Daicov [2019] EWCA Crim 84
Summary
R v Daicov [2019] EWCA Crim 84 concerned an appeal against an extended sentence of seventeen years (comprising a custodial term of twelve years with an extended licence period of five years) imposed by HHJ Dennis QC in the Crown Court at Blackfriars following the appellant’s conviction for manslaughter by loss of control on 1 March 2018.
The appellant, aged 27 and from Moldova with no previous convictions, had been acquitted of murder but convicted of manslaughter. On 8 October 2017 in Hounslow at around 3am, he met a local prostitute and they went into an alleyway together. The deceased, Kamil Metlev, a 31 year old Polish construction worker, followed them and climbed over a wall to confront the appellant. The prostitute then ran off. The appellant responded by launching a sustained attack, punching Mr Metlev to the ground and kicking and stamping on his head whilst he was defenceless. The deceased suffered multiple severe injuries concentrated on his head and neck, including extensive bruising, cuts, damage to his left ear and the loss of several teeth, and multiple fractures to the facial bones, eye sockets, jaw, nose and both cheekbones. No defensive injuries were present, indicating the deceased lost consciousness at an early stage. At one point the appellant walked away, but after a very short time he returned and delivered two further kicks to the deceased’s head having taken a run up. The appellant then left and engaged in conversation outside a club as if nothing had happened. The deceased remained unconscious and died approximately 45 minutes after the violence ended. When arrested, the appellant initially denied being present and told repeated lies before eventually accepting, after viewing CCTV footage, that he had met a prostitute and used violence.
At trial the appellant’s case was that the deceased and the prostitute were acting together to ambush and rob him. He said that the deceased had claimed the prostitute was his sister and had threatened to call the police, had threatened him with violence and had grabbed his clothes looking for his wallet. The appellant said he believed he was under attack and would suffer serious violence, became very angry and wanted to hurt Mr Metlev. He did not know how many times he had kicked him and could not explain why he had returned to kick him again when the deceased was on the ground posing no threat. The prosecution did not accept this account of a set-up and suggested the deceased had followed the appellant either as a voyeur or to engage in sexual activity with the prostitute himself. The judge at sentencing observed that it was unclear which explanation was correct and that this uncertainty may have underpinned the jury’s verdict given the burden and standard of proof. The judge made clear he did not accept that this was an attempted robbery but that the true position remained uncertain and unresolved. He was, however, entitled to conclude that the appellant was in fear of serious violence but not that this was a pre-planned robbery with the deceased and prostitute acting together.
In sentencing, the judge found the appellant to be dangerous within the meaning of the Criminal Justice Act 2003 and imposed an extended sentence. He identified five factors supporting that finding: first, the nature and extent of the violence used, which was sustained and went beyond what was necessary when confronted by an unarmed man; second, a preliminary report by Dr Frank Farnham, a consultant psychiatrist, which found extreme anger on the appellant’s part and referred to an abnormality of mental functioning involving extreme anger and disregard for the consequences of his actions, though Dr Farnham’s preliminary view of an underlying personality or autistic spectrum disorder was not supported by subsequent assessment by clinical neuropsychologist Dr Michael Watts; third, the pre-sentence report which indicated apparent lack of remorse and lack of understanding of the seriousness of his actions; fourth, the fact that the appellant had walked fifteen to twenty metres away from the deceased before returning to deliver two further kicks to the deceased’s head with a run-up when the deceased posed no threat, which the judge described as “entirely grotesque”; and fifth, the appellant’s complete disregard for the deceased’s plight in leaving him motionless and bleeding without summoning help. The judge took a starting point for the custodial term of twelve years, identifying aggravating factors including sustained violence, use of severe force with kicks to the head, the return to deliver further kicks, the fact it occurred late at night in a dark alley after drinking, and the failure to summon medical assistance. Mitigating features included previous good character, absence of premeditation, and the intention to cause really serious harm rather than to kill. The judge concluded that the sentence after trial for manslaughter would have been sixteen years’ custody and gave 25 per cent credit for the appellant’s early acceptance of guilt of manslaughter, resulting in the custodial term of twelve years.
