Appleby, R v [2009] EWCA Crim 2693

[2009] EWCA Crim 2693Case No 2009/03832/A1 (1)2009/03971/A3 (2)2009/03972/A3 (3)2009/03836/A9 (4)2009/03838/A9 (5)
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TEESSIDE (1)
HIS HONOUR JUDGE FOX QC. RECORDER OF MIDDLESBOROUGH
ON APPEAL FROM THE CROWN COURT AT CAERNARFON (2)(3)
THE HON MR JUSTICE DAVIS
ON APPEAL FROM THE CROWN COURT AT NORWICH (4)(5)
THE HON MR JUSTICE SAUNDERS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2009
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESLORD JUSTICE THOMAS VICE PRESIDENT OF THE QUEENS BENCH DIVISIONLORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISIONMR JUSTICE SIMONMR JUSTICE ROYCE
Between
RAppellantAppleby (1)Respondent(Reference under section 36 of the Criminal Justice Act 1988)RespondentRRespondentBryan and Roberts (2)(3)RespondentCowles and Cowles (4)(5)RespondentR- v -Appleby (1)(Reference under section 36 of the Criminal Justice Act 1988) R-v-Bryan and Roberts (2)(3) R-v-Cowles and Cowles (4)(5)
Mr Andrew Edis QC for Attorney GeneralMr T D Roberts QC for Appleby (1)Mr Duncan Bould for Bryan (2)Mr J Duffy for Roberts (3)Mr Graham Parkins QC for Ben Cowles (4)Mr Michael Hubbard QC for Tom Cowles (5)Hearing Hearing dates : 3 rd December 2009
JudgmentThe Lord Chief Justice of England and Wales:
[1]These three cases were heard together. In each of them a man was killed. Two (Bryan and Roberts, and Cowles and Cowles) concern death resulting from violence in which no weapon was used and which, but for the death of the victim, would have been categorised as assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861, or inflicting grievous bodily harm contrary to section 20 of the 1861 Act, but without the intention required for the purposes of proving section 18. The third (Appleby) arises from a conviction for murder and the judge’s concern about the disparity between the sentence imposed on the defendant and that imposed on a co-accused who was convicted of manslaughter.[2]The starting point is that the maximum sentence available on conviction of assault occasioning actual bodily harm or inflicting grievous bodily harm contrary to section 20 of the 1861 Act is 5 years’ imprisonment: common assault is not triable on indictment, and the maximum penalty is 6 months’ imprisonment. The Crown Prosecution Service Charging Standard advises that minor injuries justify a charge of common assault, rather than assault occasioning actual bodily harm. They include grazes, scratches, abrasions, minor bruising and swellings, superficial cuts and reddening of the skin. Unlawful violence taking this relatively minor form can result in death and a conviction for manslaughter. The same Charging Standard identifies the kind of injuries which should lead to a charge of assault occasioning actual bodily harm. They include loss or breaking of a tooth or teeth, extensive or multiple bruising, displaced broken nose, minor fractures, temporary loss of sensory function, which may include loss of consciousness, and minor, but not superficial, cuts of a sort which might require medical attention in the form of stitching. Grievous bodily harm is concerned with serious injuries.[3]Cases like these sometimes arise in the course of a fight, frequently in the streets, often at night. Sometimes those involved in the fight are equally aggressive and behaving violently. Sometimes one will be using unlawful force and the other seeking only to defend himself. Sometimes they involve an unprovoked assault on an individual who is not fighting or looking for any trouble at all. Any of these incidents can end in death and they represent a significant number of the cases of manslaughter which come before the courts up and down the country. Taken together, these three cases provide the court with an opportunity to reconsider the approach to sentencing in cases of manslaughter when, notwithstanding that the defendant intended neither to kill nor to cause the deceased grievous bodily harm, he is convicted of manslaughter on the basis that the death was consequent on an act of unlawful violence. They are, of course, always tragic in their consequences, but they do not constitute murder, and they cannot be sentenced as if they were. If the defendant is convicted of manslaughter the consequences must be treated as if they were unintentional and unintended. The court must honour the verdict of the jury (if the jury convicts of manslaughter) or the plea to manslaughter accepted by the Crown (if that is the basis on which the case is prosecuted) yet, whether the case falls to be sentenced as murder or manslaughter, the catastrophic result for the deceased and his or her family is the same: the loss of a precious life. In each of these cases we have been made aware of the poignant, lamentable impact of the deaths of each victim on the families who are left behind to grieve.[4]It is a truism that each such case is different, but for many years now, when seeking guidance about the appropriate sentencing parameters, advocates representing the defendant frequently return to the decision of this court in R v Coleman [1992] 13 Cr. App. R (S) 508, this was a case in which death resulted from a single blow followed by a fall which “almost accidentally” resulted in the deceased sustaining a fractured skull. Analysing the judgment of Lord Lane CJ, it was clearly intended to be “strictly confined” to such a case, where the death was indeed almost accidental. A series of earlier cases was analysed, and they themselves reflected yet earlier decisions. It is perhaps sufficient for present purposes to acknowledge the analysis made nearly 40 years ago by Dr David Thomas on the approach of the court to manslaughter where an accidental death resulted from a minor assault in R v Mallett [1972] Crim LR 260. He suggested that the then current approach “to sentencing in manslaughter cases of this kind, where death is the wholly accidental result of an unlawful act of a relatively trivial nature, is to sentence the offender on the basis of the act he did and the consequences he intended”. That approach continued for many years and is perhaps conveniently summarised in the observations of Watkins LJ in R v Goodchild (unreported – August 12 1991 – made at virtually the same time as Coleman itself) where, following an argument, the deceased was struck with a clenched fist in the middle of his face and was knocked over, so that his head struck the kerbstone and his skull was fractured with fatal results. Watkins LJ said: “If one were to look at the matter from the point of view of the victim and his family, the temptation would be to sentence the person responsible for such a thing to imprisonment for a number of years. But this Court has said that that is not the way to look at the matter. Justice is not seen to be done in that way”.[5]This observation was quoted by Lord Lane CJ in his judgment in Coleman. It reflected the continuing well understood view that the defendant’s criminality was to be assessed in the context of his actions and his intentions at the time when the offence was committed rather than with its consequences. Indeed this remains one view which, in the context of identifying potential criminal liability for death rather than the sentencing process itself, was recently advanced by Mitchellin More thoughts about unlawful and dangerous act Manslaughter and the One-punch Killer [2009] Crim LR 502 where he said:
“Driving by its very nature is almost inevitably a highly dangerous activity, however careful and competent the driver. A single punch in the face of another person is inherently less dangerous and significantly less likely to cause serious harm. On the other hand, in contrast to driving it is, of course, unlawful, but that simply means that the puncher ought not to have thrown the punch; it does not provide a sufficient rationale for holding the puncher criminally liable for whatever consequences ensue.”
