England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE ATTORNEY GENERAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 December 2002

Lord Justice Mantell:

1. This is a judgment of the Court to which all members have contributed.
2. On 28^th May 2002 at Manchester Crown Court Darren Anthony Suratan was convicted of manslaughter. He had earlier been acquitted of murder by direction for lack of evidence of the necessary intent. He was sentenced to 3½ years imprisonment.
3. On 24^th July 2002 at Sheffield Crown Court Leslie Humes pleaded not guilty to murder but guilty to manslaughter by reason of provocation. The plea was accepted. Humes was sentenced to 7 years imprisonment.
4. On 26^th September 2002 at Liverpool Crown Court, following a trial, Mark Paul Wilkinson was found not guilty of murder but guilty of manslaughter by reason of provocation. He had previously tendered a plea to manslaughter on that basis. He was sentenced to 4 years imprisonment.
5. The Attorney General considers all three sentences to be unduly lenient and seeks leave to refer them as such pursuant to section 36 of the Criminal Justice Act 1988.
6. The applications were listed for hearing at the same time because they all relate to unlawful killings in a matrimonial or domestic setting. Quite apart from his submission that each sentence was unduly lenient in comparison with sentences imposed in other similar cases, the Attorney General wishes to contend that the seriousness of such offences is not adequately reflected in the range of sentences which, generally speaking, the courts have thought fit to impose.
7. Most emphatically the Attorney General does not invite the court to lay down guidelines, but, as we understand his stance, would wish the court to say something to encourage judges to impose stiffer terms of imprisonment than has hitherto been the case. Even if it would ever be sensible to attempt to lay down guidelines in this notoriously difficult area, we quite agree that it would be inappropriate for the Court as presently constituted to do so or for any Court to do so without the Sentencing Advisory Panel having first been involved.
8. It may be convenient to consider the overall submission of Mr Perry, who appeared for the Attorney General, before turning to the particular cases. In doing so we note that in the main it is addressed to the sentencing range in cases of manslaughter by reason of provocation of which Humes and Wilkinson are examples. Suratan, of course, was acquitted of murder by reason of lack of intent. We also note that, although the cases before the court are of men killing women, it is not submitted that there should be any difference in approach were it to be the other way about.
9. Mr Perry's starting point is his submission that the normal range of sentences in cases of manslaughter by one party to a relationship who has a defence of provocation arising from the faithless conduct or disenchantment of the other has come to be between 5 and 7 years imprisonment. In support he cites R v. Taylor (1987) 9 CAR (S) 175, R v. Gilbey (1990) 12 CAR (S) 49 and R v. Light (1995) 16 CAR (S) 824. He suggests that the level of sentencing ought to be raised for three reasons. They are:

(1) that as society advances, possessiveness and jealousy are no longer acceptable reasons for loss of self control leading to homicide,

(2) that the manner in which juries are to be directed following the decision of the House of Lords in R v. Smith (Morgan) [2001] 1 AC 146 has increased the availability of the defence

and,

(3) that the present level of sentencing does not stand comparison with levels adopted for certain other serious offences

