Manslaughter Sentence: A-G Refused Leave to Refer

Although the judges of the Criminal Division of the Court of Appeal were polite in the way that they did so, they refused leave for the Attorney General’s unmeritorious application to refer a sentence which she regarded as unduly lenient: Reference by the Attorney General under s36 Criminal Justice Act 1988 (R v Sam Joseph Pybus) [2021] EWCA Crim 1787 Lady Justices, Macur and Carr, Murray J

The 32 year old offender was a man of previous good character who pleaded guilty to the manslaughter of a young woman of approximately the same age and described as “a vulnerable individual”.

They met about six times a year for sex.  Despite that arrangement, the woman was also in another relationship which started about 18 months before her death.

The sexual activity in which the deceased engaged with the offender and with her then partner involved erotic asphyxiation.  Evidence in the court below which was independent of the offender, suggested her participation in that sexual practice was consensual and initiated by her.

On the day in question, after he had been drinking heavily, the offender went to the deceased’s flat where they continued drinking together.

Shortly before 5 am he walked into a police station saying he had choked the deceased and that he was unsure whether she was breathing.  Police officers discovered her unresponsive and she could not be resuscitated.

Once the cause of death was ascertained, a plea of guilty to manslaughter was tendered and accepted.

The Attorney General submitted that the error of the trial judge was to categorise the offender’s culpability as medium rather than high.

But in discussion she necessarily conceded that prosecution leading counsel in the court below agreed with the sentencing judge that there was a difference between an obvious risk and a high risk.

Whilst the more obvious the risk the easier it was to categorise it as high risk, a foreseeable risk was not necessarily a high risk.

The Attorney General specifically confirmed to the Court of Appeal that the focus of her submissions was on the period “post consciousness” and invited the Court to conclude on the evidence that there would have been a period thereafter, however brief, when the offender necessarily would have to continue to compress the deceased’s neck to lead to her death.

She submitted that after the deceased’s loss of consciousness the risk of death or serious harm raised exponentially and the high risk of death should have been obvious to the offender and the offence should have been categorised as one of high culpability.

There was no evidence that the offender intended to kill the deceased or cause her really serious harm.  Although the prosecution made clear it did not necessarily accept the narrative offered by the offender, the evidence of the pathologist was that this was towards the “lower end” of cases involving neck compression.

There were no other signs of violence and no known motive to indicate a murderous intention.  The judge accepted and confirmed the prosecution stance; the prosecution decision reflected the available evidence.

Giving the judgment of the Court, Lady Justice Macur said that based on the facts of this case, taking into account the available pathology evidence rather than what could only be the speculated mechanism of death which the Attorney General advanced, there was no demonstrable error of law which could be identified.

The judge’s assessment of the facts was neither irrational nor perverse.  There was no error in the judge taking a starting point of 6 years.

The judge addressed the aggravating features making clear the offender had obviously been inebriated so that he was unable to accurately recognise the degree of the sexual practice in which he and the deceased had engaged, that his victim was vulnerable and he had not sought assistance for her.

The Court paid tribute to the judge’s sentencing remarks which were delivered in measured fashion without sensationalising the consensual sexual practices which had been embarked upon by the offender and the deceased.

He identified the mitigation which the Attorney General realistically conceded: that there was no premeditation, there was genuine remorse and previous good character.  After full credit for the plea, the sentence was 4 years and 8 months.

The judge was not wrong in his categorisation of culpability or in the uplift he applied in relation to the aggravating features or the element of discount he gave for mitigation and for the offender’s plea of guilty.

This case was a tragedy for the young woman and everyone who loved her, but the Attorney General would better serve the public if she acted like a lawyer rather than a politician and explained to those affected, and the pressure group which unsuccessfully applied to intervene, that the judge applied the correct legal principles rather than embarking upon another populist-driven trip to the Court of Appeal.