Harvey, R. v [2010] EWCA Crim 1317

[2010] EWCA Crim 1317Case No 2010/00276/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 19 May 2010
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MRS JUSTICE RAFFERTY
and
HIS HONOUR JUDGE GOLDSTONE QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
__________________
- v -
Between
PAUL HARVEY__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone 020 7404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)__________________Mr J Goldberg QC appeared for Appellant___________________J U D G M E N T
[1]On 16 November 2009, in the Central Criminal Court, this 47 year old Appellant pleaded guilty to manslaughter on an indictment charging murder. On 18 December he was sentenced to three years' imprisonment and, consequent upon section 240 of the Criminal Justice Act 2003, the Judge ordered 155 days spent in custody as counting towards sentence. By leave of the Single Judge he appeals against the length of his sentence.[2]Gloria Laguna, a professional woman, and the Appellant were in the summer of 2008 married. The Appellant held down a job of significance and was highly qualified.[3]On the evening of 21 March 2009, man and wife were at home and each had taken alcohol and used a limited quantity of cocaine. An argument flared. The Appellant had a stepdaughter through an earlier relationship and, although the responsibility did not fall upon his head, voluntarily he paid maintenance in respect of her. His wife resented that and said so. Turbulence did not resolve and, his temper running high, the Appellant threw a television remote control, unaimed, toward her. It connected with her just behind her left ear and, as was sadly to prove fatal, just above her vertebral artery. Unknown to anyone, she had an unusual, singular weakness of the vertebral artery and because of the blow the artery was dissected. She collapsed. The appellant knew immediately that something was wrong because of her bizarre behaviour. He telephoned an ambulance at once. He explained over the telephone exactly what had happened, that his wife was not breathing, her eyes were half open, her mouth was open. His distress could be tested by listening to the tape of the emergency call. It was never in issue that it was evident and genuine. The operator instructed him on emergency measures in an attempt to resuscitate Gloria Laguna and the Appellant did what he could. He was also to be heard over the telephone pleading with his wife to come back to him, to recover. When the ambulance arrived, staff noted his candour and that he seemed stunned, distressed, saying to the paramedics, "What have I done?" and "I threw a remote at my wife's head". He explained to them that her behaviour had immediately included talking gibberish, collapsing and vomiting. Gloria Laguna was rushed to hospital and went straight into Intensive Care where, at 6.50am on 22 March she was pronounced dead.[4]To police officers who had arrived at their home moments after the ambulance, the appellant explained that he and his wife had argued and that he had thrown the remote control.[5]Arrested for murder and interviewed, he elected not to answer any questions put to him.[6]The cause of death was identified as traumatic subarachnoid haemorrhage, the bleeding around the brain caused by a hard blow. The results were examined by an increasing range of specialists. Ultimately, Dr Al-Sarraj, a neuropathologist, found that the amount of force required to produce the wound would, because of Ms Laguna's particular circumstances, have been not only significantly less than in an otherwise normal individual, but, as we shall rehearse, that trivial damage had disproportionate effect. She was unusually vulnerable at the precise spot with which the remote control connected. The slightest trauma at that exact spot, experts on both sides were agreed, could kill her.[7]There was before the Sentencing Judge an agreed basis of plea composed by leading counsel for the Crown and readily accepted by Mr Goldberg QC, who appeared here and below. It reads as follows:
"[The Appellant] accepted that by his unlawful act he caused the bruising to Gloria Laguna's neck. Sadly she suffered from a particular weakness and that battery (whether by throwing the remote control or in some way by striking) caused her death. It was an unlawful act that all sober and reasonable people would inevitably have realised subjected [her] to at least some harm resulting therefrom, albeit not serious harm. In fact it would only have required a trivial incident to have caused her death. The appellant contacted the emergency services and did what he could to preserve her life."