10. In support of his first reason, Mr Perry refers to the speech of Viscount Simon L.C. in Holmes v. Director of Public Prosecutions, [1946] AC 588, 601 and some remarks of Lord Hoffmann in Smith at p.169. Holmes was decided at a time before the coming into force of the Homicide Act 1957, when the trial judge could withdraw a defence of provocation on the basis that the evidence was not such as in law could justify a verdict of manslaughter instead of murder. In that case a husband had killed his wife following her confession of adultery. The trial judge had directed the jury that it was not open to them to return a verdict of manslaughter. The House of Lords held that he was correct to do so. Having referred to the possibility that "words of a vile character … might be calculated to deprive a reasonable man of his customary self-control even more than an act of physical violence", Viscount Simon continued, "But, on the other hand, as society advances, it ought to call for a higher measure of self-control in all cases."
11. In Smith the House of Lords had to consider what the appropriate direction should be to a jury where in accordance with section 3 of the Homicide Act 1957 there is evidence on which the jury could find that the person charged had been provoked. Lord Hoffmann, as a member of the majority, suggested that it was desirable that a jury should be directed to ignore characteristics such as jealousy and obsession and also expressed the view (at p.169F/G) that "male possessiveness and jealousy should not today be an acceptable reason for loss of control leading to homicide". But those expressions of opinion, sensible though most people will think them to be, go to the availability of the defence rather than the consequences of a verdict arrived at by a jury which does not share Lord Hoffmann's point of view. For our part, we cannot see how this provides an argument that there should be heavier sentences once a verdict of manslaughter by reason of provocation has been entered.
12. The second reason advanced by Mr Perry is that the decision in Smith will result in more defendants being able to rely successfully on a defence of provocation. That is because it is now confirmed that the personal characteristics of a defendant are to be taken into account in deciding both whether he was in fact provoked and whether the objective element of provocation has been satisfied. We are far from convinced that the clarification of the law to be found in Smith will lead to any increase in the number of verdicts of not guilty of murder but guilty of manslaughter by reason of provocation, either in the domestic type of case with which we are concerned or more generally. The proposition is unsupported by any statistical or even anecdotal evidence. The submission perhaps fails to give due weight to the point emphasised in Smith (at p.169C) that, "For the protection of the public, the law should continue to insist that people must exercise self-control". But even if it were to be the case that the balance has shifted in favour of defendants, we reject any suggestion that it means that a defendant will be able to persuade a properly directed jury that he has a defence of provocation simply because he has learned that his partner has been unfaithful or wants to end the relationship. More importantly, we entirely fail to see any connection between that circumstance and what ought to be deemed a proper level of sentencing in cases of this kind.
13. Mr Perry's third reason is based upon disparity between sentences for manslaughter in cases such as these and sentences for other offences of homicide or serious violence.
14. In Taylor's case the appellant had been convicted of manslaughter on an indictment for murder. It is unclear from the report whether or not the appellant had offered to plead guilty to the lesser offence. The facts were that the appellant and his common law wife had been drinking heavily and following a minor disagreement over a door being left open the wife had taunted the appellant about her relationship with another man. The appellant responded by taking a knife from the kitchen drawer and killing her by stabbing her once in the stomach with great force. The Court of Appeal presided over by Lord Lane, Lord Chief Justice, substituted a sentence of 5 years for that of 7 imposed by the trial judge.
15. In Gilbey, another decision of this court when presided over by Lord Lane, the appellant had offered a plea of guilty to manslaughter on grounds of provocation which had not been accepted by the Crown. Following a four-day trial he had been acquitted of murder and convicted of manslaughter. The trial judge imposed a sentence of 7 years imprisonment. The sentence was upheld by the Court of Appeal Criminal Division. In giving the judgment of the court Lord Lane said (at p.51):

"But if one turns to other cases, again similar though obviously not the same type of facts, one finds that the sentences vary between 8 to 7 down to 5 years for this sort of offence. As was said by this Court in Taylor, and we make no apology for saying it again despite its truism, this sort of case is particularly difficult when it comes to questions of sentencing. The facts vary so enormously from case to case that it is really impossible to set down any guidelines to assist judges.

One is driven to the fact in the end that a human life has been deliberately taken. All the facts have to be taken into consideration: not only those on the credit side from the appellant's point of view, but also those on the debit side. Having done that one must ask oneself whether the trial judge has strayed so far from the norm that it is impossible to say that the sentence was a just one.

We have considered with some anxiety and with some care the sentence in this case against the facts which I have endeavoured to outline. We find it impossible to say that this sentence was wrong either in principle or in extent. For those reasons this appeal must be dismissed."

It is, we think, implicit from that passage in the judgment in Gilbey that the court did not consider the sentence to be a lenient one.

16. Similarly in Light this Court upheld a sentence of 7 years imprisonment imposed in the case of a husband who had been convicted of manslaughter of his wife by reason of provocation. Once again it is not entirely clear from the report whether or not the appellant had been willing to plead guilty to manslaughter but, if so, it rather seems that it would have been because he lacked the necessary intent for murder. In the course of giving the judgment of the court Lord Taylor, Lord Chief Justice, remarked that the Encyclopaedia of Sentencing showed that in most cases 7 to 8 years imprisonment had been considered appropriate for the manslaughter of a spouse when provoked. He referred to the case of Mellentin (1985) 7 CAR (S) 9 in which a sentence of 5 years imprisonment had been reduced on appeal to 4 and also to the case of Taylor where, as we have noted, the Court substituted a sentence of 5 years for 7 years imposed at first instance. At p.827 Lord Taylor said this:

"In both of those cases the circumstances were different and the attack was less persistent. What was emphasised by the judge in the present case was the sustained attack which the appellant conducted. Moreover, we have to consider the degree of provocation which was offered. The appellant was informed by his wife that she wished to bring an end to the marriage, that there was another man with whom she was having an affair. She did not seek to boast about it. She did not seek to disparage the appellant. He did not find them in flagrante delicto. We do not consider this was the sort of case in which a reduced sentence from the general level of 7 to 8 years imprisonment would have been justified. We do not consider that the sentence of 7 years imprisonment imposed by the trial judge could be described as being either wrong in principle or manifestly excessive."

