Attorney General's Reference No. 09 OF 2005 [2005] EWCA Crim 812

Case No 200500423/A6[2005] EWCA Crim 812
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 17th March 2005
Strand
London, WC2
B E F O R E:
THE DEPUTY LORD CHIEF JUSTICE
(LORD JUSTICE JUDGE)
MRS JUSTICE HALLETT
SIR CHARLES MANTELL
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 09 OF 2005
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR H DAVIES appeared on behalf of the ATTORNEY GENERAL
MISS M LORAM appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE JUDGE:

This

[1]is a reference under section 36 of the Criminal Justice Act 1988 of a sentence imposed at Wolverhampton Crown Court by His Honour Judge Chapman on 20th December 2004.[2]The offender is Ali Uddin. He is 24 years old. He has previous convictions. He was charged with manslaughter, and after a trial before a jury, convicted on the day Judge Chapman sentenced him to 2 years' imprisonment.[3]The facts of this case can be taken very briefly. It was Wednesday 9th June, a summer evening, the deceased, Donald Hill, was walking home in Walsall. He had had six or seven pints of beer. He was 66 years old, a well built, physically fit man, popular in his locality, happily married. He was wearing spectacles and dentures. In a residential street, not far short of his home, two youths approached him. One of them was this offender, who was 24 on that day, and the other was a young man some 6 years younger, 18 years old. It is perfectly possible that the encounter was entirely chance. What then happened was seen by a number of people. Among those who saw the incident there were two 11 year old girls. It was, as we emphasise, a residential street. The deceased was punched, once, in his face. That blow caused him to fall backwards and he sustained a serious fracture of the skull which led to him becoming unconscious. He remained unconscious for a week, and he then died. The two youths who were involved ran away. It appears that the appellant returned twice to the scene that day before leaving the area. The judge sentenced the offender on the basis that he had wielded a single punch of moderate force, with no follow up and that, if the deceased had not consumed the drink he had taken, he may very well not have sustained the fatal fall.[4]The case proceeded as a trial. During the course of the trial the offender's claimed that he defended himself from the deceased, or from the belief that he was about to be attacked by the deceased. It is difficult to discern any motive for this incident. The judge expressed the view that the offender may possibly have acted on the basis of a misunderstanding with Mr Hill. In his own evidence the offender said that the deceased was walking towards him, saying words likely:
"Allah, Iraq, Afghanistan"
. He said that whatever was being said by the deceased made no sense to him:
"He came towards us saying I don't want no trouble."
When he was cross-examined the offender stated the deceased was drunk or mad:
"I was mystified by his behaviour."
The judge rejected any suggestion that Mr Hill had misconducted himself and, in particular, that he had been making any racist remarks. Such a suggestion would have run counter to everything that was known of Mr Hill's personality.[5]After the incident the offender fled Walsall. He travelled to London and, as we understand it, when he heard of the death of the deceased, he flew to Bangladesh. He returned to this country, again as we understand it, on the clear basis that he anticipated being arrested when he arrived here. That certainly is what happened.[6]When he did arrive, he was interviewed. He suggested that Mr Hill had been making the comments to which we have already referred and that, following an argument which developed from these comments, Mr Hill, the deceased, had punched him first, so that he hit him in self-defence. Thereafter he said that his co-defendant had kicked the deceased three times to the side of the head. Those assertions were false.[7]The judge was asked to consider that the remorse which the offender had shown, and was showing, was genuine. He expressed himself in very guarded terms on that topic. He said:
"I am prepared to accept that he genuinely regretted what had happened. Whether it is remorse for what he did, or whether it's remorse for the consequences of what he did, I am not sure we can really say."
