Hattherley, R. v [2009] EWCA Crim 1873

[2009] EWCA Crim 1873Case No 200901538/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 8th September 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE SIMON
MR JUSTICE COULSON
Between
R E G I N ACrownv
Between
SCOTT HATTHERLEY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Langdale appeared for AppellantMr S Coupland appeared for Crown
J U D G M E N T
[1]MR JUSTICE COULSON: The appellant is now 20. On 27th October 2008 at Leicester Crown Court he was convicted of manslaughter. On 21st November 2008 he was sentenced by His Honour Judge Pert QC to 6 years' detention in a young offender institution. He appeals against that sentence with the leave of the single judge.[2]The facts are these. At about 10.30 at night on 10th October 2007 Mr Sean Lobb, a 40-year-old man, was walking home through the streets of Netherfield, Nottingham. A car in which there were four passengers, including Liam Perry and Craig McGregor, passed him and McGregor shouted something at him through the window. Mr Lobb stuck his fingers up at the car. The car stopped and McGregor, Perry and another passenger got out. McGregor confronted Lobb, pushed him and hit him on the top of the head.[3]At this point the appellant appeared on his bicycle. He watched the incident develop. Having checked to ensure that another watching man was not a threat, the appellant got off his bike to join in. By this stage McGregor had punched Mr Lobb a number of times and had pushed him towards a shop. The appellant joined McGregor and Perry and participated in the incident, but there was no evidence that he struck Mr Lobb at all. Thereafter the appellant moved away. Perry joined the attack, punching Mr Lobb so hard that he knocked him to the ground. Perry and McGregor then stood over their victim and McGregor stamped or kicked him as he lay there. By this point the appellant had returned to his bicycle and was no longer involved in the incident at all.[4]Mr Lobb was taken to hospital. He had sustained a fracture to the back of his skull when he fell to the pavement following Perry's punch. This caused a brain injury which tragically resulted in his death.[5]Perry and McGregor both pleaded guilty to manslaughter. The appellant denied the same charge and was convicted after a trial. Perry and McGregor were both sentenced to 4 years' detention, being calculated on the basis of a starting point of 6 years and a discount of one-third to reflect their guilty pleas. Judge Pert concluded that there was no reason to differentiate between the three defendants and accordingly, because the appellant was not entitled to any discount for a guilty plea, he was sentenced to the full 6 years' detention.[6]On behalf of the appellant, Mr Langdale's first submission this morning was to the effect that the judge was wrong to sentence the appellant without drawing a distinction between the significant involvement of McGregor and Perry on the one hand, and the minimal involvement of the appellant on the other. We have concluded that that submission is well founded.[7]In many cases involving joint enterprise it is unnecessary and unhelpful for the court to differentiate between the defendants, and entirely appropriate for the same sentence to be passed on each. On the other hand, there will be cases where, such is the disparity between the roles played by the different defendants, that justice requires a detailed consideration of the part played by each defendant before an appropriate sentence can be identified (see R v Belton & Petrow [1997] 1 Cr App R(S) 215).[8]We are, of course, mindful of the fact that, because there was a trial of the appellant, Judge Pert had an opportunity to consider the factual background to this incident and the different roles played by the defendants. But it seems to us that the judge was plainly wrong to conclude that, on the facts, each defendant deserved the same sentence.[9]On the one hand McGregor had started the whole incident, had been the first to confront Mr Lobb and had punched and kicked him repeatedly throughout the assault. Perry had also been involved in this unprovoked attack from the start and he delivered the fatal blow that killed the victim. On the other hand, the appellant had not been involved at the outset, appeared to have joined in the assault for only a few seconds, did not strike the victim and had moved away some time before the fatal blow was struck.[10]In all those circumstances therefore, we consider that the appellant deserved a significantly shorter sentence than that imposed upon McGregor and Perry. We agree with the learned judge that 6 years was the appropriate sentence, before discount for plea, for Perry and McGregor. What then was the appropriate lower sentence for the appellant?[11]That brings us to Mr Langdale's second submission which was to the effect that the 6 year term was manifestly excessive in any event. He argued, by reference to a number of authorities, that the appropriate sentence should have been less than 4 years' detention. Again, we consider, having considered those authorities, that that is a correct submission.[12]Cases of this type, where there is a wide disparity between the culpability of the offender and the harm which has been caused always present a difficult sentencing exercise. It is appropriate to note what the then Lord Chief Justice said in the case of R v Furby [2005] EWCA Crim 3147, a case to which Mr Langdale referred. He said:
"11. ... In the crime of manslaughter the harm caused is an element of the offence. No harm can be more serious than the death of a victim. Its impact usually extends, as it does in this case, to the relatives who have lost a loved one. They may, understandably, feel that no sentence can properly reflect the harm that has been caused. Because of the harm caused, the offence of manslaughter will usually, though not inevitably, attract a custodial sentence, regardless of the nature of the wrongdoing that has caused the death. 12. It is right, however, that the length of the sentence must reflect the culpability of the offender. This can vary widely in the case of manslaughter from violent or reckless behaviour that foreseeably carries the risk of causing death, to a case where death results from an unlawful act as a consequence of a fortuity which the offender could not reasonably have foreseen. Death resulting from a single punch usually falls into this category. 13. The circumstances in which the punch was delivered will have a significant effect on the length of the sentence; but where the consequences of the punch were not reasonably foreseeable, care must be taken to see that the effect is not disproportionate."
[13]In Furby this court reviewed a large number of cases such as this and identified a sentencing range of between 1 and 4 years' imprisonment, based on a guilty plea. Mr Langdale is, in our judgment, right to note that the upper end of that scale is reserved for defendants like McGregor and Perry, who were closely involved in the assault and where there were a number of aggravating features. In other words, on the basis of Furby, the 6 year sentence imposed upon this appellant was, we consider, manifestly excessive in any event.[14]Brief mention should be made of two other authorities because we have derived assistance from them in arriving at what we consider to be the appropriate sentence in this case. In R v Roberts [2006] 1 Cr App R(S) 183, this court confirmed a sentence of two-and-a-half years' imprisonment, in circumstances where the defendant, who pleaded guilty to manslaughter, got out of his car at some perceived abuse, confronted the victim and punched him so hard that he fell and fractured his skull.[15]Secondly there is another case on which Mr Langdale relied, R v Roberts & Day [2001] EWCA Crim 1594. In that case Mr Day was convicted of manslaughter. The victim had been punched by one of Mr Day's co-accused and fell, hitting his head on the kerb. He was then kicked by both of Mr Day's co-accused. Mr Day did not himself strike the victim but had fought with a friend of the victim at the scene. The court reduced his sentence from 5 years' imprisonment to 3 years and 9 months.[16]It can, we think, properly be argued that Mr Day's role was similar to that of the appellant in the present case: there was a joint enterprise to cause some harm and the appellant was, at the very least, encouraging that enterprise by his presence (even for a few seconds) during the attack on Mr Lobb. We also note in his written submissions that the appellant's counsel expressly accepted that this level of sentence was more in line with the authorities than that imposed by Judge Pert.[17]We have already noted that the appellant's role was significantly less than that of McGregor and Perry. In addition, save for one conviction of assault, dating back to March 2003, the appellant's previous convictions were of a relatively minor nature. In all those circumstances we propose to quash the sentence of 6 years' detention in this case and to replace it with a term of detention of 3 years and 6 months. To that extent therefore, this appeal against sentence is allowed.

Cited in 1 later judgment