17. One can, of course, find in the books examples of cases in which sentences of much less than 5 years have been deemed appropriate and, exceptionally, when a non-custodial disposal has been considered sufficient. But in the main those are cases where the killing has been in response to violent conduct on the part of the deceased sometimes persisted in over many years. At the other end of the scale it is possible to find examples of much higher sentences being approved. We refer to Attorney General's Reference (33/1996) [1997] 2 CAR (S) 10 which is mentioned in the written submission. In that case the killing was not in a domestic context and the offender had sought out his victim against whom he bore a grievance having previously armed himself with a knife. The court held that where an offender deliberately goes out with a knife to use as a weapon and uses it to cause death, even if there is provocation, he should expect a sentence in a contested case in the region of 10 to 12 years. In that case the offender had pleaded guilty to manslaughter by reason of provocation and the court suggested that a proper sentence would not have been in excess of 8 years.
18. So from a review of the authorities and limiting our observations to cases of manslaughter committed after provocation arising out of possessiveness, jealousy or unfaithfulness, we would not seriously disagree with Mr Perry's proposition that the ordinary sentencing range lies between 5 and 7 years imprisonment, though that is not to overlook what was said in Light about most cases resulting in sentences "of the order of 7 to 8 years".
19. Mr Perry goes on to contrast the range of sentences in provocation cases with the minimum recommended term in cases of murder, with sentences now considered appropriate in cases of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs, and with other cases of serious violence of which attempted murder and causing grievous bodily harm with intent are the most obvious examples. He submits there is an unjustifiable disparity between sentences imposed in these cases and cases of provocation.
20. In particular, Mr Perry points out that the minimum term to be served suggested as appropriate following automatic life sentences for murder where the offender had been provoked in a non-technical sense, such as by prolonged and eventually unsupportable stress is 8 to 9 years (see Practice Statement (Crime: Life Sentences) [2002] 1WLR 1789). As Mr Perry correctly points out, 8 to 9 years to be served can be seen as equivalent to a sentence of 16 to 18 years imprisonment.
21. So far as the driving cases are concerned Mr Perry has invited our attention to R v James (2001) 2 CAR (S) 153 and R v Gilmartin (2001) 2 CAR (S) 212. In the first, this court upheld a sentence of 8 years imprisonment after a trial where the offender had consumed one and a half times the maximum permitted amount of alcohol. In the second, this court reduced a sentence of 7 years imprisonment to one of 6 following a plea of guilty to causing death by dangerous driving. In that case the appellant had taken drugs and consumed alcohol although his blood alcohol level was only marginally above that permitted by law. It is Mr Perry's submission, we believe, that the level of sentencing in provocation cases should be raised above those customarily imposed in the causing death by driving cases to reflect the fact that in the first class of case there will have been at least an intent to cause really serious harm whereas the same is not necessarily so in the second.
22. Then Mr Perry brings our attention to the levels of sentencing approved by this court in cases of attempted murder and causing grievous bodily harm with intent. Of course, in attempted murder there has to be an intention to kill and in such cases there is rarely a plea of guilty. Even so Mr Perry refers to the cases of R v Gibson (1997) 2 CAR (S) 292, R v Rahman (1998) 1 CAR (S) 391 and R v Bedford (1993) 14 CAR (S) 336, all of which are cases of husbands attempting to murder wives and in which sentences either upheld or substituted were in the region of 10 years imprisonment. Mr Perry submits that it is odd that longer sentences should be imposed in cases where no death results than in cases of manslaughter by reason of provocation where it does. Mr Perry has a similar argument in relation to sentences for wounding or causing grievous bodily harm with intent. We readily accept that in the worst of such cases sentences approaching double figures will be upheld even following a guilty plea. (See R v. Pollin (1997) 2 CAR (S) 356).
23. In our view it is important to remember that the provisions of section 3 of the Homicide Act 1957, as interpreted by authority including the House of Lords in R v. Smith, mean that when sentencing an offender who is not guilty of murder but guilty of manslaughter by reason of provocation, the judge must make certain assumptions in the offender's favour.
24. First, he must assume that the offender had, at the time of the killing, lost his self-control. Mere loss of temper or jealous rage is not sufficient.
25. Second, he must assume that the offender was caused to lose his self-control by things said or done, normally and as in the cases with which we are concerned, by the person whom he has killed.
26. Third, he must assume that the defendant'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.
27. Fourth, he must assume that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the defendant's offence from murder to manslaughter.
28. Moreover, the sentencing judge must make these assumptions whether the offender has been found not guilty of murder but guilty of manslaughter by reason of provocation by a jury after a contested trial, or the Crown has accepted a plea of not guilty of murder but guilty of manslaughter by reason of provocation.
29. It is not legitimate to criticise as lenient, let alone unduly lenient, a sentence which has been imposed for manslaughter by reason of provocation, by mounting arguments or pointing to circumstances which ignore or underplay the fact that the offender had lost his self-control at the time of the killing, and suggesting that he was, for instance, merely in a jealous rage with his victim, or that his loss of self-control was unreasonable, or that there was not a real degree of legitimate excuse for what he did. To do so is to suggest that the offender was guilty of murder rather than guilty of manslaughter by reason of provocation, and the judge cannot properly sentence the offender on such a basis.
30. Those conducting a prosecution for alleged murder, including the Attorney- General, if he was consulted, may properly take account of particular factors outside the offender's own conduct in deciding to accept a plea of not guilty of murder but guilty of manslaughter by reason of provocation. For instance, it may be important to avoid calling children of the offender and his victim as necessary witnesses in a contested trial. But such reasons for accepting a plea, even if known to the judge, should not weigh with the judge when deciding the proper sentence. The offender is still not guilty of murder but guilty of manslaughter by reason of provocation, and the judge must still make the assumptions in the offender's favour, to which we have referred. He cannot, for any reason, water them down to justify a greater sentence.
31. Those considerations may seem to lead to the conclusion that the present level of sentencing is, if anything, higher than it ought to be. After all, the offender must be treated as if he had a reasonable excuse for what he did. The problem was exposed and answered by Lord Justice Shaw in R v. Bancroft (1981) 3 CAR (S) 119, 120:

"Theoretically and logically, though in a sense remote from human affairs, if there is a successful defence of provocation, and it is recognised by the jury that the accused whom they are trying was not in possession of his self-control because of conduct of his victim, one could argue that the sentence should be virtually a nominal one. However, it has to be recognised in human affairs, notwithstanding that a man's reason might be unseated on the basis that the reasonable man would have found himself out of control, that there is still in every human being a residual capacity for self-control, which the exigencies of a given situation may call for. That must be the justification for passing a sentence of imprisonment, to recognise that there is still left some degree of culpability, notwithstanding that the jury have found provocation."

32. So it is a case of striking a balance between a finding or acceptance that the offender acted under provocation and the residual degree of culpability. Parliament has decided that the sentence for murder is fixed and automatic, but that the sentence for manslaughter is not; and Parliament has decided that a defence of provocation should be available to distinguish the two offences of homicide. As Viscount Simon said in Holmes (at p. 601), "In the case of lesser crimes, provocation does not alter the nature of the offence at all: but it is allowed for in the sentence. In the case of felonious homicide, the law has to reconcile respect for the sanctity of human life with recognition of the effect of provocation on human frailty". So too in particular cases of, for example, attempted murder or wounding with intent in which unusual circumstances justify a lenient or merciful sentence. However, as has been said many times, the balancing exercise in manslaughter cases which involves weighing the act of homicide against the recognition of the implications of the accepted defence of provocation presents extraordinary difficulties for sentencing judges; difficulties which do not typically arise in sentencing for offences with which we are invited to make comparisons.
33. In our view the existing authorities provide sufficient guidance in this area and we do not propose to complicate matters by adding to their volume.
34. We do, however, make two observations. First, the courts dealing with some of the offences to which Mr Perry has referred have imposed sentences which are intended to have a deterrent effect on others: death by dangerous driving and assaults by persons carrying knives are examples. We do not suggest, of course that in cases of manslaughter by reason of provocation deterrence will never play a part: perhaps Attorney General's Reference (33/1996) is an example. We do not doubt that there will also be cases of domestic violence in which there ought to be a sentence directed to warning others of the consequences of such behaviour, particularly cases where offences are pre-meditated or where there has been a history of bullying or violence. But we are dealing with cases of uncharacteristic and unpremeditated violence, and in the provocation cases where there has been loss of control which has reduced the offence to manslaughter. We do not accept that in all such cases a deterrent sentence is necessary, or that the sentencing judge is to be regarded as unduly lenient if he concludes that the circumstances of the case do not require it.
35. Secondly, it is submitted that it is an aggravating feature of these cases that the offender killed his spouse or partner. We find it difficult to regard this as a distinct aggravating feature in such provocation cases. It is typical of these cases that the matters that go partially to excuse the homicide are so inextricably entangled in the domestic situation that it is unhelpful and artificial to isolate this as an aggravating feature of the offence.
36. We turn to the facts of the individual cases.

