No. 2009/01507/A7
Neutral Citation Number: [2009] EWCA Crim 1588
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  8  July  2009

B e f o r e:

LORD  JUSTICE  STANLEY  BURNTON

MR  JUSTICE  PENRY-DAVEY
and
MR  JUSTICE  SIMON

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R E G I N A

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MARTIN  WORSMAN
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Mr S J Andrews appeared on behalf of the Appellant
Mr R Wright appeared on behalf of the Crown
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J U D G M E N T
Wednesday  8  July  2009

LORD JUSTICE STANLEY BURNTON:  I shall ask Mr Justice Simon to give the judgment of the court.

MR JUSTICE SIMON:
1.  On 9 February 2009, at Leeds Crown Court, the appellant (aged 38) pleaded guilty to manslaughter.  On 6 March 2009 he was sentenced to seven years' imprisonment, with a direction that 116 days spent on remand should count towards that sentence.  He appeals against the sentence with the leave of the single judge.

2.  The 33 year old victim (a man named Aaron Dyas) had been living at the appellant's home for a number of weeks before his death.  Also living there was the appellant's teenage son.  Dyas and the appellant were friends of long-standing.  In the past they had both been heavy drinkers and users of drugs, but by the time of his death Dyas had overcome his addiction to drugs, although the appellant continued to use heroin.

3.  The appellant's heavy drinking and use of drugs led to tension between the two men.  Dyas was concerned for the welfare of the appellant's son and had contacted social services on a number of occasions.

4.  In the late evening of 5 November 2008 Dyas, the appellant, his son and a man named Waugh were present in the living room.  During the course of the evening they had all consumed a considerable amount of alcohol.  The appellant had also taken methadone and opiates.  By midnight they were intoxicated.  Dyas was sitting on the settee and the appellant was sitting on the floor.  Waugh had fallen asleep in a chair.  There was a kitchen knife on a table in the room. 

5.  Waugh was awoken by a sudden noise.  He saw the appellant and Dyas standing very close to each other and heard the appellant say that he was sorry.  As Dyas turned round, Waugh saw that he was bleeding from a wound to his chest.  He assisted Dyas to the settee, while the appellant called an ambulance.  This was shortly after 12.20am.  The emergency call lasted 21 minutes.  Initially the appellant said that Dyas had fallen off the settee and landed on the knife.  He told the operator that Dyas was unconscious and breathing.  He and Waugh were advised to perform CPR on him, which they did.

6.  It turned out that Dyas and the appellant had argued about the appellant drinking and taking drugs in front of his son, and that, during the course of the argument, both men had jumped to their feet.  The appellant had taken hold of the knife and threatened Dyas with it.  They had come together and the appellant had recklessly stabbed Dyas in the chest.  The pathology report indicted that the force had been minimal.

7.  The emergency services arrived and Dyas was taken to hospital.  He was pronounced dead at 1.25am.  The cause of death was a wound from a knife which had entered via the left side of his chest and into the right ventricle of his heart.

8.  The appellant was arrested.  In interview, he said that he and Dyas had argued and that Dyas had threatened to strike him, so he had picked up the knife to prevent Dias from picking it up.  He said that Dyas had tripped and accidentally fallen on to the knife.  He accepted that his initial account to the emergency services was untrue, and he also accepted that he had told his son and Waugh to lie about what had happened.  

9.  The appellant pleaded guilty on the basis that he had grabbed a knife and pointed it at Dyas in order to frighten him away, but they were both drunk, they had come together and he had recklessly stabbed Dyas in the chest. 

10.  The appellant was aged 38 at the time of sentence.  He had convictions for a number of offences, including offences of dishonesty and minor drug offences.  Apart from a sentence of twelve months' imprisonment for burglary, the sentences have been largely community based.  He had no previous convictions for offences of violence.  

11.  A pre-sentence report described the appellant as saying he had been "very drunk" and that the crime would not have happened had he not been in drink.  The drinking was itself an attempt to overcome symptoms of withdrawal from drug dependence.  He expressed remorse for what had happened.