[6]This observation highlights the problem of equating the sentencing levels for offences of such a different character as death in the context of driving and unlawful act manslaughter: however the criminal liability for an unlawful act of violence resulting in death, even if it takes the form of a punch, is, as a matter of law, beyond argument, and encompassed in the crime of manslaughter. Later in this judgment we shall return to the legislative history of sentencing in driving offences which result in death.[7]Coleman itself was decided at a time when there was less public disquiet about violent behaviour and death in town and city centres and residential streets than there is now. It did not involve an attack by more than one participant. At that time, the assessment of the tariff to represent the punitive and deterrent element following conviction for murder (now the minimum term) was lower than it is now. The structure of sentences as part custody and part licence was in its infancy and there did not exist the statutory contrast now prevailing between determinate sentences and minimum terms attached to life sentences. Finally, the expression “starting point” was used in Coleman to mean “lowest point” (and after a guilty plea) whereas those words have now acquired a quite different meaning both in the decisions of this court and in the work of the Sentencing Guidelines Council.[8]Following Coleman, a long line of fact specific decisions has come, for reasons of convenience and shorthand, to be subsumed in the generic description, “one punch manslaughter”. This description is apt to mislead unless it is indeed “strictly confined” to cases where death results from a single blow with a bare hand or fist. Within that confined ambit a further distinction must be drawn arising from the force used by the offender himself. This can vary from an almost half-hearted blow which would be unlikely to topple over many victims of such a blow, or produce more than a minor bruise or small reddening of the skin, to a blow administered with the offender’s full force which, irrespective of any fall or secondary impact, itself caused fatal injury. This reality was identified in Harrison [1996] 2 Cr. App. R (S) 250, “A blow sufficient to fracture an egg-shell skull is very much less culpable than one which fractures a normal skull. An unlucky punch in the course of a spontaneous fight is very different from a wholly unprovoked blow to an innocent bystander”. And a yet further distinction sometimes arises from the fact that the fatal injury itself can properly be treated as a very unlikely consequence of a single punch, virtually or almost accidental in the sense identified in Coleman. That proposition, recently underlined in R v Furby [2006] Cr. App. R (S) 8, was plainly re-echoing the approach in Coleman that the death was “almost accidental”.[9]In Furby itself no less than 19 decisions of this court made after Coleman, and in the light of the observations in that case, were analysed. They were not “all easy to reconcile”, and the court was not invited to reflect on any of the broader considerations which might arise in the context of changed approaches to sentencing since Coleman itself was decided, when attention focussed on the actions of the defendant and his intentions at the time of the crime rather than its consequences.[10]The essential feature of Furby arose from its particular facts. And from an analysis of the facts, it is readily understood why the court turned to the guidance offered in Coleman. Furby was a decent young man. His close friend was unduly sexually familiar with Furby’s partner, and she protested violently and physically. Furby struck his friend a single moderate blow to the face. A combination of unusual circumstances produced a subarachnoid haemorrhage, and the friend collapsed and died. The defendant immediately went to his assistance, trying mouth to mouth resuscitation. In the result, there was nothing he could do for him. His remorse was total. He was charged with manslaughter, and he pleaded guilty at the first available opportunity. He was sentenced to 2½ years’ imprisonment. On appeal it was reduced to 12 months.[11]It is perhaps worth underlining that the defendant’s partner, not without justification, had been no less violent in her response to the deceased than the defendant himself. She later admitted that she had assaulted the deceased. She was dealt with by way of a caution. But for the death, and recognising the huge unlikelihood that the deceased would have reported the punch administered to him by the defendant in the circumstances if he had survived, it is unlikely that Furby would have been treated any more severely than his partner. Furby continues to provide valuable assistance of the approach of the court to extreme cases where a single punch, in circumstances where, although unlawful, the delivery of a punch is understandable, a merciful course is appropriate. It is a true “one punch manslaughter” case where, acting under provocation, in his own home, a defendant offered a single punch which, but for the death, would have amounted to no more than a common assault within the Crown Prosecution Service Charging Standard, or at the very worst, an assault occasioning very minor bodily harm, and in which the death was not only unintended, but effectively a true accident arising from an unfortunate and unusual combination of circumstances”[12]Without seeking to undermine or diminish the value of Furby as a continuing example of a case of manslaughter at the very lowest level of seriousness, it was decided shortly after legislative changes in the Criminal Justice Act 2003, but, so far as we can see, without their possible impact being addressed. Quite apart from the changes, (to which we shall shortly come) an additional feature of manslaughter cases which has come to be seen as a significant aggravating feature of any such case is the public impact of violence on the streets, whether in city centres, or residential areas. Each of these three cases involved such public violence. Specific attention should be paid to the problem of gratuitous violence in city centres and the streets. (R v Miah [2005] EWCA Crim 1798). Furby was not such a case: the manslaughter cases with which we are concerned involved gratuitous, unprovoked violence in the streets of the kind which seriously discourages law-abiding citizens from walking their streets, particularly at night, and gives the city and town centres over to the kind of drunken yobbery with which we have become familiar, and a worried perception among decent citizens that it is not safe to walk the streets at night.[13]The sequence of decisions of which Coleman provided authoritative guidance was based on a formulation of the approach of the courts to sentencing that is no longer appropriate. What is now required, without of course diminishing the attention to be paid to the actions of the defendant and his intentions at the time, and the true level of his culpability, is that specific attention must also be paid to the consequences of his crime. The question which has not yet been addressed, and which now falls to be addressed, is the impact of recent criminal justice legislation.