Mr Goldberg tells us this morning, and we accept, that the Crown made clear to him that, save for Ms Laguna's death, the charged offence would have been no more than common assault.[8]Born on 24 December 1962, the Appellant has four previous convictions comprising four offences. In 1987 for assault occasioning actual bodily harm, when he head-butted a police officer, he was sentenced to one month's imprisonment suspended for twelve months. In 1994 for criminal damage when, having missed a train he broke the glass of a kiosk in anger, he was fined £100. In 1998, for possession of cannabis, he was conditionally discharged. In 2002, for assault occasioning actual bodily harm, he lost his liberty for six months, having at a party struck another obstreperous guest and fractured his cheekbone.[9]There was no evidence that drink or drugs played any part in the two offences of violence and the Appellant has never stuck a woman.[10]A pre-sentence report rehearsed a good deal of the background and that the Appellant accepted responsibility and did not try to transfer blame. The author opined that the Appellant had become angry and had reacted without thought of consequences.[11]Sentencing him the Judge described this as an "unintended death from unnecessary violence". The Appellant had put his wife at an obvious risk of injury when he threw the remote control. That was irresponsible and dangerous. He may not have aimed it at her head, but he had taken a significant risk of causing injury, a risk far greater than could have been anticipated. It was to his discredit that he had been drinking and had taken cocaine. Their combined effects would have increased his anger. As Lord Phillips CJ had observed in R v Furby, that twelve months was the starting point on a guilty plea without aggravating circumstances, here the use of cocaine and alcohol had increased the likelihood of the Appellant assaulting his wife. His previous record was not to his credit. There was a streak of anger and violence within him. His past violent offences had not been trivial. They should have made him all the more aware of the possible consequences of drinking and taking drugs and assaulting his wife. The two principal aggravating features were the drinking and the drugs and his propensity. His mitigation was his wife's unfortunate weakness. Hers had been described as an "eggshell skull" case. He called a very good character witness. After the event he had been distraught and did what he could to help. His remorse was clear and he had pleaded guilty at the first opportunity. The consequences were tragic and had to be marked with an immediate custodial sentence.[12]In Grounds of Appeal, developed by Mr Goldberg, the complaint is that this was the most classic of "eggshell skull" cases; that the Appellant had done all a man could do to revive his wife; his grief and remorse were palpable; he had pleaded guilty at the first opportunity; he had never struck a woman; and that all those matters taken together indicate that the Judge either took too high a starting point or failed adequately to reduce it.[13]Giving leave and warning against optimism, the Single Judge thought it arguable that the sentence was too high in view of the exceptional circumstances of the offence and the immediate contrition.[14]Mr Goldberg has taken us today to two authorities, one of which was before the Sentencing Judge, one of which could not have been. Judge Forrester read Furby [2005] EWCA Crim 3147, [2006] 2 Cr App R(S) 8, but could not have read R v Appleby [2009] EWCA Crim 2693, [2009] WLR 4872632. In Furby the appellant pleaded guilty to manslaughter, he and the deceased good friends, and the appellant a thoroughly decent young man. The two had been out drinking. Each had had a very great volume of lager and they had retired to the appellant's home where, unsurprisingly, they had fallen asleep. The appellant's partner, returning home in the early hours, found them both asleep and woke the deceased who suddenly and inappropriately kissed her. She was distressed. She summoned her sister who went to the appellant's home. The sister woke up the deceased and herself attacked him. The appellant then woke. The sister explained thing, the deceased apologised, but the appellant grabbed the deceased's shirt and hit him, once, hand to cheek. He collapsed to the ground. Attempts by the emergency services to resuscitate him failed. The single blow had caused a subarachnoid haemorrhage, leading to death. The plea was at the first directions hearing. Lord Phillips CJ explained that causing the death of another by unlawful violence must result in a sentence of some length. The sentencing judge had correctly described this as a difficult sentencing exercise. The seriousness depended on the culpability of the offending conduct and the resulting harm. Difficulties arose where the disparity between culpability and harm was wide, but no harm could be more serious than death. The length of the sentence must therefore reflect the culpability of the offender. Twelve months was the appropriate sentence.[15]In Appleby, decided too late to be put before Judge Forrester, in which the Court gave guidance on the terms of imprisonment in unlawful act manslaughter, having considered Furby, the Court remarked that it was a truism that each such case is different, many fact-specific. Lord Judge CJ began his review with the familiar authority of R v Coleman (1992) 13 Cr App R(S) 588, a death resulting from a single blow, followed by a fall, the events described as "almost accidental" when the skull was fractured. He moved on to R v 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". The Lord Chief Justice in Appleby went on:
"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 Furby was plainly re-echoing the approach in Coleman that the death was "almost accidental". The essential feature of Furby arose from its particular facts, Furby being a decent young man.[16]We remark, as we remarked in dialogue between Bench and Bar, that a readily distinguishable feature, contrasting this Appellant with Furby, was this Appellant's previous convictions.[17]In Appleby the Lord Chief