Darren Anthony Suratan

37. The offender was born on 20 July 1967, so he was thirty-three when on 20 May 2001, he killed his partner, Sarah Lee, also thirty-three, with whom he had lived for three years.
38. The offender was originally accused of murder but he was found not guilty on the direction of the judge at trial, on the ground that there was insufficient evidence of an intent to kill or to cause really serious injury.
39. The offender was retried for manslaughter, to which he pleaded not guilty. He was convicted, as mentioned and sentenced to three-and-a-half years imprisonment.
40. The offender telephoned his Doctor's Co-operative to report that Ms Lee had fallen and was unconscious. She died the next day in hospital. There was no doubt that she died of a head injury leading to a subdural haemorrhage.
41. The offender denied that he had attacked her. His case was that she had been drunk and had fallen against a hard object or objects. The jury clearly rejected his account but there remains an issue as to the number of blows inflicted by the offender. Post mortem examination revealed four areas of recent bruising to the left cheek, behind the left ear, and to the upper left eyelid. But it was accepted at trial by the prosecution's medical expert that one of the areas of injury might have resulted from a fall and it could not be safely concluded that the offender had struck more than two blows. However, one blow struck by the offender to the victim's chin or jaw caused damage to five teeth, which were fractured or partly missing. Significant force was required to cause this. The fatal haemorrhage may have been caused by Ms Lee's fall. Her fall was, of course caused by the offender's blows.
42. Ms Lee was a heavy drinker. Analysis at hospital after her collapse disclosed 361mg of alcohol per 100ml of blood, some four and a half times the legal limit for driving. Although the reason for the offender's attack on Ms Lee is unknown, there was no evidence that the attack was premeditated, and the sentencing judge was prepared to accept that the offender was stressed as the result of Ms Lee's problems.
43. The offender had previous convictions for dishonesty and criminal damage, and had served short prison sentences for drink driving offences, but he had no previous convictions for violence, and there was no evidence of previous violent conduct towards Ms Lee.
44. The offender has made excellent progress in prison. He may be allowed to attend a college course outside prison.
45. In making his submissions that the sentence of 3½ years was unduly lenient Mr Perry draws attention to what he submits are two aggravating features, namely that "multiple blows" were delivered to the victim and that the victim was the offender's partner. It is also said that the sentence failed fully to mark the loss of a human life, the need to deter others and public concern over offences of domestic violence.
46. On behalf of the offender it is not accepted that more than two blows were struck or, at least, that the judge could properly proceed to sentence on any other basis, though it has to be acknowledged that the offender in denying wrongdoing of any kind lost such credit as might have been available for contrition and remorse.
47. This offender, as remarked already, falls into a different category from the other two and is not affected by Mr Perry's first and second submissions.
48. Again, most helpfully, we have been referred to a number of authorities. As with the provocation cases, the range of sentences in such cases as this is considerable. At one end of the spectrum are cases like R v. Phillips (1985) 7 CAR (S) 235. In that case death was not the direct result of the assault. The victim was felled by a number of blows to the face, and in falling sustained the fatal injury when his head came into contact with the pavement. The court quashed a sentence of 7 years imprisonment and substituted one of 2 years. When the violence consists of a single punch or a push the courts have considered even shorter sentences to be appropriate. At the other extreme, sentences of 7 years have been upheld when death has resulted from the victim being kicked as he lay helpless on the ground. (See R v. Silver & Gosling (1982) 4 CAR (S) 48).
49. All in all we are inclined to accept what was said by Beldam LJ in R v. Moreby (1994) 15 CAR (S) 53 to the effect that 5 years imprisonment is the sort of sentence which is appropriate in cases of manslaughter by punching or kicking in the absence of exceptional circumstances.
50. In the instant case we are somewhat handicapped by the absence of a transcript of the summing up and the fact that this most experienced judge in his sentencing remarks does not reveal his view of the extent of the violence used. It must be assumed, however, that he sentenced on a view of the facts least unfavourable to the offender, which would involve death resulting from two blows with a fist. He would no doubt have had regard also to the lack of premeditation, as he expressly did to the strain of putting up with the victim's excessive drinking. Most importantly he was bound to and no doubt did sentence on the basis that the offender did not intend to cause Ms. Lee any severe injury, let alone kill her.
51. We have to accept that on the basis of the authorities to which we have been referred 3½ years seems a lenient sentence after a trial. At the same time we are at pains to point out that the judge having conducted the trial was in a far better position to assess culpability than are we. In the result we find ourselves unable to say that this was an unduly lenient sentence and although we grant leave we are not prepared to interfere.

