Attorney General's Reference (No. 3 of 1999); R v B
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM |
| Judgment Date | 26 March 1999 |
| Neutral Citation | [1999] EWCA Crim J0326-22 |
| Judgment citation (vLex) | [1999] EWCA Crim J0326-1 |
| Docket Number | No: 990189/R2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 March 1999 |
[1999] EWCA Crim J0326-1
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Lord Justice Beldam
Mr Justice Butterfield and
Mr Justice Gray
No: 990189/R2
No. 3 of 1999
MR M DENNIS appeared on behalf of the Attorney-General
MR T MILFORD QC appeared on behalf of the Respondent
Friday 26th March 1999
The Attorney-General seeks leave to refer a sentence of 2 years' imprisonment suspended for 2 years, passed on Mr James Lynn, on 8th December 1998, at the Crown Court in Newcastle-upon-Tyne, as unduly lenient.
The sentence was passed by Smith J after Mr Lynn, who is 56 years of age, had pleaded guilty to manslaughter. The circumstances of the offence were that on Sunday 4th January 1998, he and his wife were at home in Guildford Square, Lynemouth, at about 10.15 pm when two young men, who had had far more to drink than was good for them, walked down the lane at the rear of the offender's house.
His wife's car was parked in the lane. One of the young men appeared to damage the car. Mrs Lynn protested to the men, who swore at her. Mr Lynn, becoming aware that his wife was involved in this altercation with the two men, went to a cupboard in the kitchen and armed himself with a hunting knife, which he took from its sheath. He and his wife then went out into the lane at the back and followed the two men down the lane; the two men turned to confront Mr Lynn.
One of them picked up a piece of timber, about 6
feet long, 4 x 4, and the other was carrying a bottle.
A fight ensued and it was accepted that it was initiated by the two young men. In the course of this fight, Mr Lynn was hit on the head with the piece of timber, which split the skin of his skull, and by a bottle, which fortunately did not cause serious injury. But he, for his part, took out the hunting knife, and stabbed at one of the men, Paul Dixon. He stabbed him three times with the knife. The fight ended. Paul Dixon was taken to hospital, but in spite of efforts to save him, he died at 11.00 pm.
A postmortem on the deceased showed that he had suffered a stab wound to the left side of the head, above the ear, which ended in a small depressed skull fracture. He had a stab wound to the upper chest, penetrating into the chest cavity, and ending in the upper lobe of the lung. There was a further stab wound to the right chest, but it had not penetrated into the chest cavity. There were other minor injures, but death was due to haemorrhage and shock due to the two major stab wounds in the chest.
Mr Lynn was arrested. Initially he made no mention initially of using the knife, but in a further interview, he stated that his wife had told him that two men had broken the wing mirror of her car, and threatened her with a piece of wood. He was near his back door. On seeing his wife threatened, he returned to the kitchen, armed himself with a knife, which he states he put in his back pocket. He then went into the back lane, and he said that he had knocked one of the men against the wall. He was hit repeatedly with the bottle, hit over the head with the piece of wood and he then went wild, lashing out with the knife. He was initially charged with the murder of Paul Dixon.
As previously stated, he pleaded guilty to manslaughter. The basis of his plea was that he had used the knife in self-defence, but he accepted that his use of the knife went beyond the degree of force which was reasonable or necessary. On that basis, it fell to
Smith J to sentence him on 9th December. After setting out the circumstances, as we have shortly described them, she said:
"I am satisfied, and indeed the Crown accept that it was the two youths who set upon the defendant first."
A witness, a spectator, believed that it was the defendant who was being beaten up by the two young men.
She had summoned the police. Smith J said that Mr Lynn had been struck with the bottle, that he was under attack from both these young men and that in the midst of the attack he took the knife from his pocket and lashed out wildly. She recorded Mr Lynn's genuine
remorse for what had happened. She took account of the basis on which he had pleaded guilty, and his excellent record. She had been provided with character references which showed that he was a man of integrity and generosity, and that he was not in any way aggressive.
She rightly said that passing sentence in a case of manslaughter posed one of the judge's most difficult tasks. She passed a sentence of 2 years' imprisonment, which she suspended for a period of 2 years.
The Attorney-General has asked leave to refer the sentence to this Court, on the grounds that it is unduly lenient, and we consider that he has made good his application that we should review this sentence.
We simply state that the use of a knife, in these circumstances, is the kind of offence which, even allowing for a plea of guilty and for mitigation, is usually deserving of a sentence of the order of 4 years.
Bearing in mind the exceptional circumstances in this case, it might have been reduced to a period of 3 years, but even, in the circumstances of this case, it should not have been reduced below a period of 3 years. It was not therefore a sentence which it was open to the learned judge to suspend.
Undoubtedly, the effect of his appearance before the Court, on himself, and on his family has been
dreadful for Mr Lynn. Events and incidents since his conviction have forced them to move away to a different part of the country. We have seen a medical report which indicates that this conviction has had a significant effect on his wife's health, which was not good in any event. Equally, however, the consequence for the deceased, Paul Dixon, and his family have been terrible.
Mr Milford QC, for the offender, emphasised the evidence tending to show that the deceased was a violent and aggressive young man; but the law regards all life as needing its protection. There are no circumstances which can justify a person, arming himself with an unsheathed knife and going out to confront those who have committed damage to his motorcar.
In our view, the judge's error in this case was to overlook the fact that this offender initially armed himself with the unsheathed knife, and had it upon him ready at hand, if necessary, before he went out to confront these two drunken youths. It was not a case, in our view, in which the circumstances could properly be confined to the events of the confrontation, or one in which the court could shut its eyes to those circumstances and focus solely on the events when the confrontation actually took place. In a case in which a knife was used, in somewhat similar circumstance, R v David Patrick Davies [1996] 1 Cr App R(S) 28, the appellant appealed against a sentence of 6 years' imprisonment, for manslaughter, by reason of provocation, in which he had stabbed a deceased in the course of a fight. A fight had broken out in a car park. The appellant had gone to the car and he had taken a knife when he had been thrown across the bonnet and punched and head-butted. It was a flick-knife and needed the blade to be exposed before it could be used.
He then stabbed the other person with the knife. The sentence of 6 years' imprisonment for that offence was reduced to a period of four-and-a-half years. Mr
Milford properly distinguished the circumstances of that case, as the conviction of manslaughter was based on provocation rather than excessive self-defence. But it is the observations of Lord Taylor CJ which are important, and have relevance to this case. He said:
"However, the use of a knife and particularly a flick knife which required a deliberate extrusion of the blade was something which deserved condign punishment."
As we have said, this sentence was unduly lenient. We think that the sentence at Newcastle should have been a sentence of 3 to 4 years. But we are conscious of the effects which this...
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