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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Birt, R v [2010] EWCA Crim 2823 (17 November 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/2823.html Cite as: [2011] 2 Cr App Rep (S) 14, [2011] 2 Cr App R (S) 14, [2011] Crim LR 248, [2010] EWCA Crim 2823

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 17th November 2010

1. LORD JUSTICE JACKSON:
2. This is an appeal against sentence by a young woman who has been convicted of manslaughter.
3. The facts giving rise to this appeal are as follows. The appellant, Rebecca Birt, was living with her boyfriend, Shaun Beatty, in a house in Manchester. On the evening of 30th August 2009 an acquaintance of theirs called Shaun Fitton visited, bearing two bottles of vodka. Mr Fitton made inappropriate sexual suggestions to the appellant. Shaun Beatty, who was a trained boxer, punched Shaun Fitton and rendered him incapable. Beatty then dragged Shaun Fitton outside, left him there for a period and brought him back inside. Shaun Fitton was in a very poor state.
4. Owen Skeat, a friend of Shaun Fitton, was contacted and asked to come over. Skeat, instead of helping Shaun Fitton, started punching him until he fell. After that Beatty, Skeat and the appellant embarked on an utterly disgraceful course of conduct. They removed Shaun Fitton's clothes and painted his whole body with gloss paint. After that the appellant took a camera and said to the two young men: "Go on, do it now". Beatty and Skeat then took a mop handle and pushed it up Shaun Fitton's rectum. Beatty and Skeat repeated this horrific act 15 times and the mop handle went deep in Shaun Fitton's body. The appellant filmed the incident even using the zoom lens to capture details. After that Beatty and Skeat took Shaun Fitton outside. They put him in a wheelie bin, wheeled it out to the road and deposited him there. A neighbour saw this last episode and rang the police. The emergency services attended. Shaun Fitton was taken to hospital where he died from his injuries.
5. Beatty, Skeat and the appellant were charged with murder and remanded in custody. On 14th December 2009 the appellant offered to plead guilty to manslaughter, but that offer was rejected by the prosecution. The appellant and her two co-defendants stood trial for murder at the Liverpool Crown Court in March 2009. On 29th March the jury found Beatty and Skeat guilty of murder. The jury found the appellant not guilty of murder but guilty of manslaughter.
6. Henriques J, the trial judge, sentenced Beatty and Skeat to life imprisonment, each with a minimum term of 23 years. He sentenced the appellant to a term of 9 years imprisonment. The judge gave no credit to the appellant for her earlier offer to plead guilty.
7. In relation to this matter, the judge said as follows:

"It is said that some credit should be given for the fact that manslaughter would have been offered at an earlier stage but it was not acceptable to the Crown and unless pleas to murder were tendered by others. There was no reason why you should not have pleaded guilty to manslaughter but not guilty to murder. At no stage was a plea of guilty tendered to court. I have been referred to the case of Bertram. The facts in that case were different. A plea to manslaughter would have left the defendant with no defence to murder. On the present facts, had you wished for credit for a plea of guilty, then you should have pleaded guilty."

8. The appellant now appeals to this court against sentence on a single ground. That ground is that she should have received some discount by reason of her earlier offer to plead guilty. It is said that the judge erred in giving no credit on that account. No criticism is made of the 9 year sentence, apart from the judge's failure to give what is said to be appropriate credit for the earlier offer.
9. In support of this ground of appeal Mr Treble, the appellant's counsel, relies upon Attorney-General's References Nos 33 and 34 of 2001 [2002] 1 Cr App R(S) 92; [2001] EWCA Crim 1908 and R v Bertram [2003] EWCA Crim 2026. In Attorney-General's References Nos 33 and 34 of 2001 the Attorney-General sought leave to refer to the Court of Appeal two sentences of five-and-a-half years imprisonment for manslaughter, which were said to be unduly lenient. The applications failed. One mitigating factor which weighed in the offenders' favour was that they had offered to plead guilty to manslaughter, but the prosecution had rejected that offer and pressed on with the charge of murder. In that case it appears that it was reasonable for the offenders not to renew their plea of guilty to manslaughter before the jury. There was a serious causation issue which turned upon medical evidence. Furthermore, the Attorney-General conceded that the offenders should have credit for their earlier offer to plead guilty even though that plea had not been renewed before the jury. The Attorney-General's concession is recorded in paragraph 16 of the judgment.
10. In the case of Bertram the appellant killed a man in the car park outside a public house with a pickaxe handle. His defence at trial was (a) that he had acted in defence of his wife and (b) lack of intent. The jury rejected that defence. The jury found the appellant not guilty of murder but guilty of manslaughter. The basis of the verdict was that the defendant had intended to cause the victim some harm but not really serious bodily harm. The judge imposed a sentence of 7 years imprisonment, giving no credit for an earlier offer to plead guilty to manslaughter.
11. The Court of Appeal allowed the appellant's appeal on the fourth ground advanced, namely credit for offer of plea, and reduced the appellant's sentence to 5 years. Giving the judgment of the court, Fulford J said this:

"17. Finally turning to ground 4, it is argued the learned judge gave insufficient regard to the fact that an offer of a plea of guilty to manslaughter, prior to the commencement of the trial had been rejected. Since, the defences advanced by the appellant to murder applied equally to manslaughter (defence of another and lack of intent) it was unrealistic, in those circumstances, to expect the appellant to plead guilty to manslaughter, when he was about to be tried on the charge of murder, when these matters were to be the issues in the case. It is submitted, therefore, that the learned judge was unreasonably critical of the appellant for not tendering a plea before the jury and for showing no remorse.

....

28. However, on ground 4, we accept the argument that the appellant should have been accorded some credit for the plea of guilty to manslaughter that he offered at the beginning of the trial. Once that offer had been rejected, and given he was therefore about to be tried for murder when, as we say, the defences to murder and manslaughter except as regards provocation, were in this case the same, it was unrealistic to expect him to plead guilty at the commencement of the trial to manslaughter.

29. The learned judge said, in passing sentence:

'Having fought the case and said in evidence that you did nothing wrong - your case being that you were acting in reasonable defence of your wife and children - it follows that there is no credit available to you.'

30. The case of the Attorney-General's References Nos 33 and 34 of 2001 [2002] 1 Cr App R(S) 92; [2001] EWCA Crim 1908 is authority for the proposition that the court should have regard to such an offer in the defendant's favour when passing sentence. It will all depend on the circumstances of the case, as to what level of credit should be given. Sometimes it will only be slight, but in cases such as the present, where the appellant offered to plead guilty to the offence that he was eventually convicted on and there were good reasons for not entering a plea to that charge, then the credit given will be more significant."

12. The case of R v Knowles [2008] EWCA Crim 2647 has also been drawn to our attention as a relevant authority. In Knowles the appellant was charged with murder. He offered to plead guilty to manslaughter on the basis of provocation. The prosecution rejected that offer. At trial the appellant pleaded not guilty on the basis of self-defence. The jury failed to agree. The matter was adjourned for a retrial. At or before the start of the retrial the appellant offered (a) to plead guilty to manslaughter because of provocation and (b) to plead guilty to another count of wounding with intent. Those pleas were accepted. The judge in passing sentence gave a discount of 15 per cent from the sentence because of the pleas of guilty. The Court of Appeal dismissed the appellant's appeal. Hallett LJ, giving the judgment of the court, said this:

"21... Having been properly advised, this appellant decided to contest his guilt on both charges. He fought them on the issue of self­defence. He was trying to secure a complete acquittal. Any dispute about provocation did not affect his ability to enter a plea of guilty to manslaughter, and to wounding with intent, at the earliest opportunity. Had he done so he might well have deserved substantially more than the 15 per cent discount accorded to him by the judge. He must have been aware of the consequences of failing to do so and he must, therefore, accept those consequences. In our judgment the judge was perfectly entitled to restrict the amount of credit available to 15 per cent."

13. 1The conclusion which we draw from the authorities cited is as follows. If in a homicide case (a) the defendant offers to plead guilty to manslaughter, (b) that offer is rejected by the prosecution, (c) the defendant pleads not guilty to any offence before the jury and (d) the defendant is ultimately convicted of manslaughter, then it is a matter for the discretion of the judge whether to give any and, if so, what credit for the earlier offer of a plea. That discretion must be exercised according to the circumstances of the case. If there was good reason for the defendant not to renew his plea of guilty before the jury then, generally, some credit should be given for the earlier offer. If there was no good reason for the defendant's failure to renew his plea of guilty before the jury, then generally no credit should be given for the earlier offer.
14. After that review of authority, let us return to the present case. The appellant here had no viable defence to manslaughter. The conduct which the appellant encouraged and indeed filmed was bound to cause some injuries to the deceased. The appellant's defence to the charge of murder depended upon the proposition that the injuries which she must have foreseen did not amount to really serious bodily harm. That line of defence would not have been undermined by a plea of guilty to manslaughter.
15. The appellant, on advice, offered to plead guilty to manslaughter on 14th December 2009. That offer was rejected because, on any view, there was a serious issue as to whether the appellant was guilty of murder. In those circumstances there was no good reason for the appellant's failure to renew her plea of guilty to manslaughter before the jury.
16. In our judgment the appellant is not entitled to any of the possible discounts which the Sentencing Guidelines Council has set out in its Definitive Guideline "Reduction in Sentence for a Guilty Plea."
17. We therefore agree with the reasoning and the conclusion of the trial judge in relation to sentence. This appeal is dismissed.