Leslie Humes

52. The offender was born on 29 November 1962, so he was thirty-nine when he killed his wife, Madelaine Humes, by stabbing, on 30 December 2001. She was thirty-six. They first met at University. They married in 1986. They had four children, aged fourteen, twelve, seven and two-and-a-half, at the time of her death. They had a comfortable home in Rotherham. The offender had a successful but overworked career as a solicitor. He was a man of good character, with no history of aggression or violence, in or outside marriage, before he attacked and killed his wife.
53. The marriage ran into difficulties in 2001. Among other matters, from Mrs Humes' point of view, the offender was spending too much time at work. From his point of view, she was spending too much time at her karate classes where the instructor was Michael Smith. Mrs Humes and Mr Smith became close. Sometime after October 2001 their relationship became intimate. This was unknown to the offender and the rest of Mrs Humes' family.
54. The sequence of events, which led to the fatal stabbing, began on 20 December 2001 when the offender confronted his wife and asked if she was having an affair with Michael Smith. She denied it. The next day she met Michael Smith and told him that she was going to leave the offender. She told the offender that their marriage was not working, but denied that there was anyone else. On 23 December 2001 the offender took the children to visit his parents in Carlisle. Mrs Humes said she wanted to stay at home to think things over. She spent the day with Michael Smith. On 24 December, the offender and his wife went shopping together but the atmosphere was not good. They talked into the early hours of Christmas Day. He became upset and cried. That night when they went to bed, he again began to cry. She called him pathetic and told him not to keep her awake. On Boxing Day, she asked him to leave. Eventually, with reluctance, he left for a hotel. On 27 December, he visited the home to talk to his wife for several hours, before returning to the hotel for the night. On 28 December, the offender talked to one of his law partners and to his doctor about his matrimonial problems. He talked to his wife until 4a.m. before returning to the hotel. On 29 December, he visited his parents in law. He spoke to his wife again. He returned to the hotel.
55. On 30 December 2001, the offender had intended to visit his wife's twin sister and her husband in Scotland, but he went home first to collect clothing and to say goodbye to the children. He arrived at about 9.30am. He spoke to his wife in the kitchen. She said, "I've got something to say to you". He said that he was not strong enough to hear it and that he wanted some time on his own so that he could think about things, but she insisted. She appeared to him to be angry, and said, "I don't love you, we're finished". She went on to say that she had feelings for Michael Smith, 'big style' and that he had feelings for her. She also said "By the time you get back, in a week, I'll have slept with him". (Later the offender also asserted that his wife told him that she had slept with Michael Smith).
56. It was at this point that he attacked his wife using a knife, probably a bread knife. His attack with the knife continued as she tried to escape into the dining room. Part of the attack was witnessed by the eldest child, Laura, who became covered in blood attempting to revive her mother. At some stage the offender turned the knife on himself and the second child, Michael, removed the knife from a wound in his abdomen or chest. The third child, Lizzie, saw some of what happened and recalled her father saying to her mother: "Please don't die on me. I love you so much". When the ambulance arrived, called by Laura, the youngest child Caitlin was next to her mother crying. The offender was heard to say: "She was going to leave me. I want to die".
57. Mrs Humes was pronounced dead at hospital. She had eleven knife wounds, including stab wounds to her chest. One of them completely penetrated her body. It was caused by two thrusts, one penetrating her heart and the other her left lung. A stab wound to her abdomen also penetrated the whole of her body.
58. The offender was operated on, and survived. He had stab wounds to his left breast and abdominal cavity, and superficial cuts to his wrists. During police interviews he said that over the days before the attack he had built himself up to believe that his marriage had failed because he had been a bad father and husband, to discover on the morning of 30 December that his wife had someone else. He could not explain exactly how he felt but he had "lost it totally". Also: "It's like they say you can see a red mist. I was bellowing like a bull".
59. It appeared that the offender had not eaten or slept for several days before the killing. There was medical evidence of a particularly severe "acute stress reaction" in addition to physical and psychological exhaustion, making him unusually susceptible to what his wife said to him. His formal defence statement accepted responsibility for the unlawful killing of his wife but claimed the partial defences of "provocation" and "diminished responsibility" so far as the charge of murder was concerned.
60. In due course the offender offered a plea of guilty to manslaughter (but not guilty of murder). The written basis of the plea was:

"1. Mr Humes will plead guilty to manslaughter on the basis of provocation and on condition that this plea is acceptable to the prosecution.

2. In consequence he will not pursue his defence of diminished responsibility…."

After careful consideration, the prosecution accepted the offender's plea.

61. Among his observations, when sentencing the offender, the judge noted that whether or not the offender was suffering from an identifiable mental illness, there was no doubt that the stresses of the previous days played a considerable part in what happened; the offence was very serious, taking the life of a young woman who was the mother of four young children, and a devoted daughter and sister; the offence was made more serious in that the attack took place and was sustained in the presence of the children.
62. The Attorney General submits that there are four aggravating features in this case. First, that the degree of provocation was "slight". In accepting the offender's plea, the prosecutor did not dispute that the offender's loss of control was reasonable in all the circumstances and was sufficiently excusable to reduce the gravity of the offence. We find it difficult to understand how consistently with that the degree of provocation can be said to be slight. Secondly he refers to the fact that the victim was the mother, and responsible for the care, of four children. Again, this submission must not be allowed to detract from the implications of the prosecution accepting the plea: the facts that give rise to the defence of provocation are inextricable from the family situation. Thirdly, it is properly emphasised that the offence was aggravated by the fact that the attack took place in the presence of the children who witnessed a scene of great violence and the death of their mother. Fourthly, the Court should recognise the effect of the killing on the victim's family, including the severe effect on her twin sister.
63. The Attorney-General accepts that there are mitigating features: that the offence was committed when he was suffering from stress and exhaustion; and that the offender pleaded guilty; and that the offender was of good character – normally he was neither aggressive nor violent.
64. In weighing these considerations, we see no reason to believe that the sentence in this case lay outside the bracket indicated by such cases as Taylor, Gilbey and Light. We can well understand why the sentencing Judge regarded the two aggravating features that we have recognised as taking the sentence to the upper end of the range, but do not think that they take the appropriate sentence beyond it. We do not consider that this was a lenient sentence, still less an unduly lenient one. Leave is refused.

