England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		Friday 7 February 2003

Friday 7 February 2003

MR JUSTICE JACKSON:

1. This is a renewed application for leave to appeal against sentence following refusal by the single judge. On 11 January 2002, the applicant was convicted of manslaughter at the Lewes Crown Court and sentenced to six years' imprisonment.
2. The facts giving rise to this offence are as follows. The applicant and his wife were both hard-working teachers at a girls school in West Sussex. They had two young sons. They appeared to their colleagues to be happily married.
3. In early 2001 Mrs Parnham started to have an affair with another teacher at the same school. This affair gave rise to a fierce argument between the applicant and his wife on the evening of Monday 5 March 2001. Only the applicant survived that evening. Therefore any account of what was said and done during that argument is based heavily upon the applicant's evidence. We say that in fairness to the deceased.
4. It appears from the evidence that during the argument Mrs Parnham picked up an iron bar and started hitting her husband about the head. The applicant took the bar from his wife and started hitting her with it. He then dropped the bar and went to call an ambulance. As he did so, his wife attacked him from behind. She hit him about the head and body with the bar. At some stage Mrs Parnham taunted the applicant, making unfavourable comparisons between her husband and her other lover. A struggle ensued during which the applicant repeatedly hit his wife with the iron bar. The applicant stated in evidence at trial that he was in "a kind of frenzy". These blows caused Mrs Parnham's immediate death. It appears from the medical evidence that the applicant must have struck 73 blows or thereabouts upon his wife. Of those blows 44 landed on her head.
5. At about 9.15pm neighbours who heard the commotion went to Mr and Mrs Parnham's home. The applicant then set out to deceive both the neighbours and the police officers who arrived shortly afterwards. The applicant claimed that both he and his wife had been attacked by intruders. This story did not stand up to analysis. Later that evening the applicant was arrested for murder. When interviewed he admitted that he had caused the injuries to his wife.
6. The applicant stood trial for murder at the Lewes Crown Court in January 2002. He put forward the following defences: self-defence, lack of intent to kill or to cause grievous bodily harm, and provocation. The jury rejected the defence of self-defence. However, they were not satisfied that the applicant had the requisite intent for murder. The jury found him guilty of involuntary manslaughter.
7. In passing sentence His Honour Judge Brown said:

"There are matters which go to your credit, obviously, your previous good character and your good work record. I accept that, of course, you are now really remorseful for what happened on 5 March of last year. That was, in fact, a horrendous attack upon your wife. This court has to balance the requirement to reflect the public horror at the taking of a life in those circumstances with the view that the jury have taken about your lack of intent. No sentence that I can impose would ever reflect the value of the life that you took; it cannot restore a loved one to her family or a mother to her children, and I am bound to follow the guidelines which are set down by the higher courts for the appropriate sentence in a case of this nature."

8. The applicant now seeks leave to appeal against the sentence of six years' imprisonment on two grounds. First, it is said that the judge erred in failing to give credit for the offer to plead guilty to manslaughter which had been made in and after October 2002. Secondly, it is said that in any event a sentence of six years' imprisonment was excessive; such sentence is not in line with previous decisions of this court.
9. We regard both points raised Mr Meredith on behalf of the applicant as being arguable. Accordingly we give leave to appeal.
10. We have this afternoon heard lengthy submissions from Mr Meredith. We have been taken through the relevant authorities. Mr Meredith does not have express instructions to waive the appellant's (as he now is) attendance at court today and to enable the appeal to proceed in the appellant's absence. However, when we raised the point Mr Meredith said that he is sure that, if asked, the appellant would wish the full appeal to proceed today. Mr Meredith is content that we should proceed to deal with the full appeal and give our judgment on that, subject to granting the appellant liberty to apply so that if he feels he has been prejudiced by his absence from court today he has the opportunity to come back to this court and to make further submissions upon his appeal. This is not a course which we would encourage him to take, bearing in mind that the appeal has been fully argued today. But nevertheless we must, and at the end of this judgment we do, grant liberty to apply if the appellant wishes to do so.
11. We turn to the substantive appeal. We deal, first, with ground 1, the lack of any credit for a plea of guilty. It can be seen from the judge's sentencing remarks that he made no reference to giving credit for the offer of a plea of guilty. It is implicit, therefore, that he did not do so. Any doubt in this regard is laid to rest by the transcript of the discussion between counsel and the judge which took place towards the end of the trial. The relevant part of the transcript reads:

"THE JUDGE: You see, the important factor is when you start, as you probably will in a moment, suggesting that I give credit for what, in effect, might have been an indication of a plea of guilty to manslaughter, how can I do that, when I have been addressing the jury in the course of today on the basis your client is saying he is not guilty of anything? It is a dilemma, and I am asking you how do I deal with it.

MR WOOD [Counsel for the appellant]: Your Honour, the fact is that we made that offer to the Crown in October. We reiterated that offer, and I hope my learned friend, Mr Katz, does not mind me saying this, we reiterated it to the Crown on Monday of this week, and the Crown's view was that it was not acceptable, and they wished the jury to resolve this matter. It seemed to me then only right, acting in Mr Parnham's interests, that the jury should have before them all possible verdicts, which seemed to me, on the face of the papers, and on the way the evidence turned out, still to be available."

It is clear from the way the transcript continues and from the sentencing remarks that the judge proceeded to sentence on the basis that no discount was due for the offer of a plea of guilty to manslaughter.

