England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Durham Crown Court
HHJ Prince
T20137089

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th February 2014

Lord Justice Treacy:

1. This matter is concerned with the appropriate level of sentencing for the offence of encouraging or assisting suicide pursuant to Section 2(1) of the Suicide Act 1961. It is a crime which is relatively rarely prosecuted. We understand that this case is the first prosecution since guidance from the Director of Public Prosecutions was issued to prosecutors in relation to such offences in the light of the judgment of the House of Lords in R (Purdy) v DPP [2010] 1 Cr App R 1.
2. The Appellant, Kevin James Howe, was sentenced at Durham Crown Court on 11^th October 2013, having previously been convicted after a trial. He was sentenced to 12 years detention in a Young Offender Institution. The matter has been referred to the Full Court by the Registrar. We now grant leave.
3. The Appellant was 19 years of age at the time of the offence and of previous good character. He and Stephen Walker, the victim, were good friends, described as being "virtually inseparable". Walker was 30 years of age and a vulnerable character. He suffered from mental health problems and had on a number of occasions in the past threatened to take his own life. Others may have considered those to be idle threats, but the judge who had heard the evidence, concluded that this Appellant, with his close knowledge of Walker, was aware that they were not idle threats, and that he was aware of Walker's exceptional vulnerability.
4. On 26^th May 2013 the two men met in the late morning and spent the day drinking. The Appellant was aware that drinking vodka was bad for Walker. That evening the Appellant left Walker's home, taking a petrol can. He made a 1½ mile round trip to a petrol station, buying nearly three litres of petrol and a cigarette lighter, before returning to Walker's home. Walker had previously been banned from that petrol station. As he was setting off, a neighbour told the Appellant not to go to buy petrol for Walker, but the Appellant had ignored him.
5. Whilst the Appellant was making that journey, Walker was talking to the neighbour in terms which showed that he was contemplating suicide. The Appellant brought the petrol back to Walker's house and spent a few minutes inside. The neighbour saw him coming out of the house, saying that Walker had the petrol and that he was going home to "get out of the way". The neighbour then went into the house and saw that Walker had poured petrol over himself and was singeing his arm with the cigarette lighter. After initially trying to put out flames around the petrol can, the neighbour, concerned as to what would happen, ran next door to get help from his cousin. When they returned, Walker was still holding the petrol can and igniting the lighter.
6. The cousin made an attempt to wrestle the can from him, but was unsuccessful. Walker poured more petrol over his head, and the men left the house in fear. As they did so, the petrol ignited; the house burst into flames; the windows were all shattered, and shortly afterwards Walker came out of the house. He was on fire. Flames were extending a foot above his head. His screams were terrible. Eventually help was given.
7. The house itself suffered extensive damage. Even more significantly, Walker suffered very serious injuries indeed. He sustained 95% burns to his total body surface. Most of them were third degree or full thickness burns. Miraculously, Walker has survived, having spent much time in intensive care and enduring multiple operations, which will no doubt continue in the future.
8. We have seen victim personal statements from Walker's mother and brother. They were available to the sentencing judge. Those statements show that their lives, in addition to Walker's, have been very badly affected by what has happened.
9. The judge had a pre-sentence report. It described the Appellant as a naïve young man with limited ability to recognise the consequences of his actions. His attitude at the time of interview is epitomised by his comment about the victim.

"I will never speak to him again for what he's put me through."

10. It is clear to us that there is no evidence of remorse available to this Appellant as mitigation.
11. The grounds of appeal urge that a sentence of 12 years youth custody was manifestly excessive in the light of the Appellant's age and previous good character. In addition it was submitted that the judge was wrong to have drawn a comparison between this offence and category 1 of the Sentencing Council's guideline in relation to a Section 18 offence under the Offences Against the Person Act 1861. It was said to be unhelpful to draw a parallel with that offence, whose maximum sentence is life imprisonment, as opposed to 14 years for the present offence, and where the Section 18 offence is primarily concerned with the direct and intentional infliction of harm by the offender against the victim.
12. The offence under Section 2(1) can be committed by either encouraging or assisting the suicide or attempted suicide of another. The necessary mental element is an intention to encourage or assist suicide or an attempt at suicide. As far as intention is concerned, we note that the death of the other person is in contemplation as opposed to serious harm. That is clearly a highly important factor inherent in the nature of the offence.
13. In R v Hough [1984] 6 Cr App R (S) 406 Lord Lane CJ, speaking of this offence, said:

"In terms of gravity it can vary from the borders of cold blooded murder down to the shadowy area of mercy killing or common humanity."