Mark Paul Wilkinson

65. The offender was born on 24 September 1975, so he was twenty-six when he killed his partner, Nicole Lewis, by smothering her, on 5 March 2002. She was twenty-four when she died. The offender was accused of, and tried for, murder. He accepted that he unlawfully killed Ms Lewis, but contended that he should be found guilty of manslaughter, rather than murder, by reason of provocation or on the grounds of diminished responsibility for what he did. The jury found him not guilty of murder, but guilty of manslaughter. They were not asked the basis of their verdict, but the Attorney General and those who represent the offender agree that it must have been manslaughter by reason of provocation, and the judge sentenced the offender accordingly.
66. The offender met Ms Lewis in 1994 when they were teenagers. They had two young children, Mathew and Paige. In December 2001 they bought a new home at 35 Victoria Road, Liverpool, but there had been difficulties between them for some time and on 7 February 2002 Ms Lewis left the family home, taking the children with her.
67. The offender found it difficult to accept that the relationship was at an end. When he found that Ms Lewis was seeing another man he made a threatening telephone call to the new boyfriend but later rang back and had a normal conversation.
68. On the afternoon of 5 March 2000, Ms Lewis agreed to go to 35 Victoria Road to meet the offender. They went upstairs to their bedroom to talk in private. A little later he told his parents and his brother that he had killed Ms Lewis. He called the police. Ms Lewis was found with a plastic bag in her mouth. She had died of asphyxiation. Bruising to her jaw line was consistent with the offender having covered her mouth and nose with his hands.
69. In his evidence to the jury, the offender said that he felt heart-broken at losing Ms Lewis. He did not react easily to her taking the children. He kept looking at photographs of the children. He was not sleeping. After Ms Lewis arrived at the house on 5 March 2000 and they went upstairs, he said: "I've got some photographs of Mathew and Paige today". She picked them up and looked at the first few, but said, "I've got the kids. You have only got photographs of them". He was upset. After a little more conversation she said, "I'm thinking of setting up with this guy to see if he wants to bring them up with me, be a surrogate father … moving to Manchester … I don't care if I've hurt you. I don't care if I've hurt Mathew". He told the jury that he "just boiled over, red haze, gripped hold of her, adrenaline really going, heart pounding". He put his hand near her mouth. He put his right hand to her jaw. His other hand was near her mouth. Her arms came up and went down. He let go. He picked up a bag, which was on the floor and rolled it in a ball. He put the bag in her mouth and said, "Shut up". He agreed that he said, "Do me a favour and die".
70. The forensic psychiatrists who gave evidence held differing views. One thought that the offender had been suffering from an adjustment disorder and could have been clinically depressed. The other disagreed. The offender was in a depressed and unhappy mood. He had found it very difficult to cope with Ms Lewis going, and was angry and upset.
71. The Attorney General in his representations states that "views as to the nature of the relationship between the offender and the victim, and the reasons for it coming to an end, inevitably differ as between various witnesses". Mr Downey, who appears for the offender, objects that this fails to recognise that "witnesses generally spoke well of the defendant and all, to some greater or lesser extent, were critical of the victim"; and supports this submission with a detailed examination of the evidence. On any view some witnesses spoke of the offender, a man of previous good character, putting everything into the relationship and working long and anti-social hours so that Ms Lewis could have all she wanted; that Ms Lewis took more than she gave, going out frequently, spending more than they could afford and consequently causing financial problems. Ms Lewis's sister, who was involved with the offender's brother, held the view that Ms Lewis was using the offender. The trial Judge in his sentencing remarks described the offender as "a hardworking and decent young man", and said that he had been "very struck by the amount of support that you have still had from both sides of the family". It is not suggested that he did not have a proper evidential basis to form this view, and we must give it proper weight.
72. There was also an issue as to whether the offender had ever been violent towards Ms Lewis. It seems to us to be unlikely that the jury was convinced of any previous violence if it was to find him guilty of manslaughter, by reason of provocation rather than murder, and the trial judge clearly sentenced him on the basis that he had not previously been violent. Again, it would be wrong to approach the case on any other basis.
73. The judge believed that the offender had intended to kill Ms Lewis, but what he did was not pre-planned. It was a violent, emotional reaction to the situation in which the offender eventually found himself. In the circumstances he thought it right to be as merciful as his public duty allowed, but the children had lost their mother and Ms Lewis's wider family had lost her. She was deeply loved despite her faults. The length of sentence which he imposed was not to be compared with the value of the life that had been lost, because that was priceless.
74. The Attorney General put forward as an aggravating feature of the case that the victim was entitled to leave the relationship without being subjected to violence. We observe that the defence of provocation was not advanced simply on the basis that the victim told the offender that she would leave him, but on the exchanges about the children. As in the case of Humes, the Attorney General also puts forward as an aggravating feature the fact the victim was the mother of the offender's children who had been deprived of her by his actions. It is also submitted that the offence was aggravated by the fact that by inviting the victim to the house the offender had brought about the situation which resulted in his violence, and that the victim was physically no match for the offender and would have been quite unable to defend herself. Finally the Attorney General submits that the offender intended to kill her (as opposed to causing really serious injury), as to which we observe that if that was the Jury's view, they concluded that his action was partially excusable notwithstanding.
75. The Attorney General accepted the offender's positive good character, the lack of planning or organisation of the killing, and the fact that no weapon had been used, as mitigating features.
76. The sentence is shorter than is usual in this kind of case and we grant leave, but the Judge who had presided over the trial expressly stated that he thought it right to be as merciful as his public duty allowed him to be. We are unable to say either that he was not entitled to adopt this approach in deciding upon the sentence or that he was so merciful that the sentence is to be regarded as unduly lenient. Accordingly we decline to interfere.