No: 200604057 A9 
Neutral Citation Number: [2006] EWCA Crim 3252
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Monday, 11 December 2006
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE MITTING 

MR JUSTICE TEARE 

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

ATTORNEY-GENERAL's REFERENCE NO 90 & 91 OF 2006    
 
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MR M MEEKE QC appeared on behalf of the ATTORNEY GENERAL
MR A JAFFERJEE 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 for leave to refer to this court under section 36 of the Criminal Justice Act 1988, the sentences imposed on these two offenders by the Recorder of Bristol on 11th August 2006.  We give leave to the Attorney-General to refer the matter to this court.  The offenders are, as far as Botchett is concerned, aged 34 years, and Richards 30 years.  They are both offenders with substantial previous convictions.  They pleaded guilty on 9th June 2006 to an indictment containing five counts: count 1 was manslaughter, to which each of them pleaded guilty.  Count 2 was inflicting grievous bodily harm in respect of which only the offender Botchett was charged and to which he pleaded guilty.  Count 3 was also in relation to the offender Botchett only and was one of theft, to which he pleaded guilty.  As far as counts 4 and 5 were concerned they were respectively attempted burglary and burglary, to which both of the offenders pleaded guilty.
2.	The history of the proceedings is a matter to which we will return at a later stage.  Suffice it to say for the moment that the pleas were entered on 9th June 2006 after considerable discussion between counsel, at which time the offenders faced a charge of murder on the first count of the indictment.  The judge at that time was Jones J and he considered that the prosecution were correct to accept pleas of not guilty to murder but guilty to manslaughter, and adjourned the case for sentence.  A basis of plea document was submitted by both of the offenders.  The matter, as we have indicated, was eventually dealt with by the Recorder of Bristol, and he sentenced the offenders as follows: Botchett  on count 1, for manslaughter, 5 years and four months' imprisonment; on count 2, inflicting grievous bodily harm, 2 years and 8 months' imprisonment; count 3, theft, 6 months' imprisonment; count 4, attempted burglary, 12 months' imprisonment; count 5, burglary, 2 years' imprisonment, all those sentences to be served concurrently.  The offender Richards was sentenced to 4 years' imprisonment on count 1; 12 months' imprisonment on count 4; 2 years' imprisonment on count 5, all those sentences to run concurrently.  
3.	The Attorney-General submits to us that those sentences, in the light of the facts which we will now relate, were unduly lenient.
4.	The attempted burglary was the first in point in time of the offences which those offenders committed.  They had driven together to the village of Painswick in Gloucestershire in 14 August 2005 and found themselves at the Painswick Hotel at about 8.30 that evening.  The hotel receptionist was alerted to the fact that there might be some intruders and eventually found, it would appear, the offender Botchett in the process of climbing into a ground floor guest room.  The offender Richards was behind him.  On realising that they had been seen, both men ran off.  They were seen running from the hotel by a couple walking their dog and moments later the same couple saw the offenders in a motorcar.  It would appear that during the course of the evening (it is not known precisely when) a Siemens mobile phone was stolen from a car in Painswick.  That in fact was ultimately used to place -- because it was used by the one of the offenders -- the offenders in the area later that evening at Hawkwood College.  That is an institution providing residential courses situated some two miles south of Painswick, with accommodation attached to it.  It also has in it accommodation for a caretaker, who was a Mr Jordan, and also a flat which was occupied by the deceased, Mr Hart.