[14]Section 143(1) of the Criminal Justice Act 2003 focussed significant importance in the sentencing process on the consequences of every offence. “In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused”. This statutory provision was new. It expressly required that both the offender’s culpability and the consequences, actual or potential, intended or foreseen, of the crime should be expressly addressed in the sentencing decision. In manslaughter culpability may be relatively low, but the harm caused is always at the highest level.[15]The further effect of the Criminal Justice Act 2003 has been to increase the punitive element in the sentence for murder. The determination of the minimum term to be served when a mandatory life sentence is imposed is addressed in schedule 21. The schedule is now familiar and we need not recite its provisions. However as the court observed in R v Wood [2009] EWCA Crim 651 (a case of manslaughter on the grounds of diminished responsibility): “There is no express statutory link between the guidance in schedule 21 of the 2003 Act and the principles to be applied to sentencing decisions in diminished responsibility manslaughter…accordingly when the sentencing court is assessing the seriousness of the offence with a view to fixing the minimum term, we can discern no logical reason why, subject to the specific element of reduced culpability inherent in the offence, the assessment of the seriousness of the instant offence of diminished responsibility manslaughter should ignore the guidance. Indeed we suggest that the link is plain”.[16]The judgment went on to underline the striking feature of schedule 21 that the suggested levels of sentence represented the time actually to be served in custody, and that a 30 year minimum term was therefore equivalent to a 60 year determinate sentence, and a 15 year term equivalent to the 30 year determinate sentence. The judgment continued:
“This reality cannot be ignored, and a vast disproportion between sentences for murder and the sentences for offences of manslaughter which sometimes come very close to murder would be inimical to the administration of justice”
. None of the foregoing means that there is or should be any direct arithmetical connection between the sentences for murder addressed in schedule 1 and the terms imposed for manslaughter. On the contrary, Parliament has clearly preserved the vital distinction between murder and manslaughter. The problem of the disparity between the two arises directly in the context of Appleby.[17]For the purposes of unlawful act manslaughter the defendant’s culpability is reduced by the fact that he lacked the intention necessary to found a conviction for murder. He used unlawful violence, but without intending death or really serious harm. On the basis that this represents reduced culpability, the result is a conviction for homicide in the form of manslaughter rather than murder. The culpability of the defendant convicted of manslaughter on the basis of diminished responsibility is also reduced, but for a different reason, that his responsibility for his actions at the time of the killing was substantially reduced, so that although he may intend to kill or do really serious harm, the offence is manslaughter, not murder.[18]None of the present cases involve manslaughter on the basis of diminished responsibility, nor indeed provocation. No further guidance has been issued in relation to diminished responsibility manslaughter, and the likelihood is that R v Wood provides sentencing judges with such assistance as they may need. In November 2005 the Sentencing Guidelines Council issued its definitive guideline for manslaughter on the grounds of provocation. This guideline was the culmination of work by the Sentencing Advisory Panel and the Sentencing Guidelines Council itself which began before the Criminal Justice Act 2003 was brought into force. Nevertheless the Sentencing Guidelines Council was plainly aware of and referred to the 2003 Act. Our broad impression is that the guidance now offered to sentencing courts represents an increased level of sentencing from that which would have been familiar in, say, 2000, and certainly at the time when Coleman was decided.[19]The Attempted Murder Guidance was issued by the Sentencing Guidelines Council in July 2009. It was intended to provide an express link between the sentencing guidance in schedule 21 of the 2003 Act and offences of attempted murder. Where attempted murder is proved the level of culpability is always very high: it involves a proved intention to kill. Accordingly, although the level of actual harm may be and sometimes is minimal, the intended harm was death. Every case is always fact specific but where attempted murder is proved and serious and long term physical or psychological harm has been caused to the victim, the relevant starting points are 15 years, 20 years, and 30 years. These are not minimum terms, but determinate sentences, and the offender will serve half the sentence. In attempted murder the level of culpability will always be at the highest possible level whereas in unlawful act manslaughter, just because the prosecution has not proved an intention to cause grievous bodily harm, let alone an intention to kill, the level of culpability will be lower.[20]Mention should be made of death on the road which, sadly, is all too familiar. The maximum sentence for causing death by dangerous driving has been steadily increased over the years from 2 years’ imprisonment, by gradual stages to its present level at 14 years’ imprisonment. During this process, offences of causing death by driving under the influence of alcohol or drugs, and causing death by careless or inconsiderate driving, or by driving uninsured, unlicensed or disqualified have been created. The creation of an offence of causing death by careless or inconsiderate driving is of particular significance. For many years it has been a summary offence to drive without due care and attention or without due consideration. The fact that death occurred as a result was irrelevant to the offence, which remained triable summarily. Where death has occurred in consequence of such driving, the offence is now triable on indictment and subject to a maximum sentence of imprisonment for 5 years. It is very rare indeed for negligence (not gross negligence) to form the basis for criminal liability. Yet that is what this offence does. At the same time the offence of dangerous driving (but without death resulting) remains subject to a longstanding maximum sentence of 2 years’ imprisonment. Yet in such cases the driving itself, viewed objectively as dangerous driving, is more culpable than the negligent driving encompassed by careless driving. In other words, in road traffic crime the legislative process has directed great importance to the consequence of the driving, whether dangerous or careless.[21]Returning to unlawful act manslaughter, neither of the Sentencing Guideline Council Definitive Guidelines is directly analogous, nor indeed for that matter, are the considerations identified in relation to diminished responsibility manslaughter in R v Wood or those applicable to deaths on the road. However, taken altogether the recent changes in the legislative structures during the last few years lead to the inevitable conclusion, as described in R v Wood:
“Parliament’s intention it seems is clear: crimes which result in death should be treated more seriously and dealt with more severely than before.”
