Layden, R v [2008] EWCA Crim 902

Case No 2007/5970/A8[2008] EWCA Crim 902
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 3 April 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOORE-BICK
MR JUSTICE OPENSHAW
SIR RICHARD CURTIS
Between
R E G I N ACrownv
Between
ASHLEY SCOTT LAYDEN
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R Jameson QC appeared for AppellantMr J Goss QC appeared for Crown
J U D G M E N T

LORD JUSTICE MOORE-BICK:

[1]On 24th September 2007 in the Crown Court at Leeds before His Honour Judge Stewart QC the appellant pleaded guilty to manslaughter on count 2 of an indictment charging him with murder. Count 1 charged him with criminal damage and was ordered to lie on the file in the usual terms. On 17th October he was sentenced to four-and-a-half years' detention in a young offender institution. He now appeals against sentence by leave of the single judge.[2]The events giving rise to the conviction occurred in October 2006 when the appellant was a little over 17. He lived on the Wilton Estate in Batley. His older sister Amanda, who at the time was eight months' pregnant, lived nearby at 17 Laurel Grove.[3]On the evening of 27th October 2006 she telephoned the appellant and told him that she had been assaulted by her partner, Wesley Bolton. As a result the appellant and some young friends went looking for Mr Bolton. On two separate occasions they found him in his car and did some damage to it before finally returning to his sister's house where he decided to remain for a time.[4]The deceased, Mark Cliff, who was then aged 21, had spent the evening at a friend's house at 21 Laurel Grove, two doors down the road. He and his girlfriend left the house with two others at around midnight. As they walked past No. 17 the appellant and a group of friends, some of whom were much younger than him, shouted some abuse. That was more than the deceased could stomach and he ran towards the front door of No. 17, shouting at the youths as he did so. He had reached the front door when the fatal incident occurred.[5]In the meantime the appellant had gone back through the house to the kitchen, picked up a knife and returned to the front door. He was standing just inside the door as the deceased approached it. It is not precisely clear what happened next, but shortly afterwards the deceased staggered away from the house clutching his abdomen and collapsed at the side of the road a short distance away. The appellant dialled 999 and said that he had seen a number of people fighting and that a knife was involved. He did not say at that stage that he had held the knife or that he had been involved in the fight.[6]When the police arrived the deceased was pale and unresponsive with a large wound to the right side of his abdomen. The paramedics arrived five minutes later and found that he was not breathing and had no heartbeat. He was taken to hospital but efforts to revive him were unsuccessful and he was pronounced dead at 1.15 am. The cause of death was a single stab wound to the abdomen, 10cm deep, which had penetrated the liver and aorta causing massive internal bleeding. One witness heard the appellant say after the incident:
"All I did was stand at the door with a knife and he ran into it"
. When he was arrested he said that the deceased had come at him with a weapon and that he had picked up the knife to defend his sister, but in fact there was no evidence to suggest that Mr Cliff had been armed with anything. The appellant himself sustained abrasions to both sides of his head in the course of the scuffle which occurred when the deceased confronted him in the doorway and punched him.[7]In interview the appellant said that he knew the deceased and that he had no particular problems with him. He said his friends had shouted at the deceased as he walked past and that the deceased had run towards the house. He had picked up a knife from the kitchen in order to protect his sister, but the deceased had run up and punched him and at that very moment had run himself onto the knife.[8]The appellant pleaded guilty to manslaughter on the following basis:(i) that his unlawful act was to take a knife from the kitchen and take it to the front door in circumstances which amounted to an assault by putting the deceased in fear of immediate and unlawful violence, which was in some measure causative of his death.(ii) that he at no stage intended to use the knife to strike a blow and did not do so.(iii) that the stabbing was not deliberate and occurred as the deceased was assaulting him by punching him to the right side of his head, causing his head to hit the door frame.[9]When passing sentence the judge observed that the appellant and his friends had been spoiling for a confrontation and had decided to pick on the deceased who was walking past minding his own business. His mistake, he said, was to react to their taunts. He observed that the precise mechanics of the stabbing were unclear, save for the fact that the appellant had been holding the knife and that it had entered the deceased's body. The judge was of course bound to accept the basis of plea, namely that the appellant had acted in an unlawful and dangerous way which had been at least in part a cause of the deceased's death. The judge gave the appellant credit for his plea and for his age. He did not find him to be dangerous for the purposes of the Criminal Justice Act 2003 and therefore passed a determinate sentence which in this case was one of four-and-a-half years' detention.