5.	The college site is very secluded.  At about 9.00 pm, some half an hour after the incident at the Painswick Hotel, Mr Jordan, who is 53 years old, heard muffled voices downstairs, and then followed footsteps coming up the stairs to where he was, which was in his flat.  He stepped out onto the top of the staircase.  He saw somebody, said "Hello", at which point the two men were seen going back down the stairs and going out of the building.  Mr Jordan followed and was met by the offenders at the porch.  Mr Jordan asked what they were doing there.  Richards claimed that they had run out petrol.  Mr Jordan was unconvinced by this explanation and as they turned to walk away from the building he decided to follow.  As he passed the flat of Mr Hart he attracted his attention and asked him to accompany him.  They followed the offenders to the car park area, which is some distance from the main building.  When the offenders got to the car park the offender Botchett got into the passenger seat of the car and closed the door.  The offender Richards opened the driver's door.  Mr Jordan, who was thoroughly suspicious of both of these men, thought that Richards had produced a screwdriver but it may well have been the key of the car.  At this stage Mr Hart decided, unhappily, to intervene, and took up, as Mr Jordan described it, a typical fisticuffs attitude to the offender Richards, who said to Mr Hart, "Don't be aggressive", at which the deceased said he was not being aggressive.  The offender Botchett then decided to take matters into his own hands.  He leapt out of the car and went for Mr Hart.  In the basis of plea which was submitted to the judge in the first instance, he admitted that he struck Mr Hart on at least two occasions, one of those blows causing Mr Hart to fall to the ground.  That was explained to the judge as being "hand-offs", but it was accepted that both were powerful blows.  The result was that Mr Hart fell to the ground, struck his ahead, and sustained what proved to be, as a result, a fatal injury to the brain.  The offender Botchett was not content to leave the matter there.  He then proceeded to attack Mr Jordan.  He struck Mr Jordan a number of blows.  We have seen the results in photographs which were taken of Mr Jordan later that evening.  His eyes were severely swollen.  They were purple.  The severity of the injuries sustained by Mr Jordan was such that the paramedic who attended thought that the injuries had been sustained by his having been stamped on, there was so much swelling.  The description of the injuries at the hospital where he was taken for treatment were that he was suffering from gross bruising of both orbital regions, bilateral subconjunctival haemorrhaging.  He also had a chipped tooth.  
6.	The offender Botchett, meanwhile, whilst Mr Jordan was on the ground, stole £50 from Mr Jordan's pocket.  Those were the facts which gave rise to the indictment.
7.	In the circumstances that we have described, the Attorney-General submits that the sentences on both offenders were unduly lenient.  He points to the fact that the offence of manslaughter was committed effectively in the course of a burglary, albeit that the two premises which were entered by these offenders could be described as institutions rather than domestic houses, nevertheless they were both occupied:  a hotel on the one hand, and the college on the other, where there were the residential flats.
8.	The attack on Mr Hart was in order to escape.  The attack on Mr Jordan would appear to have had the same motive but would also appear to have been entirely gratuitous, as Mr Jordan from the evidence before us does not appear to have been attempting to play any part in the proceedings.  
9.	The offender Botchett has nine previous offences of burglary, one of previous assault on police, a conviction for robbery and a conviction for affray.  Further, he has been sentenced to a two-year community order for theft, criminal damage and obstructing an officer the day before the commission of these offences.  As far as the offender Richards was concerned, the killing was effected during the course of committing a burglary and the same comments as to the nature of the burglaries apply to him as to the offender Botchett.  His criminal record includes 20 previous convictions for burglary of both dwelling houses and non-dwelling buildings.  He was at the time on licence from a sentence of 33 months' imprisonment which had been imposed for offences of burglary.
10.	As far as the mitigating features were concerned both offenders had ultimately pleaded guilty.  Both expressed remorse.  Neither had set out that evening with violence in mind and, as far as the offender Richards was concerned, he played an entirely passive role in the incident which resulted in the death of Mr Hart and the injuries to Mr Jordan.
11.	The Attorney-General submits that, in the light of all that material, the least sentence which should have been considered by the sentencing judge for the offence of manslaughter, in relation to the offender Botchett, was one of 10 years' imprisonment if he considered a determinate sentence was appropriate.  But he submits that in truth this was a clear case in which the judge should have imposed a sentence of imprisonment for public protection, bearing in mind, firstly, the previous convictions for specified offences - that is robbery and affray, raising the presumption that the offender Botchett was a dangerous offender in the sense that he posed a significant risk of causing serious harm to the public as a result of committing specified offences; and that the nature of the attack on Mr Hart and Mr Jordan should have impelled the court to conclude that there was no justification for concluding that the assumption or presumption had been rebutted on the facts of this case.
12.	The Attorney-General further submits that as far as the offences overall were concerned there was no real justification for concurrent sentences; that the attack on Mr Jordan was an offence which justified in all the circumstances a consecutive sentence, carrying with it a significant determinate sentence if a determinate sentence was appropriate.   
13.	In support of those submissions we have been referred by Mr Jafferjee on behalf of the Attorney-General to Attorney-General's Reference (No 19, 20 and 21) [2001]; Burn and Others [2002] 1 Cr App R (S) 136, which was an authority drawn to the attention of the sentencing judge.  That case in fact was substantially different from the instant case, but Kay LJ, giving the judgment of the court, did make some general remarks as to the appropriate sentences in manslaughter cases.  As far as the case itself was concerned that involved a death in the course of a street robbery in which case the court concluded that the right starting point should have been 12 years' imprisonment with 2 years for the robbery itself as consecutive sentence, making a starting point together in the region of 14 to 15 years.  For a plea of guilty and double jeopardy the sentence in fact considered appropriate on the reference was one of 9 years' imprisonment.