[22]That conclusion has not yet been directly addressed in relation to unlawful act manslaughter. There are, literally, dozens and dozens of sentencing decisions in unlawful act manslaughter cases to be found in the Criminal Appeal Sentencing Reports and dozens more which are not dignified with presence in these reports, but which are nevertheless cited from time to time. The decisions which we have examined are set out in an Annex to this judgment. For the future we doubt the value of reference to any sentencing decisions prior to Furby itself. Furby provides an illuminating example of facts which demonstrate that a sentence at the lower end of the scale may be appropriate. If it is necessary to examine any sentencing decisions prior to Furby, and indeed prior to this judgment, they should be examined with the clear understanding that none of the decisions we have seen, and each member of the court has studied a good many more sentencing decisions than those cited to us, has proceeded on the basis which we have now addressed, that crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in schedule 21 of the 2003 Act, but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight. It is with these considerations in mind that we have approached these individual cases, and they will, we anticipate, provide sentencing courts with some assistance about the way in which these difficult sentencing decisions should be approached in future.[23]We should add, by way of footnote, that in two of these three cases the court was able to observe CCTV footage of crucial parts of the relevant incidents of violence. Where the footage is available, it should always be studied closely. It conveys much more of the reality of the incident and its accompanying violence than words alone.

R v Appleby

[24]This is a reference by HM Attorney General under section 36 of the Criminal Justice Act 1988 of the sentence imposed by His Honour Judge Fox QC, Recorder of Middlesbrough, sitting in the Crown Court at Teesside on Declan Appleby.[25]Appleby is 19 years old. He was born in July 1990. He has previous convictions for offences of violence.[26]On 11 August 2008 he was convicted of murder. On 26 June 2009 he was sentenced to be detained during Her Majesty’s pleasure, with a minimum term assessed at 9 years. A few days later, on 3 July, the sentence was varied and the minimum term reduced to 6 years.[27]Appleby was jointly tried with another man of similar age, Scott Fullam. In his case the jury was unable to agree its verdict. The prosecution decided that there should be a re-trial but on 23 February 2009 Fullam pleaded guilty to manslaughter. His plea was accepted by the Crown. On 26 June he was sentenced to 2½ years’ detention at a young offender institution. An application for leave to refer this sentence to the court was withdrawn.[28]The facts of the offence can be taken from the summary itself. Ronald Sharples was 52 years old, a married man, living with his wife, a “total family man”. On 31 December 2007, together with his wife, and some friends and family he went out for the evening. They were all celebrating the arrival of New Year. The deceased and his wife returned home shortly before midnight. Once home, they lit celebratory fireworks in the garden. The noise of the fireworks startled their dog which ran out into the street. The deceased went to find the dog, accompanied by his wife and one of their friends, Angie McGee. Eventually the dog was found, and at about 2.00am they were making their way home. Their route took them through a residential street, Inglewood Avenue, by an unhappy coincidence both Appleby and Fullam, and another young man, Ruecroft, were on their way to a party in the vicinity. They had been drinking heavily. Ruecroft himself played no part in subsequent events.[29]The precise sequence of events is not entirely clear, and the reason why the trouble began is equally uncertain. It is evident however that Angie McGee described the group of young men as “chavs” and that Fullam reacted aggressively to the perceived insult. The deceased tried to restrain Fullam and calm things down. He was punched in the stomach by Fullam and fell into the garden of an adjacent house. Neither the prosecution nor the defence suggested that the deceased had been acting in an aggressive way, or that Fullam punched him in self defence.[30]Unsurprisingly, the wife of the deceased went to summon help from her nearby home. But in the meantime, the deceased himself got to his feet, whereupon Appleby delivered a martial arts type of high kick to the upper part of his body, probably to his neck. Fullam followed that up by delivering a push or a punch to the deceased. It is not entirely clear whether the push or punch by Fullam preceded the martial arts kick, or whether they were simultaneously delivered, or whether it came afterwards. The suggestion on Appleby’s behalf was that it was the last blow. If so it came after the deceased was already effectively rendered defenceless by Appleby’s kick. The deceased fell to the ground, landing forcefully, and striking the back of his head on the pavement. He suffered a fractured skull and irreversible brain damage. He was pronounced dead at 3.00am on 1st January 2008. Apart from the fracture of the skull, specific areas of important further injury were noted. They included an injury to the right eyelid and cheek with fragmentation of the underlying bone, associated by the pathologist with a punch, or more likely, a kick or stamp, a fracture of the laryngeal cartilage, which would have required a forceful blow, again more likely to be administered by a kick rather than a punch, and an injury to the left cheek as well as bruising and abrasions to the face.[31]The police came to the scene. Despite the attempts by a police officer to detain them, both offenders ran away. Later that day they attended the police station. They were arrested. The account then given by Appleby was that he was walking ahead of Fullam, when he turned to see the deceased holding Fullam by the throat. So he went to help, and in fear that he would be punched by the deceased, he threw the first punch, asserting that it was not a “proper punch”. He left the scene because there were parties to attend, and he “didn’t fancy being locked up at New Year”. This account was not sustained by Appleby, who did not give evidence at his trial.[32]Fullam’s account to the police was that he was grabbed by the throat by the deceased, and that Appleby came to his rescue. Two more men arrived at the scene, one of whom punched him, and then a policeman dived on him. He admitted pushing the deceased. He asserted that he had not seen Appleby kick him, nor indeed seen the deceased fall to the ground.[33]Despite his youth, Appleby’s convictions included inflicting grievous bodily harm contrary to section 20, assault occasioning actual bodily harm in September 2006, and battery in November 2007 which led to the imposition of a community punishment order and a community rehabilitation order with a curfew restriction. That order was in force at the time when this offence was committed.[34]In mitigation on behalf of Appleby, it was not suggested that he had been acting in self-defence, nor indeed in defence of his friend. The attention of the judge was focussed on schedule 21 to the 2003 Act, and the certain fact that the offender was aged under 18 when he committed the offence. The starting point would therefore be a determinate period of 12 years, and there was no intention to kill, nor any planning or pre-meditation. It was suggested that this was a chance encounter, and that the direct cause of the fatal injury to the deceased, was the push or punch administered by Fullam. No suggestion of self-defence, nor indeed any criticism of the actions of the deceased was advanced.