or immediate collapse and bleeding into the subarachnoid space at the base of the brain. The deceased’s significant intoxication was noted as potentially allowing more extreme movement of the head or neck following impact, with lack of anticipation of the blow or blows contributing to the injury.
The sentencing judge recognised the case as truly tragic. She noted that no one suggested the appellant had intended to kill his brother and that the large quantity of alcohol consumed had swept away his inhibitions and unleashed violence totally out of character. She emphasised that the appellant punched his brother several times whilst Lee was unable to defend himself, being drunk and sitting in front of the appellant in a moving vehicle. The judge took account of the appellant’s considerable, immediate and sincere remorse, moving victim personal statements, a letter from the appellant and substantial character references which described him as an honest, decent family man with a partner, children, a successful business and a close relationship with his brother. The family were supportive and forgiving. The judge recognised that the appellant would have to live with the consequences for the rest of his life, which would constitute considerable punishment. Applying the Sentencing Council guideline for unlawful act manslaughter, the judge categorised the case as falling within category C, being a death caused by an unlawful act reckless as to whether harm would be caused. The aggravating factor was the amount of alcohol consumed. Mitigating factors were remorse, the guilty plea, positive good character and lack of premeditation. The judge adopted a notional sentence of six years’ imprisonment after trial, reduced to four years with full credit for the guilty plea.
On appeal Mr Saxby QC on behalf of Mr Eldred accepted the category C categorisation but submitted that the sentence was manifestly excessive. He argued that the blows were not hard and carried no obvious risk of more than minor harm, that the guideline warned against overly mechanistic application of factors, and that a sentence before credit of six years was excessive given there was only one aggravating factor against abundant mitigation. Counsel submitted that a sentence of between four and five years before credit would have been appropriate. He drew attention to the victim personal statements from the appellant’s parents asking for compassion, stating they were a close family, that Lee and Carl loved each other dearly, that the incident was a tragic accident, that Carl would be suffering greatly and that the family should be allowed to heal together. The appellant’s mother separately wrote that there were no winners in the family, that Lee would not want Carl punished and that Carl needed the family’s support for his mental wellbeing.
The court recognised the case as tragic and the sentencing exercise as very difficult. The court was satisfied that alcohol was a significant factor leading both to the disagreement escalating into violence and to enhanced susceptibility to injury on the part of the deceased. The court agreed alcohol was properly treated as an aggravating factor but emphasised the importance of stepping back to make an overall and fair assessment of culpability as required by the guideline. The court held that whether assessed as a borderline case between categories C and D or approached on the basis of overall culpability within category C, a sentence before credit of six years’ imprisonment was manifestly excessive. The aggravating element of intoxication was outweighed by the particular circumstances of the offence and the substantial personal mitigation and genuine remorse. The court considered that the appellant’s culpability would be properly reflected by a starting point of four and a half years’ imprisonment. Applying the same discount for the guilty plea as the sentencing judge, the court substituted a sentence of three years’ imprisonment.
In short, the appeal was allowed and the sentence for manslaughter reduced from four years to three years on the basis that a starting point of six years before credit was manifestly excessive given the balance of aggravating and mitigating features and the appellant’s overall culpability.
Mr Eldred had pleaded guilty on 5 April 2019 to the manslaughter of his brother Lee Eldred and was sentenced on 17 May 2019 at Maidstone Crown Court, receiving full credit for his plea. The offence had occurred on 28 December 2018 in the course of a journey home by minibus following a late Christmas meal with family and friends.
The facts were that the appellant, his brother, their father Trevor Eldred and three friends had been out drinking and were travelling home in a minibus. Both brothers were assessed as having been heavily intoxicated, described by the driver as “eight out of ten” drunk. The group were initially in good spirits but the appellant began shouting and stood up. After a brief calm period the incident resumed and the appellant punched his brother downwards towards the head repeatedly whilst Lee sat in front of him. One witness thought the appellant struck Lee about five times, though the headrest obscured the view. When their father stood and intervened, the appellant punched him in the face, causing his nose to bleed. Lee Eldred collapsed and CPR was administered. The appellant was immediately distressed, saying “Oh, my God, what have I done?” and later “I’m sorry, it was me” to emergency services. He was arrested and fully accepted responsibility in interview, saying there had been a minor argument in the public house and that he believed Lee was angry and “going to flip” in the taxi. He said he hit him two or three times to the left side of the head to protect himself, did not think he had struck hard, and did not intend to hurt him. The pathologist reported that death resulted from traumatic subarachnoid haemorrhage following one or more blows to the head, with rapid or immediate collapse and bleeding into the subarachnoid space at the base of the brain. The deceased’s significant intoxication was noted as potentially allowing more extreme movement of the head or neck following impact, with lack of anticipation of the blow or blows contributing to the injury.
