No: 200603838 A6 
Neutral Citation Number: [2006] EWCA Crim 2623
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Monday, 9th October 2006
 
B E F O R E:

LORD JUSTICE LATHAM
Vice President of the Court of Appeal Criminal Division 

MR JUSTICE SIMON 

MRS JUSTICE GLOSTER DBE 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 085 OF 2006    
 
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Computer Aided Transcript of the Stenograph Notes of  
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MR N HILLIARD appeared on behalf of the ATTORNEY GENERAL
MR T COMPTON appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	LORD JUSTICE LATHAM:  This is an application by the Attorney General pursuant to section 36 of the Criminal Justice Act 1988 to refer to this court as unduly lenient a sentence imposed upon the offender, David Workman, on 7th July 2006 of 18 months' imprisonment.  The sentence was imposed for an offence of aiding and abetting an attempted suicide to which the offender had pleaded guilty on 2nd June 2006. 
2.	The circumstances are unusual to say the least.  The judge described it as "a strange offence", and indeed it was.  The facts related to events involving the offender and his former wife, Jean Day.  She had suffered for many years from severe depression and other mental health problems and had a history of suicide attempts.  She made contact with her ex-husband some time prior to the beginning of 2006; and it is clear from then that the relationship between them was resumed, but in very strange circumstances.  There was no doubt that they communicated, including communication by correspondence which was correspondence of a significant sexual nature in which the offender indicated to her fantasies in relation to the use of drugs, in relation to suicide both of him and of her.  He obtained a variety of drugs for her which would appear to have been obtained in the context of the fantasies evidenced by that correspondence.
3.	The position at the beginning of 2006 was that Karen Reid whom Jean Day had befriended at a psychiatric hospital in Basingstoke was contacted by her by text message which said: 
"Kaz, I'm at home, can't talk on the phone but I really need you to come round alone.  Left the front door open and I need you to come up to my room I have something to show you.  Please help me from Jean."  
Karen Reid went round to Day's bedroom.  Day was in bed under the quilt with her eyes closed.  On the floor around her were littered boxes and blister packs of a mixture of prescription drugs.  Some of the packs contained the anti-depressant amitryptyline, which is a substance which can lead to loss of life if taken to excess.  Reid asked her what she had taken.  The answer was "Not enough to kill me".  She smelt alcohol and there were empty bottles of alcohol around Jean Day, including a half bottle of rum.  Day said "Dave [that is the offender] promised me I would be dead by Thursday.  He has let me down".  There was a suicide note stuck to the wardrobe addressed to Karen Reid explaining that the offender had called her when she was depressed, that he had got drugs for her, and that he felt as she did.  
4.	Karen Reid also saw five or six disposable barbeques in the room, out of their packaging and ready to be lit.  Karen Reid went downstairs to call for the ambulance and in the short time that she was away, Jean Day lit the barbecue packs.  Black duct tape turned out to have been put round the bedroom door and windows so by the time the police arrived the room was completely smoke-filled.  Jean Day had to be forcibly removed from it.
5.	When she was interviewed, she said that she had taken valium and alcohol.  She had discussed ways of committing suicide with the offender.  She asserted that he had not made her do it and, significantly, amongst the answers she gave she said that the offender ultimately sent her a text saying that he was not intending to commit suicide himself.
6.	The correspondence to which we have referred was found in her property.  The police then sought to interview the offender.  When he was first seen he said, "It's my ex-wife, she's dead, isn't she?".  When arrested, he said "I was up there on Monday.  I knew she was going to attempt suicide.  I've had enough of it".
7.	In later interviews, Jean Day described sexual practices between her and the offender which were consistent with the correspondence.  She said that the offender had encouraged her to commit suicide and had been the person who had provided the drugs which had been seen by Karen Reid and found by the police when the premises were searched.  The offender admitted that he knew that Jean Day was vulnerable and that she was suicidal.  He said that he himself had never intended to commit suicide, although he acknowledged writing the letters in which that was mentioned.  He was adamant to those who were advising him and appearing for him during the course of the trial period that he fully accepted responsibility for what had happened, and indeed was prepared to plead guilty to the offence for which he was charged even though his advisors considered that there may have been available to him defences.
8.	On behalf of the Attorney General, Mr Hilliard points to the aggravating features which were undoubtedly present.  The offender had sought to persuade Jean Day to commit suicide over a substantial period, about four to five weeks.  He knew that she was vulnerable to such persuasion; and the nature of the correspondence indicated that there was a substantial sexual element to what he was doing.  At one stage he had deceived her into believing that he would commit suicide when he had no intention of doing so.  And it would appear that he had taken no steps to obtain help for her when he knew or believed she was imminently intending to commit suicide.  
9.	It is acknowledged that the offender is a man of effectively good character, now aged 52.  He had admitted his guilt and pleaded guilty at the first opportunity in the circumstances to which we have alluded.  Further, the offender was and is the prime carer for his elderly mother.  Mr Hilliard has referred us in particular to the cases of McGranaghan [1987] 9 Cr.App.R(S), England [1990] 12 Cr.App.R(S) 98 and Osborne [1992] 13 Cr.App.R(S) 225.  From those authorities it is submitted that in cases of suicide pacts, the appropriate sentence for the person who is charged with assisting suicide where there are no compassionate circumstances such as great pain or illness is round about 3 years' imprisonment.  But it is submitted on behalf of the Attorney General that where there is no true suicide pact, and where the person involved has encouraged the suicide not intending suicide him or herself, the case of McGranaghan suggests that sentences substantially in excess of 3 years are appropriate.
10.	The learned judge in his sentencing remarks indicated that he considered that the starting point in this case was one of 2 and a half years.  He reduced that for the plea of guilty and further rounded it down to a figure of 18 months' imprisonment to take account of the other mitigation in the case.  That, says Mr Hilliard, is clearly an unduly lenient sentence.
11.	On behalf of the offender, Mr Compton points to his good character, to the very particular circumstances of this case, and to the fact that the offender was caring at the time of his sentence for his elderly mother.
12.	We have considered this case with some care.  It raises a very difficult sentencing problem in the sense that it is undoubtedly a very unusual case.  It does not seem to us that the authorities to which we have referred give great help to the sentencing court in deciding what is the appropriate sentence.  The activities of these two people in the weeks leading up to the attempted suicide were essentially consensual.  The offender acknowledges, however, that the victim was vulnerable and clearly that has to be reflected in the sentence ultimately imposed.  It is part of the Attorney's case that the offender misled the victim into considering that it was to be a joint suicide; and there is no doubt that the correspondence to which we have referred consistently indicates that the fantasies which were related there involved both of them dying.  But the victim herself indicated that she was aware, certainly at the end, that he did not in fact intend to kill himself.
13.	In our judgment, the judge did adopt too low a starting point in this case.  One would have expected a sentence of 3 to 4 years as being the appropriate sentence after a plea of not guilty.  Seeking to persuade a vulnerable person to take his or her own life is a serious offence.  The question, however, is whether the sentence that the judge ultimately imposed is one which was unduly lenient and one which we consider, in the exercise of this court's discretion, to be one with which we should interfere bearing in mind all the circumstances of the case.  We have come to the conclusion that although it was clearly a lenient sentence bordering on the unduly lenient, this is not a case in which, it is necessary in the interests of justice for this court to interfere.  The facts of this case are extreme and unusual, which means that it does not provide any sensible blueprint for sentencing in other cases.  For those reasons, we decline to interfere with the sentence.