[35]In his sentencing remarks the Recorder explained that the situation was confused and confusing, but that the conclusion of the jury was that this offender “whether with a high kick or some other blow” intended that the deceased should suffer really serious physical harm. He then said, “Now, whether it was your high kick or other blow, Appleby, which indirectly caused Mr Sharples death, for the immediate cause was his head striking the pavement, or whether it was your push, Fullam, cannot be confidently ascertained. It was one or the other but it would be wrong, therefore, to say it must have been the one or the other as against either of you and that must be a significant factor in determining your sentence, but this was physical violence, it was in a public place, it was some kind of retaliation from what had gone on at an earlier stage some 50 yards or more back from the junction where the fatal blow was delivered.”[36]Those observations are criticised on behalf of the Attorney General as failing, so far as this offender was concerned, sufficiently to reflect the verdict of the jury that he was guilty of murder.[37]The judge accepted that there was no intention to kill. He took note of the offender’s youth and the degree of remorse he had exhibited. He prescribed a minimum term of 9 years. Fullam was sentenced to 2½ years’ detention in a young offender institution for manslaughter, on the basis of delivering a push in the course of a “retaliatory incident which was joint with Appleby”, the judge observing that the decision varied from case to case.[38]The case of Appleby was restored to the list because it continued to give the Recorder a measure of “disquiet”. He reflected on Appleby’s youth, 17 years at the time of the murder. He then added that he “retaliated after, as I see it, you had defended the much smaller Fullam from the deceased’s unlawful and unprovoked violence”. This was a new finding, and in view of the absence of mitigation on this basis, a surprising one.[39]The judge then addressed a different point that is the disparity in the sentence between the offender and Fullam. “As matters presently stand, the disparity between you and Fullam is of the order of a factor or more than seven, which in my judgment, upon reflection, is grossly disproportionate on the facts of the case and in the personal circumstances of each of you”. That indeed was accurate, Fullam would serve 15 months, and as things then stood, Appleby would serve at least 9 years. On the basis of both these considerations the minimum term was reduced from 9 years to 6 years.[40]The first question was whether there was any basis for the judge’s conclusion that the deceased had behaved aggressively. The prosecution case from start to finish was that neither of the defendants was acting in any way “analogous to self-defence”, and the jury was told that there would be no such suggestion pursued by either defendant. Although Fullam gave some evidence at trial suggestive of possible self-defence, by the date of sentence, he had accepted, by his guilty plea, that he himself had been acting unlawfully. It had never been suggested that the deceased had misconducted himself in any way or contributed to the events which culminated in his death. What is more, the judge had said nothing in his original sentencing remarks to suggest that any such question might arise. There was no justification for any reduction in sentence on the basis of the actions of the deceased.[41]The harsh reality of the second feature troubling the judge is that the two offenders had been convicted of different offences, Appleby of murder, Fullam of manslaughter. The absence of certainty about which of the two men struck the blow which produced the fatal injury was irrelevant to the sentencing of this offender, who had participated in violence with, as the jury found, murderous intent. The jury was unable to agree whether that intent had been proved in the case of Fullam. The likely view is that they were satisfied that Appleby had delivered his kick with an intention to cause very serious injury, and that they were satisfied that the deceased’s death was the culmination of a violent joint enterprise in which Appleby intended that the deceased should suffer really serious injury. As to Fullam’s intention, they could not agree.[42]In the end, the judge had to sentence Appleby on the basis that he was involved in a murderous attack whereas Fullam had to be dealt with on the basis that he was not. In sentencing terms this inevitably produced a wide disparity of sentence. The starting point in the case of this offender was a minimum term of 12 years, which was reduced to this figure just because of his youth. That said, notwithstanding his youth, he had already accumulated a serious record for violent offending. No reference was made to this feature of the case by the judge, and it had at the very least, to be put in the balance against the fact of the offender’s youth. The offender was criminally responsible for the death of the deceased. If his blow did not directly topple him on to the ground where his head suffered a direct impact, his violence had already rendered the deceased defenceless, and hopelessly vulnerable to any further violence which he might suffer. And, putting it in stark terms, the deceased was on his own, being attacked in the street by two young men.[43]It may be that Fullam was fortunate in the sentence imposed on him. It may be that with the guidance offered in this judgment, the judge would have imposed a longer sentence on him. But the disparity which concerned the judge was consequent on the verdict of the jury in the offender’s case, and the decision of the prosecution to accept a plea of guilty to manslaughter in the case of Fullam.[44]We are satisfied that this sentence was unduly lenient. In reconsidering it, we have concluded that a minimum term of 9 years would have been the absolute minimum appropriate sentence, and that a longer sentence than 9 years would have been within the appropriate range. Given, however, that this will be the third occasion when the sentence on the offender has been considered, we have concluded that justice will be done in this case by increasing the 6 year minimum term to one of 9 years. R v Bryan and Roberts[45]This is a reference under section 36 of the Criminal Justice Act 1988 by HM Attorney General of the sentences imposed on these offenders by Mr Justice Davis sitting in Caernarfon Crown Court on 3 July 2009 following their conviction for manslaughter.[46]Thomas Bryan is 46 years old. Peter Roberts is 37 years old. Both are men of good character. Both were indicted for the manslaughter of Jonathan Bennett. Bryan pleaded guilty of 3 April 2009 at the PCMH. Roberts pleaded not guilty. He was convicted by the jury on 19 June 2009. On 3 July Bryan was sentenced to 3 years’ imprisonment, and Roberts to 18 months’ imprisonment. An appropriate order was made in relation to time spent on remand. Roberts has now completed his sentence.[47]This was yet another case of a death caused by violence in the street. Just before 2am on 1 February 2009 the deceased and Bryan were involved in an incident at a nightclub in Rhyl. During this incident both men grappled with each other, and after it was over, each said that the other had punched him. Bryan was ejected directly by staff on duty at the nightclub. The deceased was taken to the ground by Roberts, and he was then ejected by staff. No injuries were seen on any of the three men.[48]Having considered the evidence the judge approached the case on the basis that the deceased, not Bryan, had started this first altercation, and that Roberts had done his best to break it up. At that stage there was nothing unusually troublesome about the incident, the situation had been calmed and resolved, and that should have been an end of any trouble.