Total sentences of six years for conspiracy to rob and manslaughter were unduly lenient given the conduct of the defendants, the extremely serious nature of the offences and the fear caused to the victim by making threats to kill his child.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. In August 2002 at the Central Criminal Court before HH Judge Barker QC the defendants ('B' and 'F') were convicted of conspiracy to rob, making threats to kill and manslaughter. On 6 September 2002 B and F were sentenced to four years for the conspiracy, two years for making threats to kill and six years for manslaughter to run concurrently with each other. A co-accused ('J') was convicted of conspiracy to rob and sentenced to two years' imprisonment. On 31 August 2001 B, F and J, together with a third man, went to the victim's ('V') twelfth floor flat. J, a woman, was recruited by F to trick V into opening the door so they could rob him of his car. V was at home with his three-year old daughter and a friend ('H'). J knocked and H answered the door. J then beckoned to the others and they entered the flat. One had a knife and one had a claw hammer. H ran to the kitchen to call the police, and grabbed a knife. V ran to the bedroom where his daughter was. H was prevented from entering. He heard the intruders threaten to kill V's daughter if he did not hand over money and car keys. V told them that if they did not leave his daughter alone he would get out of the window. Someone shouted "shoot him, shoot him". V got out of the window and hung by his fingertips from the window ledge. H managed to get into the bedroom. He saw a man with a knife holding the child by her waist. H was told to drop the knife or the child would be stabbed. The intruders ran off and left the girl outside the flat. The police arrived and passed the intruders on the stairs and were misled by them as to which floor to go to. By the time they reached the flat V had fallen and died. B and F were subsequently arrested. In interview, and at trial, F said that V had owed him ?40, and when he did not repay it, friends had suggested going to get it. He denied being armed, picking up the child, or demanding the car keys. B denied being present. The Attorney-General referred the sentence as unduly lenient given the aggravating factors that: (i) there was a pre-meditated plan to get into V's flat by deceit or force, in order to take his car from him; (ii) three men had acted in concert; (iii) potentially lethal weapons were used; (iv) they contemplated not just the threat but the use of violence; (v) the defendants held V's daughter and made threats that caused V to go through the window; (vi) when V was hanging from the window ledge no assistance or help was offered, the only thought was to escape and the police were misled; and (vii) subsequently, neither of the defendants had shown remorse for V's death. The mitigating factor was that neither B nor F intended to cause death. In addition, B was of previous good character. The Attorney-General relied on Attorney-General's References (No.19, No.20 and No.21 of 2001) sub nom R v Byrne & Ors (2002) 1 CAR(S) 136 where Kay LJ identified the material factors to consider when determining a sentence for manslaughter for offences of a similar nature. F contended that: (a) the judge was experienced and well placed to assess his conduct; (b) the facts could be distinguished from R v Byrne (supra), in that it was not a case of robbery of an unknown, innocent person but arose because of the debt, and because there was no direct violence on V; and (c) . B also sought to distinguish the case from R v Byrne, arguing that threats to a small child were less serious than actual violence to an adult. He further contended that there was no direct violence or contemplation and foreseeability leading to death.HELD: (1) The offences were extremely serious. The important factors were that there were three male invaders, armed with at least one weapon. The threats made more than once to the child were despicable and understandably induced an intense fear in V. It could not be accepted that it was less serious to threaten a child than to cause actual violence to an adult. The threats continued after V had become suspended from the window ledge. F and B gave no assistance and even misled the police. (2) The sentences passed were unduly lenient. In R v Byrne, Kay LJ spoke of the need for longer sentences if the conduct was particularly reprehensible and in the light of the particular public concern over the carrying of knives. The correct sentence after trial for the offence of manslaughter in these circumstances should have been between ten and twelve years. For conspiracy to rob the sentence should have been at least seven years. (3) Taking into account the principle of double jeopardy, sentences of nine years for manslaughter and six years for conspiracy to rob would be substituted for the sentences passed. The sentences would run concurrent with each other and, with the two years for making threats to kill, would make a total of nine years' imprisonment.Leave to refer sentence granted. Application granted.

[2003] EWCA Crim 968