Attorney General Reference No 113 of 2006 [2006] EWCA Crim 3292

Case No 200602794/A4[2006] EWCA Crim 3292
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 7th December 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE HUGHES
MR JUSTICE ROYCE
SIR RICHARD CURTIS
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 113 OF 2006
(L)
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MR R HORWELL appeared on behalf of the ATTORNEY GENERAL
MR R WORMALD appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE HUGHES:

[1]Her Majesty's Attorney-General seeks leave to refer to this Court, under section 36 of the Criminal Justice Act 1988, an extended sentence of 3 years custodial element and 3 years extended licence, which was imposed following a plea of guilty to a charge of manslaughter. We give leave.[2]The defendant, as we shall refer to him, was born on 22nd March 1990. He was 15 at the time of his offence. He has an unenviable record of disruptive behaviour at school, which has led to exclusion and convictions for robbery by bullying in the street and for the possession of a bladed article. He was on bail at the time he committed this offence.[3]On Sunday 8th January 2006 he was at the railway station in Welwyn Garden City, sometime just before 6 o'clock in the evening. He had been drinking. He was boasting to some companions of a similar age that he had hit someone that afternoon. One of those others had on his mobile telephone a video clip of someone being assaulted and knocked down. The defendant boasted that he could do that and knock someone down with a punch. He spotted the deceased, Mr Topp, who was at the station with his fiancee. There was no connection between them. There had not been any argument between them. Mr Topp was minding his own business. The defendant was showing off. First, he took a pretend swing at Mr Topp. Mr Topp did not, as others might have done, react. A few paces further on the defendant picked a fight with Mr Topp, saying, as unhappily so often is said in these circumstances:
"What's your problem?"
He then hit him once in the face with his clenched fist. That knocked Mr Topp straight to the ground, and on the way down he struck his head on the baluster rail of the stairs that he was on. The defendant ran away.[4]The punch had fractured Mr Topp's jaw. That, though a nasty injury, would not have been long-lasting, still less fatal. But the fall to the ground and/or the striking of the baluster rail had caused a fractured skull. That, in turn, resulted in internal head injuries, from which it proved impossible to save him. He never regained consciousness and he died the following day.[5]The defendant was arrested three days later. On advice, he initially declined to answer questions but there then ensued an identification parade, at which all the potential witnesses who viewed the parade were unable to say that it had been the defendant who had been responsible. Knowing that that was the state of the evidence, the defendant when re-arrested a week afterwards provided a short statement, which he had prepared no doubt with some assistance. It said this:
"I've done a terrible thing. A bloke is dead because I was mucking about. I'm so sorry for what I've done. This bloke was on the platform. I'd had a good drink. I was taking the piss out of him. I'd pretend to throw a punch at him, but made no contact. He did not respond to this. I'd walked down onto the platform. A few minutes later he appeared on the platform. I thought he was with a female. I started to show off again. I said to him, 'What's your problem?' I walked around him. He looked at me. I said, 'What's your problem?' I then aimed a punch at him with my right fist. I did not use my full force, it was more like a jab. I think he saw it coming because he swayed backwards, so I just clipped. He seemed to lose his balance and fell backwards. I did not see him hit his head on anything. I walked round him. I could not understand why he'd not got up. I ran way."
He had said it to his solicitor and the solicitor had recorded it. There are plainly the defendant's own words. This could accordingly properly be described as a voluntary admission of this very serious offence and indicative of remorse, rather than an admission forced out the defendant by inescapable evidence as is sometimes the case.[6]The charge was always one of manslaughter. The defendant pleaded guilty at an early opportunity. Accordingly this is another example of an act of violence which had unintended consequences. If it had been alleged by the Crown that the defendant intended to kill, certainly, but also to do any serious harm, then the charge would have been murder. Because, whilst it is not universally realised, killing following an attack in which any serious harm is intended, is murder, just as much as killing intending to kill. If that had been the case, of course the sentencing regime would have been completely different. It was however never the allegation here.[7]We accept, of course, the principle that the nature of the intention, short of an intention to do any serious harm, exists in cases of manslaughter on a spectrum. There are cases there is really hardly any intent to do any harm at all and there are cases at the other end of the spectrum. But, as the judge was acutely conscious, this defendant had to be sentenced on the basis that he did not intend any serious harm. That said, although he did not mean to do it, he had certainly caused not just serious harm but much worse and the consequence of what he had done is a proper factor in sentencing.[8]In this case, this defendant had caused a death by gratuitous, unnecessary violence. He had picked on Mr Topp for no better reason than that he happened to be there and because he was showing off to his acquaintances what a big man he was.[9]We agree with counsel for the Attorney-General to this extent: if one concentrates simply on the events of the two or three minutes or less, which led to the death of an entirely blameless man, there is really no mitigation.[10]This defendant had an established reputation as a disruptive bully at school. He had been excluded for limited periods in the past and eventually expelled for stealing from a teacher's desk. He was on bail at the time and indeed he was due to report to the police station later that same evening. He had been drinking.[11]We doubt if this is properly called a premeditated offence, unlike, for example, R v Rumbole [2001] 2 Cr App R(S) 62, at 299. There was no question here of lying in wait because of a grudge. This was a deliberate, non-spontaneous blow, rather than one with significant preplanning. But it was a blow against somebody in respect of whom the defendant had not even colourable grudge or cause for anger. He simply used him to demonstrate his capacity for violence. His counsel realistically described what happened to the judge as crass, thuggish and callous. The judge agreed, and so do we. It was mindless violence, for violence sake, of the kind which rightly angers and worries the public, in whom we include ourselves.