[49]In due course the deceased returned to the premises and started talking to one of the doormen. He was not seeking permission to return into the premises, but merely checking against the possibility that he might be refused entry at some future date because of his involvement in that incident. Certainly, at that stage, he was not causing any trouble, and the earlier incident appeared to be closed.[50]Events thereafter were captured on CCTV footage. It provides formidable evidence against the offenders, and we have examined it on a number of occasions to ensure that we have the most accurate possible understanding of what happened. Bryan and Roberts walked aggressively up the street towards the club entrance. In addition to door staff and the deceased himself, a group of people were congregated in the area. The video does not show, but a witness described Roberts pointing the deceased out to Bryan saying, “that’s him there”, or “there he is, there”. The two offenders went towards the left of the crowd, and then approached the deceased from his left and from behind. Roberts moved one or two individuals out of the way, thus clearing a space for Bryan. From behind, and without warning, when the deceased was defenceless and totally unaware of what was happening, Bryan struck him with two blows to the head, using his clenched fist. The first blow was struck with what appears to be Bryan’s full force, and the deceased stumbled helplessly forward before he was struck a second vicious blow. He fell to the ground, making no attempt to break his fall. The evidence suggested that he was already unconscious. His head struck the ground, and his skull was fractured.[51]Although some door staff took hold of Bryan, Roberts assisted him, and both were then allowed to leave. The video shows that as they left the scene, Roberts was patting Bryan on the back in what can only be described as congratulation.[52]The deceased was taken to hospital. He died without regaining consciousness on 13th February. He was 40 years old.[53]The two men were arrested at 2.05 in the town centre. Both seemed calm. Neither appeared to be affected by drink, and because Bryan had put on his spectacles, his description did not fit that of the man who punched the deceased. Indeed at that stage the two offenders asserted they had come from another bar altogether. However checking the CCTV it became apparent that Bryan had punched the deceased, and he was arrested, Roberts saying, “I think you have got the wrong guys”. His details were taken and he was allowed to leave.[54]In due course Bryan was interviewed. He had no comment to make. Before the deceased had died, Bryan was charged with causing grievous bodily harm with intent and observed that he did not “intend to cause anybody any serious harm”. He was then remanded in custody. After the deceased’s death he was re-interviewed. He said that he had been punched twice in the nightclub during the first incident, and that these punches were unprovoked. He said that he had returned to the club after being ejected in order to find a friend, and that when he saw the deceased he feared that he would be attacked again, so he punched him twice. He described the incident as tragic. He was charged with manslaughter. In due course he put forward a basis of plea document asserting that he had struck out in fear and without aiming his punches. He accepted that this was unlawful. This basis of plea was not accepted by the Crown. Bryan abandoned it after Roberts was convicted by the jury. The basis of plea bore no approximation to the incident seen on the CCTV.[55]Roberts was arrested on 1st February on suspicion of assault. He said he had nothing to add to the CCTV footage. He said that what happened to the deceased was terrible, but that he was not responsible for it. He had no comment to make. After the death of the deceased he was arrested again and further interviewed. He said that neither he nor Bryan had been concerned about the first incident, which he described as trivial. He said that they had gone back to the door after Bryan had been ejected to see their friends. He was aware that Bryan had punched the deceased, but he did not know whether it was provoked or not, as it all happened so quickly. He denied pushing anyone out of the way to help Bryan to attack the deceased, and said that, if he had indeed patted Bryan on the back after the incident, this was simply “to get him out of there”. Again, the CCTV footage contradicts that account.[56]As we have already indicated, both offenders were effectively men of good character, supported by a number of positive references. The author of the pre-sentence report recorded that Bryan had demonstrated considerable remorse over these events, asserting that he was devastated by what had happened and that he felt deeply for the distress of the deceased family. Roberts told the author of the pre-sentence report that although he respected the verdict of the jury he did not accept responsibility for the deceased’s death. However, a report prepared following his release from custody on 3 November 2009 described him as “very aware of the impact of his actions, especially on the victim’s family, on the community and his own family” and indicated that he accepted full responsibility for his actions. The court has been supplied with a letter from Roberts, and indeed his wife. We have read them both with care. Once again he describes “the deepest remorse and regret” that he feels.[57]In his sentencing remarks, in an assessment which coincides with our own, the judge described the blows delivered by Bryan, who had received training in boxing as a young man, as “ferocious blows administered from behind without warning, so ferocious that he was unconscious before he hit the ground”. He noted how both offenders had “sauntered off, congratulating each other on what they had done” while their victim was lying unconscious on the ground.[58]The judge had in mind that both offenders were decent men of previous good character, and that, in accordance with their convictions for manslaughter, the harm suffered by the deceased was not foreseen or intended. Although Bryan bore the major responsibility, he had pleaded guilty at the PCMH. Full credit was given to him for the guilty plea. As to Roberts, during the first incident he had been a peacemaker, and during the violent second incident, he had struck no direct blows himself, although he had cleared the path to enable Bryan to do so.[59]The contention is that the sentences on both offenders failed sufficiently to reflect the seriousness of the offence, the culpability of each offender, as well as the consequent harm.[60]This is not properly described as a “one punch manslaughter”. This is not merely because two blows rather than one were struck. Although very briefly pre-meditated, this was a deliberate unlawful attack by two men on one victim who was struck from behind when he was unable to defend himself. In using force Bryan intended at the least that the deceased should be knocked to the ground. The risk of serious harm was obvious. All this happened with the approval and support of Roberts. Both men intended that, at the very least, a significant measure of actual bodily harm would be caused.[61]On behalf of the offenders, our attention was drawn to the earlier incident, with particular emphasis, on Roberts' behalf, to his role as peacemaker. The joint enterprise itself came into existence very late, and the incident itself was over in less than 10 seconds. The sentences therefore were within the appropriate range, and not open to criticism. The allowance for the guilty plea was a matter for judicial discretion. In the case of Roberts, our attention was focussed on the fact that he had been released from prison, and found employment, and that these considerations were embraced within the concept of “double jeopardy” which applied in both cases.