Weekly Digest: 29 October
28 October 2018
This week’s Digest considers four recent judgments of the Court of Appeal (Criminal Division). The first is an appeal against conviction, where the issue was whether the defence of loss of control should have been left to the jury; the second is a reference by the Attorney General of an unduly lenient sentence passed in respect of a firearms offence; the third is an appeal against sentence imposed for the offence of neglecting a child; the fourth and final judgment is an appeal against a sentence imposed for manslaughter.
R v Goodwin  EWCA Crim 2287
The judgment, available here, was handed down by Davis LJ on 05.10.18.
The issue in this case was whether the judge was right not to leave a defence of loss of control to the jury for consideration. The appeal was dismissed; despite the Court taking issue with some of the judge’s reasoning, his analysis of the third element of the defence – i.e. whether a person in the defendant’s circumstances might have reacted in the same or in a similar way – settled the matter against the appellant. The Court also confirmed that the third element of the defence was just as much a matter for rigorous analysis by the judge as the first two components.
The appellant (‘AG’) sought leave to challenge his conviction for murder on the ground that the trial judge failed to leave to the jury the defence of loss of control contained in s. 54 of the Coroners and Justice Act 2009 (‘the 2009 Act’). The facts of the case revealed that AG had killed the deceased by striking him repeatedly with a hammer at least 18 times. AG’s case at trial was that the deceased had attacked him first with a hammer without warning. AG gave evidence to the effect that he could only recall striking three blows and could not explain the extent of the deceased’s injuries.
At the conclusion of the evidence, the trial judge rejected the defendant’s submission that loss of control should be left to the jury; he concluded that there was insufficient evidence, even on an interpretation most favourable to the defendant, for the defence to be left to the jury. AG contended that the judge was wrong in his analysis. Although the judge ruled in favour of AG on the first component of the defence (i.e. D’s acts resulted from a loss of self-control: s. 54(1)(a) of the 2009 Act), the conclusion that there was not sufficient evidence of a qualifying trigger was erroneous. Further, as to the third statutory component – i.e. whether a person in D’s circumstances might have acted in the same or a similar way (s. 54(1)(c)) – this was a matter to be left to the jury and, therefore, not a matter for the judge.
The appeal was dismissed and the conviction found to be safe. Despite concerns regarding the judge’s approach when considering the first two limbs of the defence, the matter was settled against AG through the judge’s assessment of the third statutory component. Here, on the evidence, after the first three blows struck by AG himself, he had then repeatedly struck the deceased, a much older man, whilst he was lying on the ground in no position to resist. Moreover, the assault lasted some 5 minutes. This was more than enough to justify the judge’s conclusion that someone in AG’s circumstances would most probably not have acted in the same or a similar way. Further, the Court noted that the third component of the defence required just as rigorous an evaluation by the judge as the first two; it was not a matter for the jury (see Gurpinar  EWCA Crim 178,  1 Cr App R 463).
R v Capitao  EWCA Crim 2377
The judgment, available here, was handed down by Simon LJ on 04.10.18.
The Attorney General referred the offender’s sentence to the Court of Appeal on the basis that it was unduly lenient. The focus of the Attorney General’s submissions were that a sentence of five years for a serious firearms offence was too lenient. The Court accepted this and substituted a sentence of seven years’ imprisonment; this was on its facts a serious offence and public policy considerations applied because of the prevalence and gravity of crimes concerning the possession and/or use of firearms.
This was a reference by the Attorney General (‘AG’) under s. 36 of the Criminal Justice Act 1988 to refer sentences passed on the offender (‘MC’) to the Court as being unduly lenient. The focus of the AG’s reference was on a sentence passed, at the same time as others for three further offences, in respect of a conviction for possessing a prohibited firearm contrary to s. 5(1)(aba) of the Firearms Act 1968, an offence for which MC received five years’ imprisonment. The firearm in question was a 9mm Parabellum English Browning High Power Mark 1 type which had been found, with MC’s DNA on it, in a loft hatch in the communal area directly outside MC’s front door. The firearm, although not in working order, was capable of being fired manually. What was more, MC had carried out research on how to restore the firearm to technical working order.
For the AG, attention was drawn to the following in MC’s case: (1) the firearm was a genuine firearm which was capable of being fired manually; (2) the firearm was intended to be restored to working order by MC; (3) it was a firearm for which MC could have had no lawful use; (4) MC had a number of previous convictions, including previous convictions for serious violent offences and the commission of offences while on bail. Further, public policy considerations applied because of the prevalence and gravity of crime concerning the possession and/or use of firearms.
The Court found that the sentence was unduly lenient and that the AG had been right to focus his complaint on the firearm offence. Adopting the approach set out in Avis  1 Cr App R (S) 420, the following points were clear: first, the firearm was genuine, it could be fired and MC had researched how this might be done; second, the firearm had been secreted in a loft to which MC had access as and when he wished; third, it was clear MC intended to make use of the firearm for criminal purposes; fourth, MC had an extremely poor criminal record. Thus, the starting point should have been not less than eight years. Taking into account the 12% discount on sentence to which MC was entitled – as opposed to the 28% he had been given by the judge in the Crown Court – the appropriate sentence was one of 7 years on the firearm count.
