Neutral Citation Number: [2012] EWCA Crim 136
Case No: 2011/02427/A3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
HHJ HENSHELL
(T20107458)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/02/2012

Before:

LORD JUSTICE LAWS
MR JUSTICE OWEN 
and
MR JUSTICE HADDON-CAVE

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Between:

	REGINA	Respondent	
	v		
	NEIL BROOK	Appellant	
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Ms Maura McGowan QC for the Appellant
Andrew O’Byrne QC for the Respondent 

Hearing dates: 20 December 2011
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Judgment

Mr Justice Owen:
1.	In early February 2011 the appellant, Neil Brook, stood trial on a single count of murder, and on 4 February 2011 was convicted of manslaughter.  On 1 April 2011 he was sentenced to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 with a minimum term of six years less 248 days served on remand.
2.	On 14 December 2011 he renewed his application for leave to appeal against sentence following refusal by the single judge.  We granted leave but adjourned the hearing of the appeal to 21 December, and invited representation by the prosecution.  On 21 December we had the benefit of both skeleton arguments and oral submissions from Miss Maura McGowan QC for the appellant, and Andrew O’Byrne QC for the prosecution.
3.	The issue to which the appeal gives rise is the effect of a verdict of manslaughter by provocation on an assessment of dangerousness under the dangerous offender provisions contained in chapter 5 of the Criminal Justice Act 2003.  
4.	The Facts
The appellant, who at the date of the offence was 32 years of age, and the deceased, Joseph Witkowski who was aged 27, were friends, and both lived in flats within the same building, 77 Wilbraham Road, Walkden.  At about 4.40 a.m. on 24 July 2010 police were called to the address.  The appellant was found standing in his flat wearing heavily blood stained clothing.  The blood appeared to be dry.  The appellant had laid out a pile of clothing and his medication and told officers that he was “going away for a long time”.  The deceased was found lying in the bathroom.  The door to the bathroom had been smashed and been removed from its hinges.  There was blood on the walls, and in the sink and bath.  The deceased was taken to hospital where unsuccessful attempts were made to resuscitate him.
5.	The appellant said that his friendship with the deceased had broken down over a mistake in the spelling of the word “nutter” in a text message that he had sent to the deceased two days before the killing.  The deceased had apparently taken offence to being called a “mutter”, and had sent abusive replies.  At some time after midnight on 24 July, the deceased came to the appellant’s door, and shouted through the letter box.  That woke the appellant who went to the door and opened it.  The deceased, armed with a knife and imitation firearm “flew” at him.  The appellant tripped him, grabbed one of two knives that he had taped to the wall at some time prior to the arrival of the deceased, and stabbed the deceased once or twice.  The deceased was able to get away from him and retreated into the bathroom.  But the appellant pursued him, grabbing the second of the knives taped to the wall and penetrating the door of the bathroom with the knife a number of times.  He then kicked the door off its hinges, and subjected the deceased to a frenzied attack resulting in multiple injuries caused by forceful stabs to the body and repeated heavy kicks and stamps.  A stab wound to the central chest which penetrated the heart was the probable cause of death.  
6.	The jury acquitted the appellant of murder but guilty of manslaughter by reason of provocation.  In his sentencing observations the learned judge, who had presided over the trial, identified the evidence upon which the jury had arrived at its decision as to provocation in the following terms:
“The provocation that the jury found was based on the behaviour of Mr Witkowski over a period of time, which is not particularly easy to pin down.  It was based in part upon phone calls and text messages containing threats of one form or another, and included the mis-spelling of a particular word in a text message from you to him; namely the word mutter – MUTTER – in a text message sent on 23 July, two days before his death.
That caused Mr Witkowski, for reasons which are not particularly clear, great offence.  You and he had been friends prior to this, and that friendship had deteriorated following these threats.
… when Mr Witkowski had arrived at your house at the time of the killing, he was in possession of an imitation gun, and a knife, but he was attacked by you almost as soon as he entered the house; your house.  That was the evidence that was revealed in the Case.”
7.	The learned judge then addressed the relevance of the jury’s verdict to the issue of whether the appellant satisfied the dangerous offender provisions.
“The jury could not be sure that a reasonable man would not have behaved in the way that you did, faced with the same situation.  However that, in my judgment, does not preclude a finding by me that you do pose a significant risk to members of the public occasioned by the commission by you of further such offences.  In other words a finding that you are dangerous.”
8.	As a general proposition that is undoubtedly correct; and Miss McGowan did not seek to persuade us otherwise.  Section D of the SGC Guideline Manslaughter by Reason of Provocation provides that:
“D 4.1 Manslaughter is a “serious offence” for the purposes of the provisions in the Criminal Justice Act 2003 for dealing with dangerous offenders.  It is possible that a court will be required to use the sentences for public protection prescribed in the act when sentencing an offender convicted of the offence of manslaughter by reason of provocation.”