[62]This was an assault in the street, in effect, a revenge or retaliatory attack, for what had happened earlier. In any event, this was not a case in which full credit should have been given to Bryan for his guilty plea. The case was indeed overwhelming, and the original basis of plea, as advanced in writing, was false. So effectively, he pleaded guilty at the door of the court in an overwhelming case. As to Roberts, he was indeed a secondary offender, but his culpability was significant, not least because he assisted to clear the path for Bryan’s violence. He had pleaded not guilty, and there could be no discount on that basis.[63]Our conclusion is that, even if Bryan’s violence had ended with the first ferocious punch to the back of the victim’s head, so that it could (literally) be described as a “one punch manslaughter” case, that blow was administered in retaliation or revenge, that it was done quite deliberately, and was intended to cause actual bodily harm significantly beyond the trivial. As it was his violence did not end with a single punch. It was followed up with a second heavy blow, intended to ensure that he was knocked to the ground. For both men therefore the level of culpability was high with real (albeit not serious) harm intended; the actual harm was, of course, catastrophic.[64]In our judgment the sentences were unduly lenient. The discount allowed for the guilty plea in Bryan’s case was over generous, and none was due to Roberts who contested his guilt.[65]We acknowledge the good character of both men, and the supporting references. We are also content to accept that the remorse of both is genuine, and there is a measure of insight by both offenders into the impact of this crime on the families of the victim. In both cases, but the case of Roberts in particular, we make allowance for double jeopardy. Nevertheless in the case of Bryan the sentence will be increased to 5 years’ imprisonment, and in the case of Roberts to 3½ years’ imprisonment. Roberts will report to the police station at … within 24 hours and not later than 12.30 pm, to continue his sentence. R v Ben Cowles and Tom Cowles[66]On 9 June 2009 in the Crown Court at Norwich before Saunders J Ben Cowles pleaded guilty to assault occasioning actual bodily harm (count 1) and he and Tom Cowles pleaded guilty to affray (count 3) and manslaughter (count 5). The manslaughter counts were alternative to murder. The murder count was ordered to remain on the file.[67]On 26 June 2009 Ben Cowles was sentenced to 2 years’ imprisonment on counts 1 and count 3 and 7 years 6 months imprisonment on count 5, all sentences to run concurrently. Tom Cowles was sentenced to 2 years’ imprisonment on count 3 and 7 years’ imprisonment concurrent on count 5. Appropriate orders under section 240 of the Criminal Justice Act 2003 in relation to time already spent in custody were made.[68]The applications for leave to appeal against sentence were referred to the full court by the Registrar. In view of the broad issues addressed in this judgment leave to appeal against sentence is granted.[69]This was yet another incident of serious public violence, on this occasion taking place in the early hours of 28 September 2008 close by the Guildhall in the heart of Norwich.[70]Frank McGarahan, his brother Kevin, and their cousin Sean Ryan were out and about the city centre celebrating a family occasion. By 3.00am they were at a taxi rank peaceably waiting to go home. By the end of the incident with which we are concerned, all three were subjected to violence and ended up on the ground. Tragically Frank McGarahan sustained fatal injuries.[71]The start of the trouble which culminated in his death began a little earlier. Both appellants, and a group of friends, in total 7 people, had been out drinking during the evening. At about 3.00am they, too, were heading towards the taxi rank.[72]Another small group consisting of Robertas Sinkevicius, his partner and her teenage son, were also about in the area. They were on their way to an all night shop. As they made their way up the street they were subjected to aggressive verbal abuse and a confrontation ensued. During this confrontation Ben Cowles assaulted Sinkevicius, forcing him back into some fencing, and attacking him with fists and knees. Sinkevicius was taking a beating when he was defenceless. A witness spoke out in an endeavour to stop the attack, but the response he received was “what? Do you want some?”.[73]The incident was seen and heard by those at the taxi rank, including the deceased and the members of his family. They decided to leave the taxi rank to intervene and stop the violence and to protect Sinkevicius from further assault. Looked at from the point of view of the deceased and his family, what appeared to them was not a fight between two men, but an attack by a group of men on one man. It was suggested that the incident had already ended by the time they came over to the scene. But at the time it was far from clear that Sinkevicius was safe from further attack. In our judgment, looking at the CCTV footage the intervention was justified as well as courageous. The deceased and the members of his family were not looking for a fight. Indeed at one stage the deceased stood back from the scene and lit a cigarette, a clear indication that he was seeking not to fight, but to restore calm to the area.[74]The incident which then followed is clearly visible in CCTV footage which we have studied. The CCTV footage itself demonstrates the nature of the violence which was then perpetrated, also underlines the accuracy of the judge’s summary of it in his sentencing remarks. The footage is silent, and for what was said at the scene, the court, like the judge, is dependent on the evidence of nearby witnesses.[75]There is no doubt that the deceased and his brother and cousin approached the area shouting out in robust terms words to the effect of “what’s happening here?” and saying “Leave the guy alone. That’s out of order”. One of those in the appellant’s group shouted out that Sinkevicius had got what he deserved, and others moved away. The deceased called them cowards and told them they should be ashamed at “having a go at a guy on his own”. The response was that he should “Fuck off” or he would get the same. And with that these appellants and one of their group, Daniel Moy, who was dealt with in the Magistrates court for affray, attacked the deceased and his companions.[76]Ben Cowles started the violence. He ran towards Frank McGarahan’s group from some distance away and without warning punched him heavily to the head. It was suggested that Ben Cowles acted as he did as a form of self-defence, to pre-empt an attack which he thought that the deceased and his group were about to launch on him and his brother and their companions. However the CCTV footage demonstrates beyond doubt that when he started the violence he was not intending to defend either himself or his brother or anyone else. He was the aggressor. After he had knocked the deceased off balance he turned his attention to Kevin McGarahan and punched him to the head. In the meantime Tom Cowles grabbed Frank McGarahan in what the judge rightly described as a “vicious”, sustained headlock, and holding him defenceless, Tom Cowles punched the deceased in the face repeatedly with his spare hand while wrenching his head back at the same time. At least 6 punches landed on the deceased’s face. In the meantime Ben Cowles turned his attention to Kevin McGarahan punching him to the head and grabbing him by the eye, and Daniel Moy attacked Sean Ryan and punched him to the head and knocked him over. Frank McGarahan staggered and fell to the ground, and he did manage to get up to his feet, but as he did so he received another fierce blow to the head, and on this occasion he went down, effectively pole axed, and never got up again. In the meantime Tom Cowles delivered a powerful punch to the head of Kevin McGarahan, and after Ben Cowles had delivered the final blow to Frank McGarahan, he punched Sean Ryan and knocked him out and then punched Kevin McGarahan again to the back of the head.