14.	The court's judgment provides assistance for us in this case today simply by way of highlighting that there are indeed a multitude of considerations which are bound to affect the sentencing process in manslaughter cases.  The variety of circumstances in which manslaughter comes to be the offence for which an offender is to be sentenced is notoriously difficult to categorise in any way which provides from case to case more than very general assistance.
15.	The point that is made in the present case on behalf of the offenders, and indeed accepted on behalf of the Attorney-General, is that the significant difference between the Attorney-General's Reference in Burn and the present case is that the offences with which the court was there concerned were offences which, of their very nature, were likely to involve violence; whereas in the present case the violence arose out of a particular confrontation at the end of the burglary; and there is no reason for believing that either of the offenders approached the commission of these offences expecting to have to use violence at any stage.
16.	The position in this case is clearly complicated by the fact that the offences could not sensibly be said to have been intended as part of the plan with which these offenders set out that evening.  Nonetheless, as Mr Jafferjee points out, the death occurred in the course of burglary and Parliament has made it plain, as a result of the passing of Schedule 20 of the 2003 Criminal Justice Act, that murder in the course of burglary is to have as a starting point a 30-year period as the tariff.  That, Mr Jafferjee submits, must be reflected to some extent in the appropriate sentence, even though the offence here is one of manslaughter but not murder.   
17.	The extent to which, however, it is appropriate for the court to take the view that sentencing for manslaughter in these circumstances should in any way be equated to the sentence appropriate in murder is one which, in our judgment, calls for some caution.  There is no doubt that we should reflect, in any sentence we considered appropriate, the fact that the offence was committed in the course of a criminal venture.  But nonetheless, at the end of the day one of the critical features of sentencing in manslaughter cases is that the court must take into account the fact that there is or was no intent to cause really serious harm or to kill, and that is inherent in the offence with which the court is concerned.  Nonetheless, looking overall at the facts presented in this case, this court is of the view that the appropriate sentence for manslaughter should have been in the region of 10 to 12 years before any discount for plea.  That is substantially in excess of the 8 years which this sentencing judge considered was appropriate and which he proceeded to use as the base for the sentence of 5 years and 4 months on the offender Botchett, that discount being reached by reason of the plea of guilty.
18.	We also think that there is some force in Mr Jafferjee's submissions to us that in considering what overall sentence we should impose we should take into account the totality of the offending, namely the burglary, the attempted burglary and, above all, the offence of inflicting grievous bodily harm.  The right sentence for the manslaughter and the other criminality is in the region, before any discount for the plea of guilty, of 12 years.  
19.	Turning then to the question of dangerousness, we have looked with some care at the material which was before the judge.  The judge undoubtedly had in mind all the considerations which the 2003 Act required him to consider.  He concluded that as far as this offender Botchett was concerned, the presumption was one which was displaced by the fact that there had been no indication in the past that he was liable to inflict any serious harm in the course of his criminal activities.  It has been explained to us that the robbery was one which was effectively a snatch in the street and did not result in any, or any significant, injury.  The affray was akin to a domestic incident involving some, but not significant, violence.  The judge accordingly concluded that, whilst it was a matter which caused him concern, he was not prepared to conclude that it was right to categorise the offender Botchett as a man who would present a significant risk to members of the public of serious harm in the future in the commission of specified offences.
20.	We clearly have to approach that finding of the judge on the basis that, having taken into consideration all the factors that he should have done, we can only interfere with it if we come to the conclusion that it is clearly wrong.  The difficulty for the offender Botchett in our view is that the violence which he displayed on this particular night is of an extreme nature: he attacked both Mr Hart and Mr Jordan in circumstances which resulted in significant injury, leaving aside the unhappy consequence to Mr Hart of the injury to the brain as a result of his falling to the ground.  One only has to see what happened to Mr Jordan and to read his account to appreciate that this was a savage attack on both of them.
21.	Bearing in mind the offenders' record of offences of dishonesty, in particular burglary, we do not consider that what happened this night can be anything other than material which should result in the conclusion that he does pose a significant risk of serious harm to members of the public were he to commit any specified offences in the future.  We do not consider in those circumstances that the presumption is one which can properly be displaced on the facts of this case.  It follows that as far as the offender Botchett is concerned, we conclude that the sentence of the court should have been one of imprisonment for public protection.  We have indicated what we consider to be the appropriate period for a determinate sentence - that is one of 12 years' imprisonment, but into which we now have to factor the appropriate discount for his plea of guilty.  The plea of guilty came at a late stage.  The judge concluded that he could nonetheless give the full one-third discount; in other words, a discount on the basis that the plea of guilty had come at the first available opportunity.  In our judgment that cannot be an appropriate level of discount on the facts in this case.  The offender Botchett was first given an opportunity to provide a defence statement on 25th October 2005 by order made on 30th August 2005.  No defence statement was served.  An extension was granted to 25th November, no defence statement was served.  On 27th February further extension was granted to 13th March 2006, the defence statement was not finally received until 24th March 2006.
