England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 29 January 2010

1. LORD JUSTICE HOOPER: The Recorder of Croydon will give the judgment.
2. RECORDER OF CROYDON: On 19 December 2008 at the Central Criminal Court, the appellant was convicted after a trial of the offence of manslaughter. He had been indicted for murder and was acquitted by the jury of that offence. His co-defendant, Kay Scrivener, who had also been indicted for murder and, in addition, an assault on the deceased's partner, was acquitted of both charges.
3. On 30 January 2009, HHJ Moss QC, who had presided over the trial, sentenced the appellant to 11 years' imprisonment. The judge ordered, pursuant to section 240 of the Criminal Justice Act 2003, that 367 days already spent in custody on remand should count towards sentence. He now appeals against sentence with leave of the Full Court.
4. The facts of the case were these. The deceased was David Martin, who was killed by the appellant on 27 January 2008. During that afternoon, his son, Jamie, was playing football with two friends, and when he was due to go home, his two friends would not give him his football back. He went home without it and told his parents. They sent him back to retrieve the ball, but he ended up in a struggle with one of his friends as he was on his mobile phone to his father. The deceased having heard his son cry out, went round to confront his two sons' friends. He grabbed one of the boys around the neck and pushed him against a wall. The boy's parents then confronted the deceased and an argument ensued. The appellant, who had seen what was happening, came out of his house and joined in. He said to the deceased, "What are you doing touching kids?" The deceased retorted by calling the appellant "a wife beater". The quarrel between the two men continued, but eventually the appellant went home and so did the deceased. However, the deceased was still angry, and he grabbed a piece of wood which was used in his house as a parrot perch. We have seen that item today and it has the appearance of half of a broomstick handle. He then made his way to the appellant's home. The appellant's partner, the co-defendant, Kay Scrivener, answered the door and an argument ensued. The appellant heard the argument and he emerged from his bedroom with a cutlass-type sword and a snooker cue. He then attacked the deceased with both weapons. Both men fought each other in the garden outside the house, and during the fight the deceased was stabbed with the sword and killed at a moment when Miss Scrivener had pulled on the back of the deceased. Children and partners from both families witnessed the scene.
5. Paramedics attended and the deceased was taken to hospital but could not be saved. The deceased died from a single stab wound to the chest, which had penetrated the aorta. The following day the appellant handed himself in to the police, and he told the police where they could find the sword. In a prepared statement, he denied deliberately stabbing the deceased, and said that he had acted to protect his partner.
6. The appellant is 39 years of age, 38 at the time. He has nine previous court appearances for 14 offences between 1985 and 2004. These include, amongst others, criminal damage, conspiracy to rob, threatening behaviour, possessing an offensive weapon, possession of a class B drug, assault occasioning actual bodily harm and assault on a constable.
7. In sentencing the appellant, the learned judge said that the appellant had reacted wholly disproportionately to the incident. He had lost his temper and self-control, and armed himself with a sword and a snooker cue. Mr Martin had been left dying in front of his family, including children. The attack, the judge accepted, had not been premeditated, and it was accepted also that the intention had not been to kill. Provocation was identified by the learned judge to be-

"... acting as you did by reason of the unwelcome presence at your home of the deceased and by the use upon you by the deceased of a weapon of sorts, a parrot perch, as I am satisfied it undoubtedly was, which could not itself be justified, and by reason of his own aggressive approach to your partner."

8. However, having taken alcohol and cannabis, the appellant had brought a sword to an angry and possible violent confrontation. That was an aggravating feature. The learned judge referred to the definitive and detailed guidelines on sentencing for offences of manslaughter by reason of provocation, issued by the Sentencing Guidelines Council, and in so doing added:

"You had lost your self-control by reason of provocation, which was, in my judgment, not substantial."

9. It is this observation, along with what the learned judge identified to be the provocative words and conduct with which Mr Carter-Stephenson QC, on behalf of this appellant, takes issue in his grounds of appeal and has further developed before us today. Mr Carter-Stephenson submits that the sentence imposed was manifestly excessive, and he contends the judge erred in his analysis of the provocative conduct, asserting, to use the phraseology contained in the Guidelines, that it was cumulative, having begun earlier in the afternoon, and that the learned judge had failed to have regard to the weapons taken in the heat of the moment at a time when the appellant was subject to provocation and then seized, and further, that the weapons were not habitually carried. He also relies heavily on the appellant's genuine remorse, his lack of premeditation, and the deceased himself having a weapon and making threats.
10. On the other hand, Mr Orchard, on behalf of the Crown, submits the learned judge was quite entitled to limit the provocation to that which began on the doorstep. He has referred us to page 9 of the Sentencing Guidelines, where at paragraph 4 it states.

"An assessment of the degree of the provocation as shown by its nature and duration is the critical factor in the sentencing decision."

And at paragraph 5:

"The intensity, extent and nature of the loss of control must be assessed in the context of the provocation that preceded it."

11. He argues that the appellant had returned home after the earlier incident, and there was no evidence to suggest that he considered that it would continue. The extent of the earlier incident as far as it involved the appellant was this: that the deceased seized the boys' bikes and grabbed one of the boys by the throat. That boy's parents confronted David Martin, urging that the matter be sorted out between the adults. The appellant joined in the conversation, saying to David Martin, "What are you touching kids for?" David Martin commented on the appellant being a wife beater and made some other comments. The appellant returned home, at which stage the first incident ended. In other words, it was a relatively trivial incident, albeit providing a context for what was later to follow, but not in any real sense providing additional causative provocation. But if so, then it was minimal.
12. We have listened with care to these submissions. This was of course a contested matter. Although the defendant expressed remorse at the death of the deceased, he had sought to explain the lethal wound as having been inflicted on the deceased by accident, caused in the course of his having acted in self-defence or defence of his partner, and that there had been no intention to cause grievous bodily harm. This was firmly rejected by the jury, as the learned judge observed. Provocation was not being run as an alternative partial defence, although the judge rightly left it to the jury for consideration.
13. In our judgment, this very experienced judge was in the best possible position, having heard all the evidence, to weigh up the various considerations and factors upon which Mr Carter-Stephenson relies, and to limit the provocative conduct to that which occurred at the doorstep and up until the infliction of the fatal wound. It is suggested that, in the course of the argument at the doorstep, the words "wife beater" were used by the deceased, a reference back to what had been said at the earlier incident. However the appellant gave no evidence himself that he heard any such remark. In the event, the learned judge came to the conclusion that the provocation was not substantial, a view not only being one that the learned judge was best placed to come to having heard all the evidence, and it being one that he was entitled to come to, but, in our judgment, it was the correct analysis of these wholly tragic events.
14. Applying the guidelines, the starting point was a sentence of 12 years' imprisonment with a sentencing range of 10 years to life imprisonment. As it was, the sentence passed, as we have said, was one of 11 years, mercifully a year less than the starting point. This, in our judgment, took into account all the various mitigating features relied upon by Mr Carter-Stephenson, including in particular this appellant's difficult upbringing and problematic marital history, and indeed all the various competing factors.
15. In the result, we are unpersuaded that this sentence can properly be categorised as one which was manifestly excessive, and accordingly the appeal is dismissed.