[77]The applicants and their companions fled the scene. The deceased and Sean Ryan were left lying motionless on the ground. Sean Ryan eventually came round, but Frank McGarahan never regained consciousness. He was rushed to hospital but despite every effort, he died.[78]The cause of death was a rupture of the right vertical artery at the base of the skull which led to bleeding and loss of oxygen to the brain. It was not possible to identify the precise moment when the rupture occurred, nor indeed the precise blow or the extent of the force which caused the final tear. The original post mortem report recorded that it was not possible to exclude beyond reasonable doubt the possibility that the first blow caused the tear in the artery, but the injury lacked the “classical appearance” seen when tears occur as a result of punches. It added “…it is more likely that the tear occurred during the headlock as the degree of force applied around the neck has already been shown to be significant, owing to the fracture of the horns”. This was a reference to the other injuries noted at post mortem. There were no less than 24 marks of injury to the head and body, consistent with the sort of blows and man handling sustained by the deceased as shown on the CCTV footage. There were abrasions, bruising, swellings to the face, bruises to the right arm, abrasions to the left arm and bruising and abrasions to the right and left knees as well as a swelling to the back of the left side of the head. There was also internal damage to the neck area with bruising to the muscle of the neck below the angles of both jaws together with the fracturing of the superior horn to the thyroidal cartilage and fractures of both the left and right horns. Fractures like these are frequently noted following forceable strangulation, and although the pressure in this area would not of itself have been fatal and did not contribute directly to the death of the deceased, it provides a very clear indication of the nature of the force applied to his head and neck during the time when he was subject to a headlock, when, as we have already noted, he was also being repeatedly punched to the face.[79]Kevin McGarahan suffered a soft tissue injury to his neck, his back and bruising to his left eye. When Sean Ryan recovered consciousness he had a cut to his upper lip which was later stitched. Sinkevicius also suffered injuries. There were small cuts to the right side of his face. His right eye was blackened, and there was swelling and bruising above the left eye, swelling to the left side of the back of his head and the front of his left shoulder.[80]The injuries sustained by the others obviously bear no relationship to the death of Frank McGarahan, but they do serve to underline the serious nature of the incident and the extent of the violence offered by the appellants that night. If Frank McGarahan had survived the attack, the appellants had still involved themselves in a nasty sustained incident of public violence in which they were the aggressors.[81]Three days later the appellants handed themselves into the police. They were arrested. In interview they asserted that they had acted in self-defence, seeking to blame the victims, and maintaining that they had done nothing aggressive or wrong. This was the stance adopted in their defence case statements served three weeks before they were due to be tried for murder. In the event, their pleas of guilty to manslaughter, together with the remaining offences of violence, were tendered and accepted by the Crown.[82]In the mitigation advanced on behalf of the appellants attention was focussed on the relative youth of both appellants. Ben Cowles was born in May 1988, and Tom Cowles in March 1987. Effectively they were men of good character, with good references, and the support of a close family. Credit was sought for the guilty pleas, and it was suggested that the case should be treated as close to the “One-punch manslaughter category”. Something was made of the fact that, in effect, the violence could have been worse. Neither kicked any of those lying on the ground, and no weapon was used.[83]The judge was not prepared to give full credit for the pleas. He was unimpressed with the maintenance of not guilty pleas, and contentions critical of the deceased, which were inconsistent with the overwhelming evidence of guilt demonstrated by the CCTV footage. He was also clear that this case came nowhere near the generic description of “One-punch manslaughter”. He deliberately passed a sentence which was at the top of the bracket to reflect the seriousness of the case, and the total criminality involved. As between the two appellants, he concluded that Ben Cowles had started the violence on both occasions, but it was likely, although not certain, that Tom Cowles’ actions when the deceased was held in a headlock caused the fatal injuries.[84]The appeal is presented on the basis that the sentence was manifestly excessive. Insufficient credit was given for the plea and the age character and antecedents of both appellants. It was suggested that the judge had attached disproportionate weight to the fact of the death, and passed a sentence which was disproportionate both to the facts and to the broad thrust of sentencing decisions in unlawful act manslaughter cases. There was a suggestion that the judge decided points of facts in a way which was contrary to the evidence without offering the opportunity of a Newton hearing. But in reality the assessment of the incident made by the judge was entirely consistent with and supported by the CCTV footage. Moreover the transcript demonstrates that he was at pains to give the appellants every opportunity they wished to call any evidence. Our attention has also been drawn to evidence that both appellants were responding positively to their sentences, and we note the evidence in support.[85]After this lengthy summary, our conclusion can be expressed in brief terms. There were four victims of violence in the street. The death of Frank McGarahan is remote from and has nothing whatsoever to do with a “One-punch manslaughter” case. He was attacked, as his brother and cousin were attacked, because they stepped forward in order to intervene and avoid an unpleasant incident becoming worse. Neither he, nor they, was looking for trouble. They were all subjected to violence. The individual acts of violence by each appellant were plainly the acts of both. So far as the attack on Frank McGarahan himself was concerned, it is clear as can be from the CCTV footage that although the Crown could not establish the necessary intent to cause grievous bodily harm sufficient to convict them of murder – it was undeniable that heavy force was deliberately used. In the context of unlawful act manslaughter the level of culpability was high. These sentences reflect the overall criminality. Sufficient credit was given for the pleas. The judge had the relevant mitigating features in mind, not least the youth and character of the appellants. These sentences were certainly not wrong in principle, and they were not excessive.[86]The appeals against sentence are dismissed.

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