R v Lindsay  EWCA Crim 2171
The judgment, available here, was handed down by Treacy LJ on 26.09.18.
This was an appeal against a sentence imposed for an offence of neglecting a child on the basis that it was manifestly excessive and should have been suspended. The appeal was allowed. In this case, the appellant’s culpability was significantly less than that of her partner, who received the same sentence, and thus a reduction was appropriate to reflect that. Further, no consideration was given by the sentencing judge to the special position of the appellant’s young children in this case; this, coupled with the fact that she posed no risk to the public, justified the suspension of the sentence.
The appellant (‘JL’) pleaded guilty at the earliest opportunity to an offence of neglecting a child; she was sentenced to a term of sixteen months’ imprisonment. A co-accused (‘SR’), JL’s partner, also pleaded guilty and received the same sentence. The victim was the couple’s baby son. Both JL and SR had taken drugs and drunk alcohol on the night of the incident. It was JL’s understanding that the baby, under SR’s supervision, was going to stay with friends and she was present as an overnight bag was packed. That did not happen; SR instead took the baby with him into the bed which he shared with the appellant, despite there being evidence that both had been warned about the risks of taking a small baby to bed.
JL appealed against her sentence on two grounds: (1) a starting point of two years had been too high in the circumstances and did not properly reflect her culpability; and (2) any custodial sentence should have been suspended. As for (1), the Court agreed that there should have been some distinction between JL and SR. JL’s culpability was significantly lower: she had not been party to the decision to keep the baby at home overnight nor had she taken the child to bed. Furthermore, she appeared to have been unaware that the child was in bed with her. This justified the imposition, taking into account her previous good character and obvious remorse, of a sentence of twelve months’ imprisonment.
Regarding (2), the Court was of the view that the sentence should have been suspended. JL did not pose a risk or danger to the public and rehabilitation was a prospect. Of particular significance in this case was the position of JL’s other three children. With a view to R v Petherick  1 Cr App R (S) 116, the Court was satisfied that significant weight should be given to the position of JL’s children. The judge’s sentencing remarks did not reveal consideration of those issues. Thus, the Court decided the sentence should be suspended, with a Rehabilitation Activity Requirement attached to that order.
R v Larking  EWCA Crim 2165
The judgment, available here, was handed down by Davis LJ on 21.09.18.
This was an appeal against a twelve-year sentence imposed upon conviction for manslaughter. The appeal was allowed and a sentence of eight years’ substituted by the Court; by reference to Burridge  2 Cr App R (S) 27,  EWCA Crim 2847 and Attorney General’s Reference No 125 of 2010 (Draper)  2 Cr App R (S) 97, both cases in which the sentences were lower than that originally imposed in this case and the circumstances more serious, twelve years’ imprisonment was ‘significantly’ too long.
The appellant was convicted of manslaughter, for which he received a term of 12 years’ imprisonment. He was also convicted of another count of conspiracy to pervert the course of justice; a one-year concurrent sentence was imposed on that count. A co-accused (‘LO’) was convicted on the conspiracy count and was sentenced to a term of 18 months’ imprisonment. The appellant and LO were in a relationship in which LO had given birth to two children. There were doubts about the true paternity of the children, but nevertheless the appellant was described as behaving ‘nobly’ (see ) as the father of both. The older child stopped breathing in the morning of 16 September 2014 at just 11 weeks old. A post mortem revealed the cause of death had been an injury consistent with baby shaking or a sudden impact on a soft surface. The appellant’s account of events was that the child had collapsed and he had accidently banged the child’s head on the side of the cot after he slipped on a changing mat.
The appellant appealed against sentence on the basis that 12 years was manifestly excessive; the appeal was allowed and a sentence of 8 years’ imprisonment was substituted, with the concurrent sentence on the perversion count standing. The Court’s attention had been drawn to two authorities which suggested that the sentence in this case was manifestly excessive: Burridge  2 Cr App R (S) 27,  EWCA Crim 2847 and Attorney General’s Reference No 125 of 2010 (Draper)  2 Cr App R (S) 97. In the former, the Court had substituted a conviction for manslaughter for one of murder and imposed a sentence of 10 years’ imprisonment; the victim was an eight-week-old baby. In the latter, a four-month old baby was shaken to death. In that case, there had been both lies told to the authorities and a previous incident of violence against the child. Against the background of a plea of guilty at the first opportunity, the Court increased the sentence to one of five years. While the Court in this case appreciated that the judge had the benefit of presiding at the appellant’s trial, this was a case, as the judge had found, akin to those where the father had shaken the child out of exasperation, heedless that harm might be caused. Thus, the sentence did not reflect the culpability of the appellant and was ‘significantly’ too long (see ).
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