22.	There is no doubt that this case was not a straightforward one.  Manslaughter cases rarely are.  The charge is usually, as in this case, one of murder, and as in this case there may be issues in relation to the causation of death.  But it is difficult to see how it can properly be said that any plea was appropriately entered at the first available opportunity when nothing was said on behalf of the offender to indicate that he was at least accepting presence at the scene and responsibility for the attack on Mr Hart and Mr Jordan at any stage, until the ultimate service of the defence statement in March 2006.  In those circumstances, we do not consider that the offender is entitled to a full one-third discount.  We consider that the appropriate way of dealing with the matter is to reduce the sentence to a notional determinate sentence of 10 years' imprisonment.  The consequence will be that as far as the offences of manslaughter are concerned, the sentence is one of imprisonment for public protection.  The period before he will be considered for parole will be one of 5 years' imprisonment, less the period that he has spent in custody.  We have, because of the structure of the 2003 Act, to impose a separate sentence in relation to the offence of inflicting grievous bodily harm because, having concluded that he is dangerous, we are bound to impose an extended sentence in respect of that offence.  We do so on the basis that that is the statutory consequence, but in the expectation that it will have absolutely no practical significance whatsoever.  The period in relation to count 2 on the indictment will be that he will be sentenced to 2 years' imprisonment with an extension period, because it is of no importance, of one day.
23.	As far as the other sentences are concerned, we do not interfere with those sentences.  They will remain as before to be served concurrently, as is the extended sentence, with the sentence imposed under count 1.
24.	Turning to the offender Richards, the offender Richards undoubtedly falls into a different category in that he did not become directly involved in the violence which resulted in the death or the injury to the two victims of the offender Botchett's violence.  Nonetheless he was there.  He took no steps to interfere to prevent either attack, and he quite rightly by his plea accepted the responsibility which is the consequence of his, in effect, inaction at that time.
25.	We take the view that, as a result, his responsibility for the death was not in the same league as that of the offender Botchett.  Nonetheless, the fact that he was involved at a time when he was also involved in the criminal activity together with the offender Botchett means that a substantial sentence of imprisonment was undoubtedly necessary to mark this particular criminal enterprise.  The public would not, it seems to us, consider it appropriate for a sentence in such cases of 4 years' imprisonment in total properly reflects the need to deter offenders in such circumstances.  Taking the three offences together, we consider that a total sentence of 6 years' imprisonment would be appropriate, taking into account the plea of guilty.  He, like the offender Botchett, did not provide a defence statement until after the final time limit in March had expired.  Even taking into account the fact that he was entitled to some extent to see what the position was in relation to the offender Botchett, he nonetheless, in our judgment, cannot be given full credit as the judge gave him in this case.  In those circumstances, we consider that the right sentence is one of 6 years' imprisonment for the manslaughter, with the two sentences for attempted burglary and burglary remaining the same, to be served concurrently with the sentence for manslaughter.  The total sentence on him, accordingly, will be one of 6 years' imprisonment.  
26.	As far as he is concerned, obviously the same consideration in terms of days.  
27.	MR MEEKE:  Three hundred and twenty days.  Your Lordships have directed that whatever he has served will be deducted.
28.	LORD JUSTICE LATHAM:  Unfortunately we cannot say that as part of the order.  An actual number of days has to be imposed.  
29.	MR MEEKE:  There is a significant difference (inaudible) I am before your Lordships -- 328 days.   
30.	LORD JUSTICE LATHAM:  Is there any other matter that arises in relation to that case before we -- 
31.	MR EVANS:  Just one matter, my Lords.  My learned friend, Mr Jafferjee, says he thinks that Botchett may have served longer than that period.  It is something like -- I am afraid I do not have the instructions. 
32.	MR JAFFERJEE:  My maths might be terribly wrong.  
33.	LORD JUSTICE LATHAM:  Although the order has to identify the number of days, provided that that number of days is agreed, I hope, and provided to the court before the order is drawn up, I do not think we need trouble you to do anything other than inform the associate of that.  Thank you very much.