12. We note that the appellant had offered to plead guilty some months before trial. The prosecution, as they were quite entitled to do, rejected that offer. The matter therefore proceeded on a fully contested basis. In our view some credit for the offer of a plea of guilty to the very offence of which the appellant was ultimately convicted is due. Therefore, we propose to allow some credit for the offer of a plea of guilty pursuant to ground 1.
13. We turn to the second ground of appeal. Mr Meredith has very helpfully taken us through a large number of authorities bearing on manslaughter. A number of the authorities to which he referred concerned manslaughter by reason of provocation. We do not intend to go through these. Those authorities indicated that sentences in the range of five to seven years are not uncommon in cases of manslaughter following provocation in a domestic context.
14. Mr Meredith then took us to a number of cases of involuntary manslaughter, which are closer to the facts of this case. Mr Meredith submits that sentences for involuntary manslaughter committed in the domestic context normally range up to about five years' imprisonment. Involuntary manslaughter is regarded as a less serious offence than manslaughter by reason of provocation because in cases of involuntary manslaughter the offender has not intended either to kill or even to cause really serious bodily harm to his victim. The cases of involuntary manslaughter upon which Mr Meredith placed particular reliance are: R v Palmer (1990) 12 Cr App R(S) 585, R v Higgins [1996] 1 Cr App R(S) 271, and R v Suratan [2002] EWCA Crim 2982 (20.12.02). In Palmer the appellant was convicted of manslaughter on an indictment for murder. In the course of an argument with his wife the appellant fetched a knife from the kitchen to frighten her; the argument turned into a fight in the course of which his wife received a fatal stab wound. The appellant claimed that the wound was inflicted accidentally, without any intent to kill or cause grievous bodily harm. The jury rejected the defence of accident, but found that the defendant was guilty of manslaughter rather than murder because his intention did not extend to an intent to cause death or really serious bodily harm. The defendant was sentenced to seven years' imprisonment. The Court of Appeal reduced the sentence to five years' imprisonment. Mann LJ, giving the judgment of the court, noted the lack of intent as being a central feature of the jury's verdict and although such a killing had to be marked by a prison sentence, the court considered that seven years was manifestly excessive.
15. In Higgins, the appellant, a woman, pleaded guilty to manslaughter. The appellant had been married to the deceased for four-and-a-half years. The deceased was an alcoholic and was occasionally abusive and violent towards her. On the day of the offence the appellant and the deceased spent some time drinking together in a public house. When they returned home the deceased had a high blood alcohol level. A violent argument broke out and the deceased hit the appellant in the face. He then took a knife and held it out to her saying, "Stab me". The appellant stabbed the deceased through the heart. This caused his death. The appellant's plea of guilty to manslaughter was accepted by the prosecution on the ground of lack of intention to cause grievous bodily harm. The trial judge sentenced the appellant to three years' imprisonment. The Court of Appeal quashed the sentence of imprisonment and substituted a probation order for two years. It should be noted that the appellant in that case had substantial mitigating factors to rely upon: there was the violence and provocation from the deceased which she had suffered over a period of time; in addition, the appellant suffered from clinical depression at the time of the killing.
16. In Suratan the offender had been convicted of involuntary manslaughter and sentenced to a term of three-and-a-half years' imprisonment. He had killed his partner by striking two blows upon her during a quarrel. She had fallen to the ground and in doing so had suffered a fatal haemorrhage. The reason for the attack by the offender upon his partner was not clear. The Attorney General referred the matter to the Court of Appeal. The Court of Appeal took the view that the sentence of three-and-a-half years' imprisonment was lenient but not unduly so, and declined to interfere. The Court of Appeal regarded as the most important factor the fact that the offender did not intend to cause his partner any severe injury, let alone to kill her.
17. In the light of the authorities Mr Meredith submits that the judge passed sentence on the appellant which would be more appropriate to a case of manslaughter by reason of provocation than to a case of involuntary manslaughter. Accordingly, submits Mr Meredith, the sentence imposed is manifestly excessive.
18. We stand back and look at this case as a whole. We bear in mind that some credit should be given to the appellant, despite his contesting the matter fully at trial, because of the previous offer of a plea of guilty to manslaughter. We also accept the submission made by Mr Meredith that the sentence imposed by the judge is somewhat out of line with decisions of this court in comparable cases. However, we consider that in Higgins the appellant had available substantial mitigating features which are not present in this case. In Suratan there was a course of conduct leading up to the killing which provided some mitigation; and we note that the Court of Appeal, although it did not increase the sentence, clearly regarded the sentence as being too lenient.
19. In the present case it should be noted that although the blows struck by the deceased caused some injury, the appellant received no serious injuries. On the other hand, the attack upon his wife was one of excessive ferocity. That ferocity was treated by the jury as being indicative of a frenzied state which had the consequence that the appellant did not intend to cause the really serious bodily injury which self-evidently was bound to follow from the blows he struck with an iron bar.
20. Reviewing all the circumstances of this case, and bearing in mind the authorities to which we have referred, we have come to the conclusion that a sentence of six years' imprisonment was manifestly excessive and that the proper sentence was one of four years' imprisonment. Accordingly, the appeal is allowed. The sentence of six years' imprisonment is quashed and there will be substituted a sentence of four years' imprisonment.
21. For the reasons mentioned earlier in this judgment, the appellant has liberty to apply if he sees fit. However, that is not a course of action which we encourage.
22. MR MEREDITH: My Lord, would your Lordships grant a representation order? Could I perhaps make this submission? I will possibly have to speak now with the appellant to inform him of your Lordships' judgment and identify whether or not he feels it necessary to make further submissions -- I suspect not. But could I ask that the representation order be extended so that I might make those enquiries?
23. MR JUSTICE JACKSON: Yes, certainly.
24. MR MEREDITH: And so far as this hearing is concerned as well?
25. MR JUSTICE JACKSON: Yes.