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In Barrass [2011] EWCA Crim 2629 the court sentenced the defendant for an offence of manslaughter. The appellant was the brother and carer of his 58-year-old sister who shared a house with him and who is the deceased in this case. She suffered from a mild learning disability and a low IQ. She was diabetic, grossly obese and suffered from panic attacks relating to travel, agoraphobia and inability to care for herself. She also suffered from hypertension and poor vision.

On the afternoon of 9th February 2010, Barrass called the emergency services and when they arrived at the house at about 4.45 pm, they found the sister lying on the floor in an upstairs bedroom in a state of profound squalor. He told the paramedics that she had been lying there for about two-and-a-half weeks following a fall. During that period the temperatures had been very cold and the house had limited heating facilities. There was no central heating, no water supply and although there were two electrical heaters only one was working and that was downstairs. The bedroom was cold and she was scantily clad in a nightgown, on wooden floorboards, covered in excrement and urine. She was barely conscious. Her toes and feet were gangrenous and there were pressure sores down her left side. On arrival at hospital her core temperature was 27 C which was 10 degrees below normal. She suffered a number of cardiac arrests in hospital but died in the early hours of the following day, primarily from hypothermia.

Barrass was the only person who could have alerted the authorities to her condition and he had been grossly negligent in failing to provide for her basic needs of care, warmth and clothing and to summon assistance when her condition deteriorated.

As the judge was to remark in his sentencing remarks, the appellant must have entered her room every day because he had provided food to her, but the only other care he had given her, until calling for the emergency services when it was too late, was to reposition her television set.

A psychiatric report was available to the court, which the sentencing judge summarised in this way:

“It is your upbringing which provides additional and significant mitigation. Professor Grubin attempts to explain these unusual events in a persuasive psychiatric report. You were not suffering from any medical condition at the time of the offence, there was no abnormality of cognitive functioning. I accept that as the Professor opines you grew up in a grossly abnormal family, your brothers left home and after your mother died aged 84 you found yourself in the position of carer of your sister forced upon you. Because of the abnormality of your upbringing, and despite having access to normal homes through your circle of friends, you were unable to comprehend the abnormal state of your own home. I am satisfied that your ability to respond to your sister’s obvious needs as a normal person would have done was thus impaired and this makes a significant impact on your culpability and on the length of the sentence. You pleaded guilty at the first reasonable opportunity and you will be given full credit for that plea.”

Barrass appealed against a sentence of 2 years and 8 months imprisonment (late plea), a primary ground of appeal was that Appleby and others [2009] EWCA Crim. 2693, cases concerned with so called single-punch manslaughter and other unlawful violent acts, did not apply to other cases of manslaughter.

The sentencing judge had directed his mind to Appleby, and said that:

“In R v Appleby and others, the Court of Appeal emphasised the need to give special attention to the consequences of the crime of manslaughter. The other authorities cited provide only limited assistance and I cannot accept that the sentencing bracket post Appleby is as low as Mr Robert Smith QC has submitted, 12 to 18 months after an early plea.”

Appleby, and other similar cases reflects parliaments intention as enacted in section 143(1) CJA 2003 that harm caused or intended should be reflected when judging seriousness:

“In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused.”

Appleby can therefore be said to emphasise a ‘step change’ when sentencing manslaughter cases.

So, does Appleby, concerned as it was with unlawful act manslaughter, apply more generally? The court held that it does:

“Appleby we consider has created a situation in which there has now been a step change in the tariff of sentencing in such cases, each of which of course ultimately rests on its own particular facts, but in general by reference to a proper consideration of the consequences of the offence, in cases such as these of course the fatal consequences of the offence. In our judgment, although the appellant had substantial mitigation, as the judge rightly said and it was plain that he took full account of it, nevertheless there was also substantial aggravation. The appellant knew of the suffering of his sister for some two-and-a-half weeks before he finally called for the attention of the public services, but only at the point of her death. He could see for himself the awful situation of his sister and her suffering can well be understood. He had gone into her room each day to feed her, which showed his understanding of the need to take some care of her. Although he was prepared to live in squalor himself, he was otherwise well able to care for himself and regularly left the home to visit his friends who lived in normal housing and Professor Grubin himself remarked, even if Mr Patton has raised a question about it, that “his self care was good and he was not reclusive.” Nevertheless, he was indifferent to the squalor in which he lived. That did not mean, nevertheless, that he was or ought to be regarded as being excused for indifference to the pain and suffering and ultimately fatal condition in which his sister lay for several weeks.

Bearing all these matters in mind, both the seriously aggravating features and the substantial mitigation which the judge took into account; bearing in mind the appellant’s entitlement to full credit for his plea and of course for the fact that at the end of the day (but too late) he did wake up to the need and to his obligation to call for assistance for his sister; and bearing in mind what we have described as the step change which the 2003 Act and Appleby, drawing attention to section 143(1), has brought about in cases of manslaughter, both unlawful act manslaughter and gross negligence manslaughter, we consider that there is no call to revisit the sentencing judgment of the judge. We are unable to say that his sentence of two years and eight months is manifestly excessive and we dismiss this appeal.”

This view is consistent with Attorney General’s Reference (No 125 of 2010) [2011] EWCA Crim 640, a case concerning the manslaughter of a baby.

The sentencing judge had distinguished Appleby when sentencing the offender as the facts differed (not violence in the street, but violence against a baby at home). The court rejected this approach and held:

“In the context of the reference to Appleby, we understand from counsel that Royce J suggested that Appleby was a very different case to the present. In the context of the facts, that is right. Appleby was concerned with manslaughter in the context of violence in the streets — in other words, public disorder. This is a case of manslaughter following some violence in the privacy of the home. The victim was a baby. The victims in Appleby and the other group of cases were adults going about their business in the streets. There are huge factual differences; but the approach suggested in Wood and Appleby, and summarised in Burridge, is common to all cases of manslaughter, however they may arise and whatever their factual circumstances. To that extent, therefore, we disagree with Royce J’s view that Appleby did not have an application to a case of this kind: manslaughter of a child at home. The earlier decisions which he considered have been deprived of any significant continuing weight.”

This approach should come as no surprise given that the Court of Appeal expressed the same view in Burridge [2010] EWCA Crim 2847.

Andrew Keogh, Solicitor

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