[12]Mr Topp was 36. He was a kindly, uncomplicated man, with an interest in voluntary work in the outdoors and, as we understand, in scouting. He had spent a pleasant Sunday afternoon playing billiards with his brother, in the company of his fiancee. He was with his fiancee when he met his death. No one who has read her wholly natural account of their time together and of the impact of his death upon her, as we all have, could fail to be very much moved by it. This wholly unnecessary death removed a fiancee, friend, workmate and son, and it leaves lasting effects on everybody who knew deceased. That is, of course, always true in the case of a death following a criminal act.[13]As so often, that is only part of the story. The judge had a great deal of information about this boy. It all came, importantly, from sources other than himself. It came from people such as school teachers, to whom he had shown no respect whatever, the probation officer, a psychiatrist, and his father, who perhaps more than anybody else he had repeatedly let down.[14]The judge was, at the request as we understand it of the family, appropriately discreet in his references to the background, but it seems to us that the fact that the case has been brought here makes it necessary for us to be a little more explicit.[15]The 15-year-old defendant had been born of African and Malaysian blood parents whom he had never known. He was adopted as a 5-month old by an English father and his then wife from Mauritius. Sadly, in the relationship between his adoptive parents there ensued a great deal of unhappiness. We caution ourselves that we have seen only father's account of that, and no doubt mother's account of it would be a little different. But it is plain, whatever the rights and wrongs of the unhappiness in the family, much of it revolved around this child from an age when he was not responsible. The boy had plainly been a large part of the disagreement between the adoptive parents. He cannot have been unaware of it. Nor of the fact that they shortly had a daughter of their own who, if father is right, had a wholly different relationship with mother and who was treated quite differently. If father is right, there was, for many years, cause for concern about the way this defendant was treated when four or five years old - inappropriate punishment, to put it at its lowest. Then, between the ages of 6 and 9, in the aftermath of the breakdown of the marriage he was taken away by mother to a different part of the country. That did not work. When he was brought back by father, at the age of about 9, he was found to be deeply fearful, so deeply fearful that he could not face anybody and spent all of his time hiding in cupboards or under beds, apparently cowering in anticipation of violence. That continued for a long time. The adjustment was not helped by the fact that his father's work then led to several moves of house.[16]In the end, the school reports, the psychiatric report, the pre-sentence report and father's witness statement all make it clear that what happened is that the frightened and bullied little boy grew into a rude, aggressive and bullying teenager. That is a reaction which is perhaps by no means unknown. What happened was that he found that he could gain acceptance and credibility amongst his age group by misbehaving and showing off. It made him feel big. For the reasons which we have explained he had particular need for self-confidence. Bad then went to worse. He was truanting. Someone introduced him to cannabis when he was 12. In the year or so before this offence he had been excluded from school despite his father's efforts, he had left home at 14 or thereabouts with nowhere to go. That led to stealing, burglary and street robbery.[17]The psychiatrist, the probation officer, the head master who knew him best, and those who have been responsible for him in prison, all agree that, unlike some with this kind of disruptive, aggressive and offending background, this young man appears not to be beyond redemption. They are all objective, critical observers. There is no question of psychopathy. He is quite intelligent, and when he is not showing off in an adolescent manner, he has the capacity for charm and for likeable and responsible behaviour towards others. Large teenagers like him can be physically very powerful, but at 15 this is someone who still had a great deal of growing up to do and a capacity to do it. There are limited signs, and were before, the judge that he has began the process. What he did appears to have had not only untold impact on those who knew Mr Topp but also an altering impact on him. The volunteered admission which we have already read suggests that; so do other similar things that he has said since, a short passage of which was read to the judge. It is in his own words again and, like what he said to the police at an early stage, does appear to demonstrate that he has faced the enormity of what he has done. By the time he was sentenced he had been in custody for some months. The reports from the Young Offender's Institution at Feltham showed that "he appears to have made a massive effort to turn his behaviour around ... staff are extremely happy with the progress made to date."[18]That was before the judge. He was told that aggressive behaviour had stopped, that the defendant was revealing himself as helpful, in the structured place where he was kept and he was working well and trying to make up time in the education which, through his own fault, had been so badly interrupted before. He was at the time of the appearance before the judge judged by the prison authorities as being well on the way to achieving what is called enhanced status, which is recognition of good and responsible behaviour. For the record, we ought to say that we have called for and seen an updated report to see whether that progress was a flash in the pan. It was not. Seven months more have passed now. There was a setback, when he was told that the case was to come here and he briefly lost the enhanced status which he had gained but he has recovered it, through what the prison report describes "a great effort". The supervisor in particular says this:
"I have been working with Callum for almost nine months. During this time I have seen a noticeable change in him. He has matured and is keen to gain qualifications in custody. There was an incident about six months ago where another young person was inciting [him] to fight. [He] acted in a mature way and instead of reacting spoke to unit staff who were able to deal with the situation. I believe this demonstrates a positive change in Callum."