14. Clearly the resolution of cases coming before the court will involve a particularly fact specific examination.
15. There is understandably little authority and it is clear from the DPP's guidelines to prosecutors that some cases at the compassionate end of the spectrum will not result in prosecution, even if the ingredients of the offence are satisfied.
16. R v England [1991] 12 Cr App R (S) 1998 suggests that a term of about 3 years will generally be appropriate in a suicide pact case. This type of case is clearly at the lower end of the range.
17. In Attorney General's Reference No 85 of 2006 (Workman) [2007] 1 Cr App R (S) 104 the offender had aided and abetted his ex-wife's attempted suicide. She was a vulnerable person who was, to the knowledge of the defendant, suicidal, and who had a history of depression. He had applied persuasion over a period of weeks and provided drugs for his ex-wife to take. However, he had not forced her to take the drugs, and the court took the view that their activities were effectively consensual. In addition, the offender had sent a message to his ex-wife before her suicide attempt saying that he was not going to kill himself.
18. We would regard that case as significantly less serious than the present one by reason of the mutual consensual activity, the means used, and the potentially discouraging message sent prior to the ex-wife's attempted suicide. This court assessed the appropriate sentence as being 3 to 4 years after a trial. We have no reason to differ from the approach to the level of sentence in those two cases and their particular circumstances.
19. A considerably more serious case is McGranaghan [1987] 9 Cr App R (S) 447. This involved a plea of guilty to aiding and abetting attempted suicide. The defendant prisoner persuaded his cellmate to strangle himself with a sheet. He provided active assistance. He put the noose around the cellmate's neck and helped him onto the top of a cupboard, from which he jumped. The victim was a vulnerable individual who had been bullied by McGranaghan. The suicide attempt was McGranaghan's idea. His actions were motivated by what the judge described as a "totally unreasonable hatred" of the victim.
20. After initial denials, the offender had admitted matters shortly before committal proceedings. In modern terms, this would amount to an early guilty plea. In that case, of course, no death resulted. Although the victim had become unconscious, there is no suggestion of any lasting harm caused to him.
21. Apart from that important difference, the case is distinguished from the present one by that offender's hatred of his victim, his poor criminal record, and the fact that he was older. The sentence of 8 years after a guilty plea, which was upheld by this court, would suggest a figure of around 12 years after a trial.
22. Although that case was decided over a quarter of a century ago, we have no reason to disagree with or revise the level of sentencing indicated in those circumstances.
23. Before turning to this case we think it helpful to give guidance as to relevant factors for a court to consider in dealing with this offence. The guidance we give relates to what can be described as face to face encouragement or assistance as opposed to cases involving remote encouragement over the internet, which may take the form of encouragement given to multiple individuals unknown to the encourager. That class of case involves some different considerations from the present one, and has features which may need to be addressed on another occasion.
24. Adopting the approach of Section 143 of the Criminal Justice Act 2003 to a consideration of the seriousness of an offence by reference to the offender's culpability and harm caused, we identify a number of non-inclusive factors of relevance, stressing the need for each case to be considered on its own facts.
25. As to harm, the most serious cases will be those where death resulted. Next in the scale will be attempted suicides where serious harm resulted. The court will need in addition to take account of adverse consequences for people other than the primary victim. In addition, if serious harm has occurred, the court should assess whether the harm has been resolved, or whether it will continue into the foreseeable future. Harm in this context will include psychological as well as physical harm. Risk of harm to others, as occurred in this case, will be a less serious, but relevant factor.
26. At the bottom end of the harm range will be those cases where, despite encouragement with the necessary intent, the victim does not go on to attempt suicide. A little higher up the scale than that will be the case where a substance is provided with intent, but which in fact turns out to be harmless. There will clearly be cases which fall between the levels of harm just described and the upper end of the range.
27. Turning to culpability, the court will need to consider a number of factors in deciding the level of the offender's blameworthiness. They would include the presence of premeditation, persistence, and the extent of encouragement provided or assistance given, and the means by which the suicide is to take place. The offender's motivation may be important, with compassion at one end of the range, and malice or the prospect of gain at the other. In this context the existence of a duty of care or trust may play a part in determining the extent of culpability.
