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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Prajapati, R. v [2024] EWCA Crim 464 (19 April 2024) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2024/464.html Cite as: [2024] EWCA Crim 464 |
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CRIMINAL DIVISION
ATTORNEY GENERAL'S REFERENCE
UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988
The Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE JAY
THE RECORDER OF NORTHAMPTON
(His Honour Judge Mayo)
(Sitting as a Judge of the Court of Appeal Criminal Division)
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R E X |
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KRUNAL PRAJAPATI |
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Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
Mr J C Dawes KC appeared on behalf of the Offender
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Crown Copyright ©
Friday 19th March 2024
LORD JUSTICE SINGH:
Introduction
The Facts
"Investigations … indicated a skull fracture and catastrophic hypoxic-ischaemic brain injury. Post-mortem tests and examinations of ribs, skull, eyes and brain showed all the classic signs of a severe shaking injury. … in addition to the 47 front and back rib fractures and the metaphyseal fractures of arms and legs consistent with gripping and violent shaking, Hazel's head had clearly received two separate blunt force injuries – one causing a complex comminuted fracture on her left side from a point above her ear up over the top of her head and another causing a deep, long bruise further forward on her left forehead. There was also a separate spiral fracture of Hazel's left leg consistent with it being gripped in two hands, twisted and pulled, entirely breaking her tibia. All of these injuries, according to the expert paediatrician, would have been intensely painful to Hazel."
The Procedural History
The Sentencing Process
The Judge's Sentencing Remarks
"Taking account of all the various injuries which I am sure you did inflict on your daughter that night, I am quite satisfied that your culpability falls into category B of the sentencing guideline where there is a starting point of 12 years, range eight to 16. The jury acquitted you of an intent to kill or to cause grievous bodily harm, but bearing in mind the nature of the injuries which must have been caused separately from the shaking – the skull fracture, the forehead impact and the spiral fracture to her leg – I conclude that Hazel's death was caused in the course of an unlawful act which involved an intention, albeit in the moment only, to cause harm falling just short of grievous bodily harm. I am also satisfied that your act in shaking your daughter, resulting as it did in 47 rib fractures and the metaphyseal fractures to all her limbs, in addition to the extent of the widespread hypoxic injury and severe damage to both eyes, is properly characterised as an unlawful act which carried a high risk of death or grievous bodily harm which was or ought to have been obvious to you. The undisputed expert evidence at trial was that severe force must have been used to cause such serious shaking injuries."
The Sentencing Guidelines
The Submissions on behalf of the Solicitor General
The Submissions on behalf of the Offender
Our Assessment
"1. The judge at first instance is particularly well placed to assess the weight to be given to competing factors in considering sentence.
2. A sentence is only unduly lenient where it falls outside the range of sentences which the judge at first instance might reasonably consider appropriate.
3. Leave to refer a sentence should only be granted by this court in exceptional circumstances and not in borderline cases.
4. Section 36 of the 1988 Act is designed to deal with cases where judges have fallen into 'gross error'.
…."
"V was a member of the Cornish-based motorcycle group called the Red Chiefs, who described themselves as a 'support club' of the Hell's Angels – an international 'outlaw' motorcycle organisation. BP, TP and CB were all members of the Plymouth-based branch of another international 'outlaw' motorcycle group called the Bandidos. CB was the President. The Red Chiefs and the Bandidos were rival groups. The wearing or flying of the group's 'colours' on the other's territory was regarded as insulting and provocative.
One evening, members of the Red Chiefs and Hell's Angels (both wearing their colours) had gathered at a retail park in Plymouth. Members of the Bandidos became aware. There was telephone contact resulting in TP, CB and BP becoming aware of the presence of the Red Chiefs. TP and CB drove towards Plymouth and attended where the Red Chiefs were. Most of the Red Chiefs drove away. However, V drove off in a different direction (that being the direction in which he lived). CB and TP pursued V, and were on the telephone to BP during the pursuit. BP then travelled to the scene. BP struck V's motorcycle causing V's body to [be thrown] upwards and onto the bonnet. The vehicle ran over the motorcycle and V fell underneath the vehicle and became trapped. BP continued to drive and after about 900 metres, V's body came free of the vehicle. V died from his injuries. The post-mortem examination revealed numerous injuries to the body and were in keeping with a prolonged period during which he was trapped/dragged along under the van. The cause of death was multiple injuries."
"However, despite the measure of our agreement with the judge, we are persuaded that he failed to adequately reflect BP's subjective intent and the objective high risk he created of GBH or death into the assessment of overall culpability. There is an overlap between these factors in this case [our emphasis], but these are not two sides of the same coin. Although the judge was not unreasonable, and we find he was right, to 'temper' what would otherwise be arguably the 'extreme' character of the objective risk by reason of the comparatively lesser subjective intent, we consider that the combination elevated the offence into the category of very high culpability. We are persuaded that this error did lead the judge to pass an unduly lenient sentence in respect of BP, and that we should exercise our discretion to re-sentence him for the offence of manslaughter."
"The characteristics set out below are indications of the level of culpability that may attach to the offender's conduct; the court should balance these characteristics to reach a fair assessment of the offender's overall culpability in the context of the circumstances of the offence. The court should avoid an overly mechanistic application of these factors."
Then, under the heading "A – Very high culpability", the guideline continues:
" Very high culpability may be indicated by:
- the extreme character of one or more culpability B factors and /or
- a combination of culpability B factors."
We emphasise that the bold font is in the original text as issued by the Sentencing Council, no doubt to reflect its desire to convey the importance of the word "may".