The appellant advanced two grounds of appeal. First, that the judge erred in finding him dangerous when that finding was essentially based on the circumstances of the offence itself. Second, that the judge wrongly regarded the qualifying trigger for the loss of control as “short-lived and of low measure”, leading to an excessive starting point.
On dangerousness, Lord Justice Males, giving the judgment of the court, noted that in cases of manslaughter by loss of control, the court must make certain assumptions in favour of the defendant as set out in Attorney General’s Reference Nos 74, 95 and 118 of 2002 [2002] EWCA Crim 2982 and reiterated in R v Brook [2012] EWCA Crim 136, namely that the offender had lost self-control, was caused to do so by things said or done normally by the deceased, the loss of control was reasonable in all the circumstances, and the circumstances were sufficiently excusable to reduce the gravity from murder to manslaughter. As explained in R v Gale [2018] EWCA Crim 120, loyalty to the jury’s verdict requires these assumptions to be made. The court emphasised that a verdict of manslaughter by loss of control does not preclude a finding of dangerousness, but such a finding must not be made solely by reference to the facts of the offence. In Brook, the court held it was difficult to see how a loss of control which was reasonable in all the circumstances could provide the basis for a conclusion of dangerousness. The court examined the five factors relied upon by the judge. It accepted that the judge was entitled to regard the return to kick the deceased twice more after walking away as having taken place after the appellant had regained self-control and as motivated by extreme anger rather than any fear of violence, a view consistent with and loyal to the jury’s verdict. Taking the factors in combination – including the psychiatric evidence of extreme anger based on the appellant’s own account, the apparent lack of remorse, the return to inflict further violence when the deceased posed no threat, and the complete disregard shown by leaving the deceased without summoning help – the judge was entitled to form the view that the appellant was dangerous. The judge had undertaken his task faithfully to the jury’s verdict and had not relied solely on the nature of violence inflicted during the loss of control but had identified other factors justifying his finding. The extended sentence was therefore proper.
On the starting point, the court noted that the applicable guideline was the Sentencing Guidelines Council guideline on Manslaughter by Provocation from 2005, as the new Sentencing Council guideline was not yet in force. As explained in R v Ward [2012] EWCA Crim 3139 and Gale, the court must take into account the higher threshold for loss of control manslaughter compared to common law provocation, but also the greater significance now given to the loss of life. Even where the loss of control was based on fear of serious violence, it was necessary to decide where in the spectrum the offence fell, which might result in the conclusion that there was significantly less than a substantial degree of provocation. The outcome was highly fact-specific. Mr Clark submitted that although the qualifying trigger was short-lived, it was nevertheless substantial because the jury’s verdict required acceptance that the appellant was in fear of being the victim of robbery with the deceased and prostitute working together, and therefore the judge should have taken a starting point of eight years rather than twelve. The court rejected this submission. It held that even in cases of fear of serious actual or anticipated violence, the appropriate sentence was highly fact-specific and dependent on the judge’s analysis. The provocation took place over a very short period of seconds, and the judge who had heard the evidence was entitled to assess it as he did. There were no grounds on which his analysis could be regarded as resulting in a manifestly excessive sentence.
In short, the appeal against sentence was dismissed, the court finding that the judge was entitled to make a finding of dangerousness based on factors going beyond the offence itself and to adopt a starting point of twelve years for the custodial term given the brief and limited nature of the qualifying trigger.
