Attorney-General's Reference No 27 & 28 Of 2008 [2008] EWCA Crim 2027

No: 2008/02839/A6 and 2008/02845/A6[2008] EWCA Crim 2027
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 31st July 2008
Strand
London, WC2
B E F O R E:
SIR IGOR JUDGE
(President of the Queen's Bench Division)
MR JUSTICE SIMON
MR JUSTICE AKENHEAD
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 27 and 28 OF 2008
(CHRISTOPHER MARCUS LEWIS AND MARVIN JAMES WALKER)
Computer Aided Transcript of the Palantype Notes of
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Mr CWD Aylett QC appeared on behalf of the Attorney-General
Miss S Buckingham appeared on behalf of the Offender Lewis
Mr IM Metcalfe appeared on behalf of the Offender Walker
J U D G M E N T
[1]SIR IGOR JUDGE, P: This is a reference under section 36 of the Criminal Justice Act 1988 by Her Majesty's Attorney-General of sentences on two offenders, Christopher Lewis and Marvin Walker. Lewis is 23 years old. He has convictions for assault occasioning actual bodily harm, possessing an offensive weapon (a lock knife) and criminal damage. The second offender is Marvin Walker. He is 21 years old. He has two previous convictions for battery and two for handling stolen property. None of those convictions involved anything like the criminality of the offence which we must now address.[2]On 2nd April 2008 the two offenders pleaded guilty to the manslaughter of Shane Owoo. Shortly afterwards, on 25th April, before Coulson J sitting at the Birmingham Crown Court, they were sentenced to 5½ years' imprisonment.[3]The facts of the case are briefly summarised. Shane Owoo was born in February 1991. At the date of his death, on 29th September 2007, he was 16½ years old.[4]The events with which we are concerned occurred in a very short space of time. In the early hours of Saturday, 29th September 2007, Shane stole a mountain bicycle belonging to Lewis' brother and he was seen riding that bicycle by Walker. According to one of Shane's friends and another witness, Walker challenged Shane, accusing him of having taken his brethren's bike. Shane claimed that he had bought the bicycle. Shane's friend thought that Walker said, "If I find out it's my friend's bike, I'm gonna kill you." The witness thought that Walker had said something like that Shane should, "Look out tomorrow", a phrase which Walker subsequently accepted he had used.[5]So what this case is about is two men — indeed, we will see in a moment more than two men — deciding that one young man should be punished and this happened on the same day, at about 1 o'clock lunchtime. A number of witnesses saw Shane being assaulted in Bilston. They saw him attacked by Lewis, by Walker and by a third man, Tobias Davies. Shane was kneed in the face. He was slapped by both offenders. He was pushed over a wall. He was punched in the ribs, both by Walker and indeed by Davies. He was thrown by the offenders into a patch of nettles. By the end of this attack Shane was crying, his face was bleeding and he was limping.[6]In our judgment, on its own was a serious assault: three men in their early twenties, bullying and treating a boy of 16 with completely unnecessary and inappropriate violence. That was bad enough, but that at least should have been the end of it. Instead, as the judge observed, the violence developed in a horrifying way. Instead of letting the crying boy make his humiliated way home, the attackers then crowded round him and prevented him from getting away. Stumbling along, he was led towards a place called Lunt Pool, some 300 yards away from the scene of the violence. This is a natural pool. The water is deep when you get away from steep-sided banks.[7]A witness heard Lewis tell Shane that he was going to take him for a swim, and then dragged him out and beat him. When they reached the pool Shane was ordered to jump into the water, and told by Lewis that if he did not do as he was told he would be hit. At the same time, Walker was telling him to dive in. There was at least one other person, and there were possibly more with Lewis and Walker at this time.[8]It was clear that Shane was a very frightened boy, but nonetheless he jumped in, fully clothed. He stood at the edge of the pond with the water up to his chest. Lewis threatened him with a stick, and said something to the effect, "You get out and you're gonna have this." From the side of the pool, Walker kicked gravel towards him, "You've got to swim; you ain't getting out."[9]Shane was then ordered to swim to the middle of the pond. He set off, but he was not a strong swimmer and he started to struggle. He was ordered to swim the backstroke or else he would be beaten up. He eventually made it to the edge of the pond, but as he approached it he was driven away with sticks. Walker threw gravel at him. More important, neither of the offenders did anything to help him; instead they laughed at him as he floundered in the water.[10]A number of witnesses realised that Shane was struggling and they called out to the offenders telling them so, but the offenders laughed and said that Shane was pretending.[11]He was not. Unhappily, having been driven back to the deeper water, he started to drown. He went under and came up again, and then, exhausted after calling for help, he went under for the last time and he was not seen again.[12]One of those at the scene — it is sad to have to say, the youngest of those at the scene — a child called Barry Greatrex, who is to be commended for his efforts, then jumped into the water and he tried to swim out towards Shane. But he was not a strong enough swimmer, and, unable to see Shane in the murky water, he turned back.[13]With that, and in fairness we should record, Lewis also dived in. He looked for Shane below the water, but he was unable to find him and eventually he returned to the bank.[14]An ambulance was called. Police officers came to the scene. Shane could not be found. The two offenders ran away, although, again in fairness, Lewis returned to the pond later.[15]When Shane's body was recovered, at post-mortem it was established that he had indeed drowned. There were two areas of deep bruising to the rear and right side of the head. There were other bruises, not of major significance, to his face, back and lower limbs.[16]Lewis and the man Davies were arrested on 30th September 2007 and Walker on 10th October 2007.[17]When interviewed Lewis admitted that he had been angry with Shane over the theft of his brother's bicycle. He agreed that he had struck him several times. He said they had gone to the pond in order to look for the bicycle, and when they had arrived there Shane had jumped in of his own accord. According to this interview Lewis told him to get out, but Shane had started to drown and Lewis said that he jumped in to try and save him. Thereafter he had no comment to make to the questions that were put to him.