No. 2007/04351/A8
Neutral Citation Number: [2008] EWCA Crim 209
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday 22 January 2008

B e f o r e:

LORD  JUSTICE  HOOPER

MR  JUSTICE  SILBER

and

MR  JUSTICE  UNDERHILL

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R E G I N A

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LIAM  O'REILLY
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Mr R L Marks QC appeared on behalf of the Appellant

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Judgment

LORD JUSTICE HOOPER:  I will ask Mr Justice Silber to give the judgment of the court.

MR JUSTICE SILBER:
1.  Liam Paul O'Reilly appeals with the leave of the single judge against a sentence of nine years' detention in a young offender institution which was imposed on him in the Crown Court at Liverpool on 13 July 2007.  He had previously pleaded guilty on re‑arraignment to a count of manslaughter.  
 
2.  The background is that the victim of the offence, Phillip Campbell, was the partner of the appellant's elder sister.  The appellant's co‑accused was his uncle.  The relationship between Phillip Campbell and the appellant's sister had been both violent and tempestuous.  There had been complaints that he had been violent towards her on a number of occasions in the past and that he had attacked her with knives as well as assaulting her and her 3 year old son.  There was, for example, an allegation that on 1 January 2007 Phillip Campbell had put his arms around the throat of the appellant's sister.  
 
3.  The events which gave rise to this charge occurred on 10 January 2007 when the appellant's sister, her son and Phillip Campbell were visiting a friend, Andrew Abley.  Phillip Campbell refused to give the appellant's sister the key to their.  He slapped her hard on the face, punched her and kicked her.  At some stage he used a kitchen knife to stab the appellant's sister in the thigh.  At this point Andrew Abley ran to the home of the appellant's uncle and he told the appellant that "Francine's getting battered, you had better get round there".  Both the appellant and the co‑accused went to Andrew Abley's house.  The appellant shouted at Phillip Campbell, "Get outside, Phil".  The appellant's sister told the police that Phillip Campbell was known to have used knives in the past.  The judge assumed (and we will do likewise) that the appellant had not taken a knife to the house of Andrew Abley, but that he had picked one up there.  
 
4.  A time came when Phillip Campbell ran out of the back door.  He was pursued by the appellant and his uncle through the back gardens of neighbouring houses.  They eventually caught up with him.  Neighbours heard a man shouting "And don't you come near my fucking sister again".  The appellant at that point must have stabbed Campbell because when the police arrived they found that Campbell was already dead in the garden.  The cause of his death was multiple stab wounds.  He had received eight wounds, of which six were to the abdomen, and two to the face.  One had entered the chest and penetrated his heart.  There was also a stab wound to the left, the right, the front and the back of his body.  His internal organs had been penetrated.  Two of the wounds had fractured his ribs.  The opinion of the pathologist was that the wounds would require considerable force.  There were also bruising and abrasions which were consistent with the application of force by way of impact with a heavy staircase post.  
 
5.  Searches were made by the police.  They found a knife with Campbell.  In a nearby grid they found the weapon that had been used to inflict the fatal wound.
 
6.  Two days later the appellant and his uncle surrendered to the police.  
 
7.  The appellant was born on 16 August 1988.  He was therefore 18 years of age at the time of the offence.  He had a number of minor convictions, but he had never previously served a custodial sentence.  On 31 May 2001 he was convicted of common assault.  On 11 October 2005 he was convicted of battery, for which he received a supervision order.  
 
8.  The pre‑sentence report noted that the appellant had expressed remorse.  
 
9.  In sentencing the appellant the judge took account of the age of the appellant, his record and the fact that in this case the provocation was, on any view, substantial.  The ground of appeal is that the sentence was manifestly excessive.
 
10.  In our view the judge must have adopted too high a starting point.  As the judge pointed out, this was a case of substantial provocation.  This is not a case where the appellant had deliberately gone out with a weapon and used it to cause the death of the victim.  There is no reference in the transcript of the prosecution opening or the judge's sentencing remarks to the guidelines issued by the Sentencing Guidelines Council for manslaughter by reason of provocation.  These guidelines apply to anybody who was convicted after 28 November 2005.  They are therefore applicable to this case.  
 
11.  The guidelines refer to three classes of provocation: a low degree, a substantial degree and a high degree.  The judge took the view that this a substantial degree of provocation.  We agree with that.  This was not a case of a high degree of provocation, bearing in mind that the appellant and his co‑accused were chasing the victim rather than being chased by him.  The starting point for those cases is eight years' custody.  The aggravating feature in this case was the substantial number of stab wounds that were inflicted and which we have described.  On the other hand there are mitigating factors: the appellant's age, the fact that he had shown remorse, and there was an anticipated fear of violence from the victim.  In our view on the particular facts of this case the aggravating and mitigating factors balance themselves out.  
 
12.  We have concluded that in the circumstances of this case we can agree with the submissions of Mr Marks QC for the appellant that there should be a 25 per cent reduction on account of the guilty plea.  Therefore that reduces the sentence to six years' detention in a young offender institution.  To that extent the appeal is allowed.  

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