[10]The primary ground of appeal in this case is that the sentence was manifestly excessive in the light of the basis of the plea, the fact that the appellant had offered a plea to manslaughter at an early stage, his age and his good character. It is also said in support of the appeal that the judge passed sentence partly on the basis of facts which were not properly supported by the evidence and which, although in dispute, had not been resolved by a Newton hearing.[11]It is convenient to dispose of this latter point first. The complaint is that the judge proceeded to pass sentence on the basis that the appellant had been one of those who had been responsible for the incident by taunting the deceased, leading to his eventual death. Mr Jameson QC for the appellant has pointed out that the only evidence to support that conclusion came from two witnesses who said that two youths, one of whom was the appellant, had shouted abuse at the deceased, whereas a greater number of witnesses said that only one boy, a 14-year-old called MS, had been responsible for doing so.[12]It is important to be clear about exactly what the judge did say in this context. The transcript of his sentencing remarks shows that he said this:
"I am satisfied on all the evidence that you and your group were spoiling for a confrontation and when, wisely, Wesley Bolton did not appear, one or more of your number, including MS picked instead upon Mark Cliff, who was innocently minding his own business and walking past your sister's home with his friends. Your 14 year old friends then taunted him from your sister's garden..."
Since the evidence on this point had been expressly drawn to the judge's attention by counsel in the course of mitigation, it is not surprising that he should have referred in terms to the part played by MS who clearly had shouted at Mr Cliff. However, we do not think it right to say that the judge cast the blame for provoking this incident on the appellant. He did not mention the appellant in terms; he referred simply to "your 14-year-old friends" as having been responsible for the taunts and we are therefore not satisfied that he passed sentence on the basis suggested.[13]It has also been suggested that the judge may have been influenced in his determination of the sentence by his understanding that the appellant had been lying in wait to ambush Wesley Bolton, whereas in truth he had remained at the house simply to protect his sister. In relation to that the judge said:
"However you and your young friends, some of whom were only 14 years of age, were gathered in the garden of your sister's home awaiting the arrival of Wesley Bolton, whom you expected to react to the damage caused twice that evening to his car..."
It seems clear from that passage that the judge did think that the appellant and his friends were expecting Mr Bolton to come to the house, but in our view he was doing no more than setting the scene for the events which followed and we are not persuaded that it materially influenced his view of the appropriate sentence to be passed in this case. The only question therefore is whether a sentence of four-and-a-half years' detention is too long for this offence taking into account all the circumstances.[14]The appellant is a young man who was just over 17 at the date of the offence. He is of substantially good character, having been convicted of only one relatively minor offence some three years earlier, and was assessed by the writer of the pre-sentence report as presenting a low risk of re-offending. We have had the benefit of a number of character references, including three provided to the court today, all of which support the fact that he is a young man of promise and generally good character.[15]In view of the doubt surrounding the precise circumstances in which the deceased met his death the appellant deserved considerable credit for his plea of guilty; he also deserved credit for calling the police and for the remorse which he now feels for what he has done. The judge took these matters into consideration. We have also seen the victim personal statement made by the deceased's mother which makes it abundantly clear what a profound impact his death has had on her and her family.[16]This is, on any view, a very sad case which once again highlights the dangers involved when knives are produced in situations fraught with emotion and fuelled, as was the case here, by alcohol. We have to bear in mind that the carrying of knives is increasingly widespread and gives rise to a very grave risk of death or serious injury when brandished in the course of confrontations of this kind. For that reason where death or serious injury results judges can be expected to pass heavy sentences, not only to mark the gravity of the offence itself but also to deter others who may be minded to act in a similar manner.[17]In this case the appellant was not carrying a knife in a public place but he did return to the house and deliberately fetch a knife from the kitchen which he then produced in the context of what had already become a violent confrontation. As a result of his action a man died. By fetching and brandishing the knife he turned what would otherwise have been a relatively minor brawl into a confrontation of a completely different kind.[18]In the circumstances, although the sentence may be regarded as somewhat severe, we do not think that it is manifestly excessive having regard to the gravity of the offence. In those circumstances the appeal is dismissed.