12.  The judge had a victim impact statement from the victim's mother in which she expressed her own loss and that of her family at the death of Aaron at a time when he had started to get his life back on track.

13.  In passing sentence the judge referred to the appellant's record and the credit that he would receive for his plea of guilty.  The judge also accepted that he was remorseful.  The judge noted that this was a huge tragedy for the victim and his mother.  The offence arose out of an argument between two men who had been drinking.  The appellant had picked up a sharp knife and stabbed Dyas with it with moderate force.  He had tried to cover it up afterwards by claiming that it was an accident and he had tried to get someone else to give a false account.  That was an unpleasant aspect of the offence which could not be ignored, but he had abandoned that pretence by his plea.  The judge observed that manslaughter cases were always difficult.  Picking up a sharp knife like this was fraught with inherent risk and if someone picked up such a knife, they could not be surprised if a serious injury were inflicted, as happened here.  It was a serious offence that had to result in a serious penalty.

14.  In the grounds of appeal, and today before us, Mr Andrews submits that a sentence of seven years was manifestly excessive in the light of the appellant's plea, the lack of premeditation, and the fact that there was a single blow.  He argued that the judge had placed too much weight on matters of aggravation, the encouragement of others to lie about what had occurred, and that he had failed to give proper weight to the mitigating factors: the appellant's attempt to save the victim's life and his expressions of regret.  Mr Andrews referred to R v Coleman (1992) 13 Cr App R(S) 508 and to R v Matthews [2003] 1 Cr App R(S) 26.  In Matthews the court reduced the sentence of five years, following a plea of guilty, to a term of three-and-a-half years.  That was a case where the appellant had stabbed and killed his brother in an argument over the deceased's drug problems.  The court held that the term of five years was within the range of proper sentencing, but reduced it to reflect the fact that it was not a deliberate argument with a knife and so as to reduce the anguish of the family.

15.  We should say at once that we agree with the judge that this type of manslaughter involves a difficult sentencing exercise.  That is a fact recognised in Coleman.  An assault has had a fatal consequence that was neither foreseen nor intended.  In such circumstances the court has to balance the matters of aggravation and mitigation in order to assess the criminality.

16.  The first and most significant matter of aggravation in this case is the use of a knife.  Knives are known to be dangerous.  The brandishing of a knife involves a significant measure of culpability.  On the other hand, this was a case in which the knife was to hand, rather than taken to a place where death was intended, and minimal force was used.

17.  In Attorney General's Reference No 143 of 2002 (R v Davenport) [2004] 1 Cr App R(S) 102, an assailant took a knife from his van, used it to stab an unknown pedestrian, and then drove away leaving the victim dead or mortally wounded.  This court held that the appropriate sentence was a term of eight years' imprisonment following conviction.

18.  In our view, the judge in the present case was also right to treat the appellant's attempt to persuade his son and Waugh to give misleading evidence as an aggravating factor.

19.  So far as mitigation is concerned, there is the lack of any premeditation in the use of the knife.  The incident had occurred during the falling out of good friends in circumstances where the knife was lying between them.  The appellant was immediately remorseful over what had happened and he immediately called the emergency services.  Finally, and most importantly, he pleaded guilty. 
20.  On the basis that he gave a large measure of credit for the plea, the judge took a starting point of about ten years on conviction.  In our view this starting point was too high, particularly bearing in mind the lack of the aggravating factors found in Davenport.  We also note that R v Carter [2003] 2 Cr App R(S) 525 indicates that in cases where an offender deliberately goes out carrying a knife and uses it to cause death with six stab wounds, sentences of ten to twelve years, following a contested trial, may be expected to be imposed.  Here there was no deliberate carrying of a knife, and there was a single wound.

21.  In the light of this analysis it is our view that the starting point was a term of seven to eight years, and that the appropriate sentence on a plea would have been a term of five years.  

22.  We therefore quash the sentence of seven years' imprisonment and substitute a sentence of five years' imprisonment.  The appellant is entitled to credit against that sentence of 116 days on remand.  To that extent the appeal is allowed.