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“Leniency” in Sentencing? Court of Appeal rejects AG reference attempting to increase a sentence it argues was unduly lenient

Attorney General’s Reference (Case No. 202002303/A1) (R v W) [2020] EWCA Crim 1727

In this case the Court of Appeal rejected the Solicitor General’s application that a sentence imposed under s91 Powers of the Criminal Courts (Sentencing) Act 2000 of 7 years and 6 months for manslaughter was unduly lenient. This decision provides useful guidance regarding the process of sentencing children for very serious offences.

Details 

This was an application by the Solicitor General (AG) to overturn the original sentencing decision in which W had been sentenced to 7 years and 6 months for the manslaughter of a young adult.  The offence was committed when W was aged 16.  W was 17 at the point of sentence. W had a psychological report and had been assisted by an intermediary throughout the trial on account of his limited verbal skills and other learning difficulties.  A 40% reduction was applied to the 12-and-a-half year sentence the trial judge found would have applied had W been an adult at the time of the offence.

The AG argued that the adult starting point should have been assessed as far higher – around 16 years – which would better reflect the numerous aggravating features of the offence. The AG further argued that the 40% reduction for age was excessive. The AG’s application was refused. The Court of Appeal found that the starting point adopted by the sentencing judge was in line with the Definitive Guidelines on Manslaughter.  The Justices also found the 40% reduction for age to be entirely appropriate and in line with the Sentencing Children and Young People Guideline and highlighted that to impose a reduction of no more than one third would have effectively treated W as though he had been 17 at the time of the offence when he was in fact a long way off that.

Though the trial judge found the offender’s actions were ‘as close to murder as any case of manslaughter can be’, it was the judicial function to give effect to the verdict of the jury, which was manslaughter. It was therefore the judge’s function to consider the sentence in accordance with the Manslaughter Guidelines, which is ‘precisely’ what he did, giving careful and thorough consideration to the competing aggravating and mitigating factors. Lord Justice Davis described the judge’s sentencing remarks as ‘a model of their kind, both as to structure and content’.

The Court of Appeal approved of the sentencing judge’s decision not to consider a previous offence as an aggravating factor.  The judge had concluded that this previous conviction was entirely different nature to the offence in question and that W’s comparative youth at the time of commission was notable. This judgement was deemed entirely appropriate by the Court of Appeal. The previous conviction related to an incident which had occurred at school 2 and a half years earlier when he was just 14.  Whilst the previous conviction was also an offence against the person (an ABH), there was no pre-emptive strike or attempt to argue self-defence as a proportionate response to a threat from another, which the sentencing Judge took to be the key features of the index offence.

It was further noted that impact on the victim’s family, whilst dreadful, was not a basis for interfering with the judge’s sentencing conclusion.

Commentary

The judgment provides some guidance on offence categorisation and the delicate line between manslaughter and murder offences.

The judgment also gives useful guidance as to the sorts of previous convictions which might be counted as aggravating factors during the sentencing exercise. It highlights the importance of considering maturity as well as offence description and category when assessing the relevance of an offender’s record.  It follows that the younger and less mature the Defendant was at the time of the commission of the previous conviction, the less weight the sentencing tribunal should attach to it. It further underscores the significance of age when assessing the reduction to be applied to the applicable adult sentence on account of youth; the discount to be applied to a 16-year-old will be substantially lower than that applied to a 17-year-old.  Furthermore, any departure from the ranges set out in the Sentencing Children and Young People Guideline on this issue must be well justified.