R v Brown [2011] EWCA Crim 2796;

[2012] 2 Cr App R (S) 27; [2012] Crim LR 223

MANSLAUGHTER, DIMINISHED RESPONSIBILITY, SENTENCE, CONSECUTIVE SENTENCE, MITIGATING CIRCUMSTANCES, AGGRAVATING CIRCUMSTANCES

Facts

The appellant, Brown was married to the victim and they had two children. The couple was undergoing a divorce. Brown had contact with the children over the weekend. He hid a hammer in one of the children’s bags. Upon returning them to their mother, he killed her with the hammer, while the children were in another room. The children saw him putting their mother’s body in his car. He then left the children at his house and buried the body in a remote place. Following the arrest, psychiatric evidence was produced that Brown had an adjustment syndrome which impaired his ability to exercise self-control at the time of the killing and disposal of the body. The jury acquitted Brown of murder and convicted him of diminished responsibility manslaughter. The judge sentenced him to 24 years imprisonment and a consecutive sentence of 2 years for impairing a coroner in exercising their duty because although the responsibility of the defendant was diminished, it was substantial. Brown appealed on grounds that the opinion of the jury was ignored and insufficient allowance for his diminished responsibility was made by the judge.

Issue

(1) Is the issue of whether the responsibility of the defendant although diminished, was substantial, relevant when sentencing him?

(2) Should arithmetical expression of diminished responsibility be given when sentencing the defendant?

Held

(1) The judge was entitled to direct the jury to consider the substantiality of responsibility as the substitution of s. 2(1) Homicide Act 1957 with s. 52(1) Coroners and Justice Act 2009 did not change the test applied by the courts.

(2) The judge was not obliged to set an arithmetical computation of the sentence which would have been passed for murder when applying R v Wood [2008] EWCA Crim 1305. However, this is a useful approach as it identifies the aggravating and mitigating features of the offence.

(3) The sentence is to be fact-based as it was. The consecutive sentence was probably inappropriate, but the total sentence given the mitigating circumstances of Brown’s diminished responsibility and the many aggravating circumstances, was not excessive.

The appeal was dismissed.