The sentencing judge recognised the case as truly tragic. She noted that no one suggested the appellant had intended to kill his brother and that the large quantity of alcohol consumed had swept away his inhibitions and unleashed violence totally out of character. She emphasised that the appellant punched his brother several times whilst Lee was unable to defend himself, being drunk and sitting in front of the appellant in a moving vehicle. The judge took account of the appellant’s considerable, immediate and sincere remorse, moving victim personal statements, a letter from the appellant and substantial character references which described him as an honest, decent family man with a partner, children, a successful business and a close relationship with his brother. The family were supportive and forgiving. The judge recognised that the appellant would have to live with the consequences for the rest of his life, which would constitute considerable punishment. Applying the Sentencing Council guideline for unlawful act manslaughter, the judge categorised the case as falling within category C, being a death caused by an unlawful act reckless as to whether harm would be caused. The aggravating factor was the amount of alcohol consumed. Mitigating factors were remorse, the guilty plea, positive good character and lack of premeditation. The judge adopted a notional sentence of six years’ imprisonment after trial, reduced to four years with full credit for the guilty plea.
On appeal Mr Saxby QC on behalf of Mr Eldred accepted the category C categorisation but submitted that the sentence was manifestly excessive. He argued that the blows were not hard and carried no obvious risk of more than minor harm, that the guideline warned against overly mechanistic application of factors, and that a sentence before credit of six years was excessive given there was only one aggravating factor against abundant mitigation. Counsel submitted that a sentence of between four and five years before credit would have been appropriate. He drew attention to the victim personal statements from the appellant’s parents asking for compassion, stating they were a close family, that Lee and Carl loved each other dearly, that the incident was a tragic accident, that Carl would be suffering greatly and that the family should be allowed to heal together. The appellant’s mother separately wrote that there were no winners in the family, that Lee would not want Carl punished and that Carl needed the family’s support for his mental wellbeing.
The court recognised the case as tragic and the sentencing exercise as very difficult. The court was satisfied that alcohol was a significant factor leading both to the disagreement escalating into violence and to enhanced susceptibility to injury on the part of the deceased. The court agreed alcohol was properly treated as an aggravating factor but emphasised the importance of stepping back to make an overall and fair assessment of culpability as required by the guideline. The court held that whether assessed as a borderline case between categories C and D or approached on the basis of overall culpability within category C, a sentence before credit of six years’ imprisonment was manifestly excessive. The aggravating element of intoxication was outweighed by the particular circumstances of the offence and the substantial personal mitigation and genuine remorse. The court considered that the appellant’s culpability would be properly reflected by a starting point of four and a half years’ imprisonment. Applying the same discount for the guilty plea as the sentencing judge, the court substituted a sentence of three years’ imprisonment.
In short, the appeal was allowed and the sentence for manslaughter reduced from four years to three years on the basis that a starting point of six years before credit was manifestly excessive given the balance of aggravating and mitigating features and the appellant’s overall culpability.
The appellant was sentenced to 4 years’ imprisonment for the manslaughter of his brother. The brothers had been out with their dad and friends, when on their way home in a minibus, the appellant punched his brother downwards towards the head several times. Death resulted from a traumatic subarachnoid haemorrhage, with a rapid collapse
and usually associated with intoxication.
The appellant was extremely remorseful, and his family were supportive and forgiving.
The judge considered the case fell into category C of the guidelines for unlawful act manslaughter. The aggravating factor was the amount of alcohol the appellant had consumed. The mitigating factors were his remorse, guilty plea, positive good character and lack of any premeditation. The case was borderline category C and D. The aggravating factor of the level of intoxication was outweighed by the particular circumstances of the offence and the substantial personal mitigation and remorse. The sentence was manifestly excessive and was substituted with one of 3 years’ imprisonment.