[18]Walker's interview was no more credible. He said that he had been on the fringe of the crowd following Lewis and Shane to the lake. He had seen Shane jump in. He realised that Shane was in trouble, but he had been unable to help because he could not swim. He denied having done anything such as throwing gravel at Shane or using a stick to prevent him getting out of the pond.[19]We have seen the victim impact statement made by Shane's aunt. We shall not record its contents here. It does, however, explain how difficult it is for her and her family to come to terms with the fact of Shane's death, and the particular poignancy of knowing how and in what circumstances he died.[20]We have also seen a statement from the offender Lewis' mother. That too makes sad reading. Again, we shall not read out the statement in court.[21]When the defendants were arraigned in January 2008 they pleaded not guilty. In due course as part of the prosecution's intended case against them, notice was served of an intention to lead evidence of bad character against the defendants. The prosecution were in possession of material that showed that less than a fortnight before the fatal incident, the same three offenders had forced another man, a man called Foster, into Lunt Pool as a punishment for owing £20 to Walker for some drugs. Foster had been forced to dive into the water and the offenders had refused to let him come out, until eventually, sobbing, they let him make his escape. This incident was recorded on Lewis' mobile telephone.[22]On 10th March Walker's solicitors wrote indicating that he intended to plead guilty to manslaughter. The case was listed for trial on 2nd April and on that day Lewis indicated that he would plead guilty.[23]On behalf of both offenders, written bases of plea were submitted. The areas of dispute were the subject of submissions between the parties. The judge came to the view that he could deal with these areas of dispute in the context of his sentencing remarks, and indeed the various matters which were in dispute were referred to and embodied in his judgment.[24]Perhaps we should just record that when opening the case to the judge, the prosecution did not refer to the incident involving Mr Foster. However counsel for Lewis relied on it in support of a submission, which is in effect renewed before us today, that perhaps the offenders had been lulled into a false sense of security by the fact that Foster had emerged from the water apparently unharmed.[25]The sentencing remarks by the trial judge encapsulate the crucial features of this case. He was satisfied that the two offenders did not pose a significant risk of harm to the public, in the sense that might call into operation the then current statutory arrangements in relation to imprisonment for public protection. But he recorded that this was:
"... an horrific crime, with a large number of aggravating features. This was a long and terrifying ordeal, deliberately inflicted on Shane Owoo. He was assaulted, frog marched for what appears to be a punishment swim, made to jump into the water and, worst of all, not let out, even when he was in such obvious difficulties. By your own admission you were closely involved in all of those events. There was the worst kind of bullying and assault before the events at the pool, intimidation and humiliation at the pool, and, in my judgment, extraordinarily callous behaviour when he was in the pool, clearly in difficulties, and you would not let him out. It was plainly foreseeable that Shane Owoo might drown in consequence."
[26]On behalf of Her Majesty's Attorney-General it is submitted that the sentence eventually imposed by the judge, taking a starting point of 7 years and making due allowance for the guilty pleas, tendered as they were not at the earliest opportunity, was unduly lenient. Our attention was drawn to three authorities: Attorney-General's Reference Nos 19, 20 and 21 of 2001 [2002] 1 Cr App R(S) 33; Attorney-General's Reference Nos 108 and 109 of 2002 [2003] 2 Cr App R(S) 102; and R v Walters [2005] 1 Cr App R(S) 100, and our attention has been drawn by counsel on behalf of Lewis to a different decision of the court: R v P (unreported) 4th July 2005, [2005] EWCA Crim 1960.[27]We mean no discourtesy to the submissions, in particular to the attention we were asked to focus on these authorities, to record that we do not find any of them to have been of particular assistance to us.[28]The submission on behalf of the offenders is that their conduct merited punishment, but that the actual sentence imposed by the judge was not unduly lenient. It was, indeed, suggested that the sentence was a proper reflection of the offenders' criminality.[29]We can express our conclusions in brief terms in what on any view is a tragic case. The judge carefully identified the relevant aggravating features of the case. None of them was omitted from his consideration. However, in our judgment in taking a starting point of 7 years for this case and the features of it which he identified, he took what was an unduly low starting point.[30]The death of Shane was not intended and the offenders expected that eventually he would emerge from the water. They were not charged with, let alone convicted of, murder. But on any view, this was manslaughter consequent on a combination of persistent violent, bullying conduct and total recklessness. This was not a form of horseplay or approaching anything like the beginning of what might be described as horseplay. In our judgment, a starting point of less than 10 years would have been inappropriate, to reflect both the elements of punishment and deterrence against this kind of bullying behaviour, with its unwanted and sometimes unanticipated disastrous consequences.[31]In favour of the offenders, they did plead guilty. It was accepted that the offenders were genuinely sorry and remorseful for what had happened, and in particular that both had some insight into the suffering they had inflicted on the young man Shane's family. We also take account that in the case of Lewis in the end he did repent and he did dive in, albeit much too late, to try and see whether he could save Shane. That is to his credit.[32]We do not think it fair or just to distinguish between the offenders in this case. We have come to the conclusion that the sentence on both of them imposed by Coulson J should be quashed and that a sentence of 7½ years' imprisonment should be substituted.[33]To that extent, this application by Her Majesty's Attorney-General succeeds.[34]Thank you very much, Mr Aylett. Thank you Miss Buckingham, Mr Metcalfe. ____________________________

Cited in 1 later judgment