The appellant, aged 27 and from Moldova with no previous convictions, had been acquitted of murder but convicted of manslaughter. On 8 October 2017 in Hounslow at around 3am, he met a local prostitute and they went into an alleyway together. The deceased, Kamil Metlev, a 31 year old Polish construction worker, followed them and climbed over a wall to confront the appellant. The prostitute then ran off. The appellant responded by launching a sustained attack, punching Mr Metlev to the ground and kicking and stamping on his head whilst he was defenceless. The deceased suffered multiple severe injuries concentrated on his head and neck, including extensive bruising, cuts, damage to his left ear and the loss of several teeth, and multiple fractures to the facial bones, eye sockets, jaw, nose and both cheekbones. No defensive injuries were present, indicating the deceased lost consciousness at an early stage. At one point the appellant walked away, but after a very short time he returned and delivered two further kicks to the deceased’s head having taken a run up. The appellant then left and engaged in conversation outside a club as if nothing had happened. The deceased remained unconscious and died approximately 45 minutes after the violence ended. When arrested, the appellant initially denied being present and told repeated lies before eventually accepting, after viewing CCTV footage, that he had met a prostitute and used violence.
At trial the appellant’s case was that the deceased and the prostitute were acting together to ambush and rob him. He said that the deceased had claimed the prostitute was his sister and had threatened to call the police, had threatened him with violence and had grabbed his clothes looking for his wallet. The appellant said he believed he was under attack and would suffer serious violence, became very angry and wanted to hurt Mr Metlev. He did not know how many times he had kicked him and could not explain why he had returned to kick him again when the deceased was on the ground posing no threat. The prosecution did not accept this account of a set-up and suggested the deceased had followed the appellant either as a voyeur or to engage in sexual activity with the prostitute himself. The judge at sentencing observed that it was unclear which explanation was correct and that this uncertainty may have underpinned the jury’s verdict given the burden and standard of proof. The judge made clear he did not accept that this was an attempted robbery but that the true position remained uncertain and unresolved. He was, however, entitled to conclude that the appellant was in fear of serious violence but not that this was a pre-planned robbery with the deceased and prostitute acting together.
In sentencing, the judge found the appellant to be dangerous within the meaning of the Criminal Justice Act 2003 and imposed an extended sentence. He identified five factors supporting that finding: first, the nature and extent of the violence used, which was sustained and went beyond what was necessary when confronted by an unarmed man; second, a preliminary report by Dr Frank Farnham, a consultant psychiatrist, which found extreme anger on the appellant’s part and referred to an abnormality of mental functioning involving extreme anger and disregard for the consequences of his actions, though Dr Farnham’s preliminary view of an underlying personality or autistic spectrum disorder was not supported by subsequent assessment by clinical neuropsychologist Dr Michael Watts; third, the pre-sentence report which indicated apparent lack of remorse and lack of understanding of the seriousness of his actions; fourth, the fact that the appellant had walked fifteen to twenty metres away from the deceased before returning to deliver two further kicks to the deceased’s head with a run-up when the deceased posed no threat, which the judge described as “entirely grotesque”; and fifth, the appellant’s complete disregard for the deceased’s plight in leaving him motionless and bleeding without summoning help. The judge took a starting point for the custodial term of twelve years, identifying aggravating factors including sustained violence, use of severe force with kicks to the head, the return to deliver further kicks, the fact it occurred late at night in a dark alley after drinking, and the failure to summon medical assistance. Mitigating features included previous good character, absence of premeditation, and the intention to cause really serious harm rather than to kill. The judge concluded that the sentence after trial for manslaughter would have been sixteen years’ custody and gave 25 per cent credit for the appellant’s early acceptance of guilt of manslaughter, resulting in the custodial term of twelve years.
The appellant advanced two grounds of appeal. First, that the judge erred in finding him dangerous when that finding was essentially based on the circumstances of the offence itself. Second, that the judge wrongly regarded the qualifying trigger for the loss of control as “short-lived and of low measure”, leading to an excessive starting point.