Justice continued:

"Without seeking to undermine or diminish the value of Furby .... it was decided shortly after legislative changes in the Criminal Justice Act 2003 .... an additional feature of manslaughter cases which has come to be seen as a significant aggravating feature .... is the public impact of violence on the streets...." 18. "
What was 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". He considered the provisions of section 143(1) of the Criminal

Justice Act 2003:

"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"
. In other words, it imposed a statutory duty on a court to consider what has resulted from the crime. The Court's impression was that the work of the Sentencing Guidelines Council now offered to sentencing courts a representation of an increased level of sentencing from that which would have been familiar in, say, 2000 and certainly at the time when Coleman was decided, which, we remind ourselves, was 1992.[18]Finally, the Lord Chief

Justice said:

"Returning to unlawful act manslaughter .... taken together the recent changes in the legislative structure .... lead to the inevitable conclusion, as described in R v Wood [2009] EWCA Crim 651, 'Parliament's intention it seems is clear: crimes which result in death should be treated more seriously and dealt with more severely than before'."
[19]This court has found the review of the sentencing exercise very difficult. Mr Goldberg submits that this was an extraordinary fluke incident. Ms Laguna could, on the medical expertise, simply have turned her head to look at something and as a consequence died. He submits that Furby is still good law on its own facts and, if decided today, the sentence would be identical. He relies, as we have set out, on the fact that Appleby found its genesis in street fights, differing on the facts from this case but offering guidance on approach. He relies on section 143(1) to underline that, on these facts, death was very unforeseeable. This was the throwing of a remote control, so the consequent death was significantly less foreseeable than any punch. This throwing was a throwing toward, an assertion uncontradicted today by the Crown, rather that a throwing intended to connect. He accepts, as he must, the two differences between Furby and this case. In Furby a decent young man had in a sense been provoked by what he saw as an unacceptable approach to his partner. In this case the Appellant has previous convictions. We are not persuaded by Mr Goldberg's argument that the throwing of the remote control was "understandable" in the sense that the Lord Chief Justice used it in Appleby. We do, on the other hand, accept that matters arose from an ordinary, avoidable, regrettable domestic tiff.[20]Mr Goldberg distils his submissions by posing this rhetorical question: Given the authorities and the statute, must it not be the case that the learned Sentencing Judge fell into error by attaching too much weight to the Appellant's previous convictions? Putting it another way, he asks: If the appropriate starting point were twelve months, as in Furby and in Coleman, is the Appellant's set of previous convictions sufficient justification for that sentence to be raised to three years?[21]It seems to us that this is a genuinely singular set of circumstances, extraordinary in its unhappy coincidence. We note the medical evidence, uncontradicted, that Ms Laguna could have died at any stage by a simple turning of her head. We note also that this was not a one punch manslaughter but the intemperate throwing of a television remote control toward her. That being so we are, just, persuaded that three years was too long. In our judgment, on these singular facts, the justice of the case can be met by the imposition of a sentence of 21 months' imprisonment. To that limited extent this appeal succeeds.[22]We turn finally to the point taken of 155 days spent in custody as counting towards sentence. It was accepted that the Appellant had been in prison for 139 days. To that the learned Judge added 16 to achieve a total of 155. Mr Goldberg told us that in mitigation having advanced the proposition that 47 days spent wearing an electronic tag (nine hour days would qualify whereas the eight hour days the Appellant had worn it would not), he thought the learned Judge was minded to treat as to be deducted.[23]Two things arise therefrom. In truth, the Appellant was curfewed for eight hours, not the qualifying nine hours, very probably due to an innocent error by his solicitor. Second, the Judge could deal only with the evidence before him. That was that the Appellant had remained in custody for 139 days and had been electronically tagged for a limited number of days. Nothing put before us today persuades us that in calculating the ultimate figure the Judge fell into any error it is appropriate for this Court to correct. We therefore leave untouched the days to be deducted. The appeal succeeds only to the limited extent we have already made plain.