Daly & Anor, R. v

Factual and Procedural Background

The Court of Appeal (Criminal Division) considered two sentence challenges arising from the same incident. The Applicant had been convicted of manslaughter, robbery and possession of a bladed article, while the Appellant had been convicted of robbery but acquitted of murder and manslaughter. [1][2][3][4][5]

The offences arose after the Applicant, the Appellant and a co-defendant confronted the deceased during a dispute concerning an electric bicycle. The co-defendant stabbed the deceased during the ensuing pursuit, causing his death. [6][7][8][9]

The Applicant received an extended sentence of 13 years, comprising ten years’ custody and three years’ extended licence. The Appellant received six years and six months’ detention in a young offender institution. [10]

The Applicant renewed his application for leave to appeal against sentence, and the Appellant appealed against sentence by leave of the single judge. The matters were heard together. [1][2]

Legal Issues Presented

1. Whether the sentencing judge was entitled to find that the Applicant was dangerous and impose an extended sentence, despite alleged deficiencies in the pre-sentence report. [11][12][13]
2. Whether the Applicant’s sentence was technically unlawful because the sentencing record used “detention” rather than “imprisonment”. [14][15]
3. Whether the Appellant’s robbery should have been categorised as involving category 2 rather than category 1 harm, given his acquittals for murder and manslaughter. [16][17]
4. Whether the Appellant’s sentence was manifestly excessive or wrong in principle. [18][19][20]

Arguments of the Parties

Applicant’s Arguments

• The Applicant did not challenge the ten-year custodial term, but challenged the finding of dangerousness and the resulting extended supervision period. [11]
• The pre-sentence report did not specifically address dangerousness and contained inaccuracies concerning the co-defendants, the Applicant’s conduct and his departure from the scene. [11]
• The report failed to reflect that the Applicant did not inflict the injuries and stopped pursuing the deceased after seeing the stabbing. [11]

Appellant’s Arguments

• Although the Appellant knew knives were present, his acquittals for murder and manslaughter showed that he did not intend physical harm to the deceased. [16]
• The harm category should therefore have been level 2, producing a five-year starting point rather than the eight-year starting point applied for category 1 harm. [16]
• It was accepted that culpability was category A because knives had been produced to threaten violence. [16]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court agreed that the deficiencies in the Applicant’s pre-sentence report did not undermine the finding of dangerousness. The report contained broadly correct information and assessed the Applicant as posing a high risk of serious harm to adult members of the public, particularly when possessing a knife. [21][12]

The Court held that a risk assessment in the pre-sentence report was not an essential prerequisite to finding dangerousness. The sentencing judge also had an intermediary’s report, a psychologist’s report and direct knowledge of the evidence from presiding over the trial. [22][23]

The Applicant’s participation in a spontaneous armed pursuit arising from a dispute over an electric bicycle, culminating in the deceased’s death, independently provided a sufficient factual basis for the dangerousness conclusion. The Court considered that the statutory wording required consideration of the index offence and that the conclusion was properly open to the sentencing judge. [24][13]

The Court identified a technical defect because the Applicant, who was aged 21 at sentence, should have received a sentence of imprisonment rather than detention. It directed amendment of the Crown Court record and custodial warrant, but concluded that the defect did not require the appeal process to be reopened. [14][15]

Regarding the Appellant, the Court considered the guideline’s reference to harm “caused, risked or intended”. Actual harm was relevant even if the Appellant did not intend physical injury. Ignoring the deceased’s death, which occurred during the robbery, would have been artificial. [25][26]

The Court nevertheless recognised the jury’s verdicts and the Appellant’s individual role. It concluded that the sentencing judge’s approach remained consistent with those verdicts and that, even if a lower starting point had been used, an upward movement within the applicable range could have produced the same sentence. [26][27][19]

Holding and Implications

The Applicant’s renewed application for leave to appeal was refused. The finding of dangerousness and the extended sentence were upheld, subject to correction of the record so that the sentence was recorded as imprisonment rather than detention. [13][15]

The Appellant’s appeal against sentence was dismissed. The six-year-and-six-month sentence was not manifestly excessive or wrong in principle. [20][28]

The direct consequence was correction of the Applicant’s sentencing documentation and preservation of both sentences. The decision did not state that it established a new precedent. [15][28]