Furthermore part D of the guideline identifies the factors to be taken into consideration in sentencing for manslaughter by reason of provocation, which includes:
“1. Sentences for public protection must be considered in all cases of manslaughter.”
9.	But it is also to be noted that at part B 2.1 the guideline acknowledges that in approaching the sentencing exercise in the case of manslaughter by reason of provocation, the sentencing judge must be faithful to the jury’s verdict, and sets out the assumptions that have to be made if that is to be achieved namely:
“First, that the offender, at the time of the killing, lost self-control; mere loss of temper or jealous rage is not sufficient.
Second, that the offender was caused to lose self-control by things said or done, normally by the person killed.
Third, that the offender’s loss of control was reasonable in all the circumstances, even bearing in mind that people are expected to exercise reasonable control over their emotions and that, as society advances, it ought to call for a higher measure of self-control.”
It is to be observed that the proposition that society advances in such a manner as to call for a higher measure of self-control is questionable.  But the guidance otherwise reflects the well established principle that in passing sentence a judge must be loyal to the jury’s verdict.
10.	But Miss McGowan submits that there was no proper basis upon which the learned judge could have concluded that the criterion set out in section 225 (1)(b) was satisfied, namely that “… that there is a significant risk to members of the public of serious harm occasioned by the commission by (the appellant) of further specified offences”.  
She relies upon the fact that the appellant had no previous record of offences for violence and that accordingly the assessment of dangerousness was necessarily to be made on the facts of the index offence alone, and that loyalty to the jury’s verdict required the learned judge to approach the issue upon the basis that at the time of the killing the appellant had lost control, that his loss of self-control was caused by things said or done by the deceased and that his loss of control was reasonable in all the circumstances.
11.	The jury’s verdict is open in two interpretations, either that they were satisfied that the appellant had been provoked, or that the prosecution had failed to discharge the burden of disproving provocation.  But in either case loyalty to the verdict required the learned judge to make the assumptions set out at B 2.1 of the guideline.
12.	How then did the learned judge approach the issue?  In the course of mitigation he stated in terms that “in considering the question of dangerousness of course one has firstly to honour the jury’s verdict …” In passing sentence he described the attack on the deceased as ferocious and relentless.  He went on to set out his reasons for his conclusion that the appellant satisfied the dangerous offender provisions in the following terms:
“The facts of this case, viewed as a whole, including all the circumstances which we have heard in evidence, and including the verdict of the jury, are such that I am satisfied that you do present just such a risk to members of the public.  
The conclusion of the author of the ‘Pre-Sentence Report’ is based in part on the view of the author, that you did not consider the consequences of your behaviour, or alternative means to address the situation which had developed for some short time prior to the death.
That opinion, in my judgment, is part only of the fact of underlying any conclusion that I have reached.  The author of the ‘Pre-Sentence Report’ undoubtedly, as it says in the Report, exposed difficulty in understanding the nature of the provocation that went on in that house, and your reaction to it.  In any event, any decision on the question of dangerousness can only be for this Court in the final analysis to make; and I make that judgment on the basis of the circumstances of the offence, and all the evidence available to me.  
I am conscious of the fact that you have not committed offences of violence in the past, and I am also conscious of the remorse that you have expressed, and also the fact that you have now been successful in remaining drug free.
Nevertheless, I am satisfied that you do such a danger, as I have identified, to members of the public, of committing further offences, occasioning thereby serious harm.  That risk, is in my judgment, a significant risk, caused by you committing further specified offences.”
13.	It is therefore clear that the learned judge’s conclusion was based upon the evidence in the case, and secondly upon the conclusion at which the author of the pre-sentence report had arrived.  The appellant had not previously been convicted of any violent offence, and there was no further information that could be relied upon to support a finding of dangerousness.
14.	As to the facts of the case, whilst the learned judge cannot be faulted for describing the attack as ferocious and relentless, he was bound to make the assumption that the appellant’s loss of control was reasonable in all the circumstances.  It is difficult to see how such a loss of control could provide the basis for the conclusion that the appellant presents a significant risk to members of the public of serious harm occasioned by the commission of further offences specified in schedule 15 of the Act.
15.	As to the PSR, its author came firmly to the conclusion that the appellant was a dangerous offender within the meaning of the 2003 Act.  The essence of his report is to be found in its paragraph 4.3:
“4.3. In terms of whether Mr Brook is deemed Dangerous, I have considered the nature of the current offence.  His behaviour caused the death of his victim, therefore it is indisputable that serious harm has been caused.  Considering his wider risk of ‘serious harm’, I have many concerns regarding his case.  Given the fact that he failed to consider other means by which to address conflict in the days leading up to this assault, he had prepared knives at key positions of vulnerability and most significantly, once he had stabbed the victim, he pursued him, kicking and stabbing the door with immense force and determination to deliver the fatal stab in the bathroom.  The Medical report documents multiple injuries sustained by the victim.  All this evidence suggests a brutal attack that was disproportionate to the situation, especially the victim seeking protection in the bathroom.  Considering the immense of any possible further offences, this is more difficult to predict.  Mr Brook does not have a history of violence.  However understanding the current matters suggests that key risk factors include conflict with others and Mr Brook’s resorting to extreme measures to address that conflict.  This coupled with Mr Brook’s lack of insight into triggers to his violence suggests that any such offences could happen at any time.  Based on these factors, I assess that Mr Brook is in fact Dangerous as defined by the CJA 2003, Section 225 (amended 2008). ”
16.	His conclusion contains a further material paragraph:
“Mr Brook did not consider the consequences of his behaviour or alternative means by which he could have addressed the situation.  It is concerning that he will readily use weapons, which unfortunately has now resulted in a death.  Considering the fact that Mr Brook had already prepared two knives in accessible locations (bathroom and front door) suggests that he was prepared for conflict.  Given the nature of the exchange between both men in the days preceding the fatal incident would admittedly have led to a degree of anticipation on Mr Brook’s behalf.  His relative isolation and the uncertainty of the situation could have led to a heightened level of emotional arousal and anxiety.  When eventually confronted on that fateful morning, overwhelmed by the situation, he clearly pursued the course of action that led to a brutal and sustained attack on the victim.  He failed to consider other means by which he could have addressed the situation, for example, calling the police when confronted and not allowing the victim into his property.  Again, the element I find most disturbing in this case was Mr Brook’s endeavours to gain access to the bathroom to assault the victim again.”
17.	That analysis was based on the facts of the case as the author of the report understood them to be, and upon his interview with the appellant.  The analysis is compelling.  But in a number of critical respects it is wholly inconsistent with the jury’s verdict from which it must be assumed that the appellant’s loss of control was reasonable in all the circumstances, namely the failure to consider other means by which to address the conflict in the days leading up to the attack, secondly the conclusion that the attack was disproportionate to the situation, thirdly risk factors including conflict with others and the resort to extreme measures to address such conflict, including the use of weapons, and lastly the failure to consider the consequences of his behaviour.
18.	Thus to place reliance upon the conclusion at which Mr O’Kane had arrived inevitably had the effect of going behind the jury’s verdict.  
19.	We are therefore bound to conclude that there was no proper basis upon which the learned judge could conclude that the dangerous offender provisions were satisfied.  It follows that this appeal must be allowed.
20.	It is therefore necessary to consider the sentence that ought to have been imposed on the appellant.  The guideline identifies three sentencing ranges defined by the degree of provocation, low, substantial and high.  Within each range the recommended starting point is based on provocation taking place over a short period of time.  The court will then move from the starting point by considering the length of time over which the provocation has taken place and by reference to any aggravating and mitigating factors.
21.	As the learned judge observed in passing sentence, the provocation is not particularly easy to pin down.  It was based in part on phone calls and text messages containing threats in the days preceding the killing.  But it appears that the most significant element was the deceased’s arrival at the appellant’s flat in the early hours of the morning armed with an imitation gun and a knife.  In our judgment that amounted to a substantial degree of provocation occurring over a short period, which indicates a starting point of 8 years custody.  But the offence was severely aggravated by the frenzied nature of the attack, the post-mortem examination having revealed that the victim had 104 different marks of injury on his body, including many bruises and abrasions, and in addition to the fatal stab wound to the heart, three stab wounds to the thigh and many incised wounds to the hands consistent with the deceased’s attempts to defend himself.  There were also injuries consistent with kicks and punches to the face.
22.	Save for the remorse expressed by the appellant there are no mitigating features.  In our judgment the appropriate sentence was one of 12 years imprisonment.
23.	The sentence imposed upon the appellant will therefore be quashed, and we substitute for it a sentence of 12 years imprisonment.  The appellant will continue to be entitled to credit for the period served on remand.