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
		13 July 2007

LORD JUSTICE LEVESON:

1. On 22 March 2007, at the Crown Court at Nottingham, before His Honour Judge Milmo QC, the appellant pleaded guilty to offences of manslaughter and supplying a drug of Class A, namely methadone. He was sentenced to concurrent terms of four-and-a-half years and three years' imprisonment, making four-and-a-half years' imprisonment in all. He now appeals against sentence by leave of the single judge.
2. The facts can be summarised briefly. The deceased, Ryan Farnworth, who was a prison officer, and his girlfriend, Ms Tyers, had both been recreational drug users for a number of years. The appellant also had been addicted to drugs and had been prescribed methadone to deal with his problem of addiction to heroin.
3. Because Ms Tyers was due to go to work in Tenerife, on 28 July 2006 she decided to hold an impromptu leaving party with friends in a public house near Derby. Mr Farnworth drank a considerable quantity of alcohol. Whilst not incapable through drink, he had certainly consumed more than was good for him.
4. At about 11.30pm the appellant arrived at the public house with a friend. He had met both Mr Farnworth and Ms Tyers a few times before and they knew of his previous addiction to heroin. He had been prescribed methadone since 2005 and had been told by his drugs worker that methadone and alcohol did not mix and that an excessive quantity of alcohol combined with methadone was extremely dangerous. He had signed a form indicating that he was aware of that danger, although he said that his recollection of that fact on the night of the incident failed him.
5. The appellant drove his friend, Mr Farnworth and Ms Tyers to his friend's house. He did not drink himself, but the other three did and continued to do so at the friend's house. Each took half an ecstasy tablet. At about 3am they went to a nature reserve, where they continued to drink. Whilst there, the appellant offered them some methadone. He said that it would stop them wanting more ecstasy. He poured some into a glass and handed it to Mr Farnworth, who drank it. He then poured out a quantity for Ms Tyers, who also drank it. At 5.30am they walked back to collect the appellant's car as he needed to obtain some more methadone from his home address. They drove off. At around 10am they were at another beauty spot. By this time all three passengers were asleep. The appellant's friend woke up and noted that Mr Farnworth and Ms Tyers were making strange noises. The appellant and his friend went to another public house, and various people came and went. Ultimately, a decision was made to go to hospital because Mr Farnworth's fingertips and lips were turning blue. Tragically, it was too late to revive him and he died. Ms Tyers survived, but suffered a significant loss of hearing as a result of oxygen deprivation.
6. The appellant later attended at a police station, where he made full and frank admissions in relation to his part in the incident. He made it clear that he could not remember the discussions that he had had with his drugs worker about the dangers of methadone and alcohol.
7. At the time of this incident the appellant was 27 years of age. He was treated by the judge as of good character. There was a substantial body of material in the form of references and letters dealing with his excellent prior character. These letters also referred to the impact of this tragedy upon him.
8. When passing sentence the judge spoke of the devastating effect of the events of 29 July both on the family of the deceased and upon the appellant. He went on:

"The results were entirely predictable. Methadone is a synthetic opiate, just as heroin, morphine and codeine are natural opiates. Those involved had already drunk a quantity of alcohol and taken a number of ecstasy tablets. If only bottles of methadone contained these five words, 'Do not take with alcohol', this whole tragedy might have been avoided. Your drugs worker had alerted you to the fact that methadone and alcohol do not mix. Clearly, you had totally forgotten that or ignored it on the night in question.

The offence of manslaughter is aggravated by the circumstances of count 2 [the supply to Natalie Tyers]. I expressly make clear that I do not regard as an aggravating feature in this case the fact that subsequently, thinking that they were both asleep and sleeping it off, you did nothing."

The judge then referred to a number of authorities which he considered were difficult to reconcile. He concluded that an appropriate sentence after a plea of guilty in circumstances such as this was one of five years' imprisonment. He then reduced that sentence by six months to allow for the personal mitigation.