On dangerousness, Lord Justice Males, giving the judgment of the court, noted that in cases of manslaughter by loss of control, the court must make certain assumptions in favour of the defendant as set out in Attorney General’s Reference Nos 74, 95 and 118 of 2002 [2002] EWCA Crim 2982 and reiterated in R v Brook [2012] EWCA Crim 136, namely that the offender had lost self-control, was caused to do so by things said or done normally by the deceased, the loss of control was reasonable in all the circumstances, and the circumstances were sufficiently excusable to reduce the gravity from murder to manslaughter. As explained in R v Gale [2018] EWCA Crim 120, loyalty to the jury’s verdict requires these assumptions to be made. The court emphasised that a verdict of manslaughter by loss of control does not preclude a finding of dangerousness, but such a finding must not be made solely by reference to the facts of the offence. In Brook, the court held it was difficult to see how a loss of control which was reasonable in all the circumstances could provide the basis for a conclusion of dangerousness. The court examined the five factors relied upon by the judge. It accepted that the judge was entitled to regard the return to kick the deceased twice more after walking away as having taken place after the appellant had regained self-control and as motivated by extreme anger rather than any fear of violence, a view consistent with and loyal to the jury’s verdict. Taking the factors in combination – including the psychiatric evidence of extreme anger based on the appellant’s own account, the apparent lack of remorse, the return to inflict further violence when the deceased posed no threat, and the complete disregard shown by leaving the deceased without summoning help – the judge was entitled to form the view that the appellant was dangerous. The judge had undertaken his task faithfully to the jury’s verdict and had not relied solely on the nature of violence inflicted during the loss of control but had identified other factors justifying his finding. The extended sentence was therefore proper.
On the starting point, the court noted that the applicable guideline was the Sentencing Guidelines Council guideline on Manslaughter by Provocation from 2005, as the new Sentencing Council guideline was not yet in force. As explained in R v Ward [2012] EWCA Crim 3139 and Gale, the court must take into account the higher threshold for loss of control manslaughter compared to common law provocation, but also the greater significance now given to the loss of life. Even where the loss of control was based on fear of serious violence, it was necessary to decide where in the spectrum the offence fell, which might result in the conclusion that there was significantly less than a substantial degree of provocation. The outcome was highly fact-specific. Mr Clark submitted that although the qualifying trigger was short-lived, it was nevertheless substantial because the jury’s verdict required acceptance that the appellant was in fear of being the victim of robbery with the deceased and prostitute working together, and therefore the judge should have taken a starting point of eight years rather than twelve. The court rejected this submission. It held that even in cases of fear of serious actual or anticipated violence, the appropriate sentence was highly fact-specific and dependent on the judge’s analysis. The provocation took place over a very short period of seconds, and the judge who had heard the evidence was entitled to assess it as he did. There were no grounds on which his analysis could be regarded as resulting in a manifestly excessive sentence.
In short, the appeal against sentence was dismissed, the court finding that the judge was entitled to make a finding of dangerousness based on factors going beyond the offence itself and to adopt a starting point of twelve years for the custodial term given the brief and limited nature of the qualifying trigger.
The appellant was acquitted of murder and convicted of manslaughter by loss of control, he was sentenced to an extended sentence of 17 years, comprising a custodial term of 12 years and an extended licence period of 5 years. He appealed against sentence on the ground that the finding of dangerousness was wrong as it was based on the circumstances of the offence itself and that the judge was wrong to regard the qualifying trigger of loss of control as “short-lived and of low measure”.
Th appellant had been out and met a prostitute, an agreement was reached for sex to take place, and they went into an alley together. The deceased followed them and confronted the appellant, the prostitute ran off. The appellant reacted by attacking the deceased, punching him to the ground and kicking and stamping on his head.
The appellant’s case was that the deceased and prostitute were acting in concert with a view to ambushing him, he believed he was under attack and would suffer serious violence from the deceased. The prosecution did not accept there had been such a set-up suggesting the deceased had entered the alley as a voyeur or to engage in sexual activity with the prostitute himself. The judge concluded that the appellant was in fear of serious violence but not that this was a pre-planned robbery.
Held: the judge was entitled to form the view that the appellant was dangerous. He was faithful to the verdict of the jury and identified other factors which justified the finding. The qualifying trigger took place over a very short period and it was for the judge to assess how that should be characterised, he was entitled to reach the conclusion that he did. The appeal was dismissed.