They are in a better position to judge than we are, but it is certainly a wholly different reaction to the one he displayed at Welwyn Garden Station. We bear in mind, of course, that he has the opportunity to improve himself, whereas the offence to which he pleaded guilty means that Mr Topp has no chance to develop at all.[19]The judge who dealt with this was a very experienced judge. He had somehow to reconcile the competing claims of punishment, deterrence, public reassurance and the reduction of risk for the future. It was simply impossible to pass any sentence which could be proportionate to the loss which had been suffered by those who loved Mr Topp, because no sentence could compensate for the loss. The nature of the offence required, as it seems to us, condign punishment. Yet the public, if it knew something of what had made the defendant what he was, would also have a powerful interest in him not staying like that and in taking advantage of his capacity for change. At the age of 15, just 16 when sentenced, he could not simply be written off and nor was it in the public interest that he should be.[20]Faced with the competing pressures, we have some doubts whether Solomon in all his wisdom could have devised a sentence which one or the other would not have had some occasion to complain about. The law is that this Court has power to review a sentence upwards if it is "unduly lenient"; that means if it is outside the bracket which is properly available to the judge, or as it is sometimes put, grossly in error (see Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R(S) 366, at 371 and Attorney-General's Reference 132 of 2001 (R v Johnson) [2003] 1 Cr App R(S) 190. It does not seem to us that it would be useful to embark, yet again, upon an examination of the many authorities in the field of what is often loosely referred to as "one punch manslaughter". That has been undertaken recently in Attorney-General's Reference No 100 of 2001 (R v Welch) [2002] 2 Cr App R(S) 81, at page 365, Attorney-General's Reference No 9 of 2005 (R v Uddin) [2005] 2 Cr App R(S) 105, 664, and R v Furby [2006] 2 Cr App R(S) 8 page 64. We simply say this. These cases cannot be put into a single category. The sentence in R v Coleman (1992) 13 Cr App R(S) 508 is at or near the bottom of the scale - 12 months on a plea of guilty. Other cases show that sentences may range up to about 4 years on a plea of guilty (see Furby) and occasionally above. Uddin was a case not unlike the present, absent showing off but involving a defendant of 24. This Court substituted a sentence, making allowance for double jeopardy which must have contemplated a sentence of a little over 4 years. That was after trial.[21]We have been referred to a number of other cases. We record that we have seen and considered R v Warwood [2006] 2 Cr App R(S) 113 at page 756, R v Hamar [2001] 2 Cr App R(S) 61 at 295 and R v Crimp (1995) 16 Cr App R(S) 346. We respectfully endorse what was said by Sir Igor

Judge President, in the case of Uddin at paragraph 10:

"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."
A little later, Sir Igor said this:
"What has struck us, as we have considered this case ... is that this kind of unnecessary violence, in residential areas, creates great, and justified, and increasing public concern."
He went on to explain why. We entirely agree.[22]It follows from the authorities to which we have referred that in this case the sentence could properly have been anywhere in the range between about two-and-a-half years and about 5 years. The sentence could well, we accept, have been towards the upper end of that bracket rather then towards the lower end as it was at 3 years plus the extension. The decisive factor to the judge, as it seems to us, is likely to have been, the age of this defendant and what he had by way of background information about him and the clear evidence of improvement.[23]We are clear that the sentence to which this judge came is one which is not such with which it would be right for us to interfere, particularly when we have in mind that were we to do so, we should need, as is always the practice of this Court, to discount any substituted sentence to take account of the fact that the defendant has had to face sentencing twice. We should add that the judge correctly confronted the risk which, despite the improvement, this young man plainly poses. In the case of a young man of this age, the proper course, according to statute, is to impose an extended sentence, unless the judge considers that that would not provided adequate public protection. In that event there would have to be a sentence of imprisonment for public protection. It has not been any part of the Attorney-General's submission that this was a case in which an extended sentence did not provide proper protection.[24]The judge's extended sentence of 3 years custody and 3 years extended licence to monitor and control the defendant is, as it seems to us, a sentence which was properly open to him, in all the very complicated circumstances that he had to consider. Having thought quite hard about it, we decline to interfere with it. Thank you very much.