9. In the circumstances it is appropriate to review the cases mentioned by the sentencing judge. In R v Clarke and Purvis (1992) 13 Cr App R(S) 552, this court reduced a sentence of five years' imprisonment following a guilty plea to manslaughter arising from heroin poisoning, aggravated by alcohol, to one of three-and-a-half years on the basis that, although dabbling in the injection of heroin was dabbling in potential death, insufficient credit had been given for a guilty plea. Lord Lane CJ referred to two earlier cases where sentences equivalent to two years (in fact a sentence of borstal training) and three years had been passed. That decision was considered in R v O'Brien (1994) 15 Cr App R(S) 556, when again five years' imprisonment was reduced to three years on the basis that the supply was not commercial; the appellant had been unaware of the heroin and had personal mitigation arising from his service during the Gulf War.
10. A different approach was adopted in Attorney General's Reference No 5 of 1995 [1996] 1 Cr App R(S) 85. In that case a total of five years for one offence of manslaughter and a second offence of administering a noxious substance was increased to eight years, even allowing for double jeopardy. The important feature (which like this case involved the supply of methadone) was that while on bail for supplying methadone to a man, which had caused severe brain damage, the appellant then dishonestly obtained a further supply before being arrested. A few weeks later, having continued to be provided with methadone and having acknowledged that to provide it to someone not used to taking it would cause serious damage or even death, he provided a second man with a dose that proved fatal. Committing an identical offence with even more severe consequences than the first serious supply when he had acknowledged the very real risk of causing exactly what had twice occurred, inevitably demanded a very severe sentence, rightly consecutive in term.
11. In R v Lucas [1999] 1 Cr App R(S) 78, a sentence of five years' imprisonment for supplying heroin to a girlfriend who self-administered the drug whilst also affected by alcohol and died, was reduced to three years. Judge LJ (as he then was) noted that the drug had been supplied at the direct request of the deceased, who had no idea of the risk that she was running. The appellant in that case had gained nothing personally and was devastated by the consequences of what had happened, such that he had confessed immediately to the police, as indeed had this appellant.
12. R v Atherton [2002] 1 Cr App R(S) 115 referred to an unreported decision in R v Edwards, [1998] EWCA Crim 1413, in which Lord Bingham CJ had spoken of the need for a measure of deterrence in cases of this nature, with the result that a five year sentence of imprisonment following a trial was left unaltered. That case also referred to Attorney General's Reference No 5 of 1995, and reduced from six years to five years a sentence for manslaughter which followed the appellant injecting himself and his victim with heroin. That was a late plea of guilty so that the full discount was not appropriate. The sentence was also passed in circumstances in which features of the locality from which the case came demanded a deterrent element.
13. R v Powell [2002] 2 Cr App R(S) 117 concerned the death of a woman who had drunk a significant quantity of alcohol, had taken heroin and then had demanded more. Notwithstanding the fact that the appellant and his flat mates had attempted to persuade her not to have more, warning her of the dangers of overdose, at her request the appellant provided the fatal injection. A sentence of five years' imprisonment, following a guilty plea and information about the supplier, was reduced to three years.
14. Finally, in R v Braybrooks [2003] 1 Cr App R(S) 114, a term of five years' imprisonment was upheld following a trial for manslaughter by injection of heroin into a drug user, with a further term of twelve months' imprisonment for attempting to pervert the course of justice being ordered to run concurrently rather than consecutively. It was made clear that the court had emphasised the need for stern and deterrent sentences where the supply of heroin was concerned, and that five years after a trial was appropriate. The further aggravating feature of a persistent attempt to deceive the authorities as to what had happened led to the additional term. Although the five year term for manslaughter was held manifestly correct, and a consecutive sentence was considered appropriate for perverting the course of justice, the personal mitigation was such that the term was ordered to be concurrent.
15. In all the circumstances we do not consider that these decisions are irreconcilable. True it is that Attorney General's Reference No 5 of 1995 concerned a five year term after a plea. But the circumstances in which that offence was committed inevitably seriously aggravated the criminality involved. The lack of discount in Atherton may be explained not only by the late plea, but also by the local need for deterrence. In the main the consistent approach, as Mr Janes for the Crown acknowledged, appears to be a sentence in the order of five years after a trial, with appropriate scaling down for a guilty plea and other mitigation.
16. In this case it must be accepted that the methadone was not illegally acquired, but was part of a lawful supply to the appellant to help him become drug-free. On the other hand, the careful medical attention that he had received when obtaining his supply must have underlined (or should have underlined) the need for caution, however accurate the assertion that he had forgotten that the drug was not to be taken with alcohol. Further, the feature that the deceased, although a recreational drug-user with ecstasy, had not taken either heroin or methadone before makes the case more serious than some of those to which reference has been made, as does the fact that the drug was also supplied to another, who was herself seriously affected and is left with permanent effects following the overdose. All that can be said about that feature is to differentiate it from Attorney General's Reference No 5 of 2005 [1995 ?] on the basis that the supply was at the same time as that administered to the unfortunate Ryan Farnworth.
17. On the other hand, there is important and impressive mitigation. First, the appellant voluntarily attended the police station and made a full admission. The judge referred to his continuing and enduring remorse. He accepted that there was no malevolence in the supply. The appellant was treated as a man of good character, and references spoke of him in the highest terms. We have already referred to the judge's comment upon the devastating loss suffered by the family of the deceased and the devastation caused to the appellant and his own family.
18. We take the view that the aggravating features of this case justify a starting point in the order of six years. Giving a full and proper discount for his early admission and an additional allowance for the personal mitigation to which we have referred, we believe that the proper sentence in this case for manslaughter was one of three-and-a half years' imprisonment, with a concurrent term of two-and-a-half years for supplying a controlled drug, making a total of three-and-a-half years' imprisonment. To that extent this appeal is allowed.

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