The implication of those remarks is that the judge could not make up his mind whether this was true genuine remorse or simply remorse for the fact that the offender's behaviour had put him into the unpleasant position into which he had arrived.[8]The judge had a number of authorities drawn to his attention, by counsel for the offender and counsel for the Crown. The cases were: Coleman, Goodwin, Heslop, Majali, Keeney and Bryant. It was submitted that that would enable the judge to discern the appropriate level of sentence in cases of this kind. The judge himself said that he had also considered Hughes, Edwards and Rubi, adding that they were relatively old cases.[9]The judge did not have his attention drawn to a number of cases to which our attention has been drawn. They include in particular: Kime, Edwards, Attorney-General's No 100 of 2001 (R v Welsh) and Laszlo Hamar. In the course of the submissions to us, we have looked at yet further cases to which those cases made reference. So by the time we come to make our decision we have in mind a very large number of cases of this kind.[10]This was not a case of what is described as "single punch" manslaughter, involving youths who have been drinking starting something of a dust up which ends in a fatal blow. Those cases are sufficiently described by the Vice-President (Rose LJ) in Kime in this way:
"It is to be observed that the authorities to which our attention have been drawn for the most part involve fights outside licensed premises, at or about closing time, between men of comparable age and several of them involve victims who are themselves displaying signs of aggressive language or behaviour."
To that we would simply add, having considered the very many authorities which we have now considered, that it is in truth not realistic to treat what is described as one-punch manslaughter as comprising a single identical set of circumstances. Cases involving death which results from a single blow vary greatly in their seriousness. That fact is reflected in the very wide range of sentences which have been imposed by different courts dealing with them.[11]We should perhaps add that a lengthy debate about individual features arising in each of the different reported cases rarely assists. We cannot approach the decision which has to be made, nor can sentencing judges, on the basis of drawing up a list of credit and debit points in each of those cases, so as to see which of them are reflected in the instant case. Perhaps all that we need finally say is that in truth we are dealing with an unintended death which resulted from unnecessary violence.[12]The sentencing decision remains problematic. There is, as a starting point, a relatively, we emphasise relatively, minor incident of violence involving a single blow, administered by the offender, which has resulted in catastrophic injuries to another human being and the sad death of man of mature years in good health. The reality is that the consequences of that blow far out stripped the violence intended by the offender. In particular, as the charge of manslaughter itself accepted, he did not intend the death of the deceased nor even that he should suffer grievous bodily harm. In that sense the attack was apparently unpremeditated and involved no weapon. All that said, the dreadful consequences of that blow resulted from utterly gratuitous violence.[13]Looked at through the eyes of the deceased, he faced two young men who confronted him as he was making his way home. He was in a street, a residential area, not far from home, where no doubt he had walked many times peacefully before and would have anticipated, if anybody had asked, he would walk many times peacefully, and untroubled, again. He said nothing and did nothing to create any trouble, and the blow administered to him resulted in his death, his life brought to a cruel and sudden end, to the great distress and grief of those who loved him.[14]The offender is not a man of good character. Although it is true he has no previous convictions for violence, he has already served custodial sentences. The case lacked the mitigation of a guilty plea. To the contrary, there was an attack on the credit of the deceased and an inappropriate and unjustified casting of blame on him. That rather dissipated the mitigating effect of his return to this country from Bangladesh.[15]What has struck us, as we have considered this case, apart from the particular circumstances which we have already endeavoured to outline in this judgment, is that this kind of unnecessary violence, in residential areas, creates great, and justified, and increasing public concern. People expect their streets to be safe, and they particularly expect them to be safe for children using them and for the elderly walking in them. This case, if nothing else, has the aggravating feature that two children saw this man poleaxed to the ground and left there unconscious.[16]Those who are violent, as this offender was, and in the circumstances in which he was, have to face up to the consequences of their actions, even if the consequences were unintended. We have examined the authorities. We have come to the clear conclusion that this sentence was unduly lenient. We have reflected on the right level of sentence. That involves us taking account of the principle of double jeopardy, which we do. Having taken that into account and reflected on thoughtful submissions to us by counsel on the offender's behalf, we have come to the conclusion that the sentence should be increased. The sentence imposed on the offender will now be three-and-a-half years' imprisonment.

Cited in 1 later judgment