28. A court should consider whether the victim had a settled, voluntary and informed intention to commit suicide, or whether his or her state of mind was less certain. Whether the victim solicited assistance or encouragement is relevant, as is the victim's capacity to make a decision as to suicide. In this context, knowledge by the offender of the extent of any vulnerability of the victim will be important. Again, evidence of threats, pressure or persuasion applied to the victim will have a bearing on culpability.
29. Those seem to us to be material considerations for a court in deciding where in the range of seriousness any particular offence lies. In those cases where the custodial threshold is crossed, we would envisage the range running from 3 years to 12 years or more where an attempt at suicide or actual suicide has taken place. Where the victim has not attempted suicide, but the offence has nonetheless been committed, there may be cases which do not cross the custody threshold, but that will very much depend on the circumstances of the case. Naturally, in any case once an assessment of seriousness has been made, the court will need to consider aggravating and mitigating features of a more generic nature.
30. Returning to this case, we consider that it was at the upper end of the spectrum. The judge remarked that he could not think of a more serious example. This maybe something of an overstatement in that death did not in fact occur and that the Appellant was not motivated by gain or malice.
31. The Appellant lost potential mitigation by contesting the case. He has also shown no remorse. Although the harm done falls short of death resulting, the injuries caused will have permanent effect and are of the gravest nature. The harmful impact of what has occurred will be ongoing for the victim's family in practical as well as emotional terms.
32. As to culpability, the Appellant was well aware of the victim's vulnerability and knew that his previous threats of suicide were not idle. There was a degree of premeditation in what he did since he made a journey to and from the petrol station in the course of which he ignored a warning from a neighbour not to buy petrol. He provided immediate assistance to the victim by handing him the newly acquired petrol can and lighter. These represented a lethal combination. It would have been obvious that the consequences of setting fire to oneself would be terrible.
33. The evidence does not suggest to us that the victim had an informed and settled intent to take his own life. Our judgment is that his state of mind was less certain than that. In any event he did not have the means of acquiring the petrol, and the Appellant had the means of intervention by refusing to obtain it. These actions were not carried out in the context of a very elderly and terminally ill person who was suffering and wanted to be put out of their misery. There were no compassionate circumstances. This is not a mercy killing, nor does it involve a suicide pact, a class of case which can be regarded considerably less seriously.
34. In our judgment, a consideration of the harm and culpability aspects of this case shows that this is a case of very high seriousness. The Appellant can legitimately refer in mitigation to his age at the time of the offence, his immaturity, and his absence of previous convictions. Death did not in fact result from his assistance, although these injuries would ordinarily have caused it, and the victim is left in a permanent and dreadful condition. There is no apparent ulterior motive. This is not a case of forcing the victim to act, albeit it is a case where the attempt at suicide could not have taken place but for the Appellant's actions.
35. In passing sentence the trial judge referred to the Sentencing Council's guideline on Section 18 offences, the maximum sentence for which is life imprisonment. Even if a mental adjustment could be made to reflect the lower maximum for this offence, we consider that reference to that guideline should have been made with great circumspection since the nature of the offending was rather different. In the light of this guidance we foresee no need for a sentencing court to make similar reference to that guideline.
36. In considering the submissions we have given particular weight to the Appellant's age, immaturity and absence of previous criminal record. Notwithstanding the gravity of this offence, we think that more weight should have been attached to those factors. When regard is also taken to the fact that the sentence imposed was close to the maximum, the absence from this case of certain features mentioned in paragraph 34 above confirms us in our view that notwithstanding the dreadful consequences for Mr Walker, this sentence was too long.
37. In all the circumstances we consider that the appropriate sentence should have been one of 10 years. We allow the appeal by substituting that term for the 12 years detention in a Young Offender Institution imposed below. Any ancillary orders are unaffected by this outcome.