Neutral Citation Number: [2014] EWCA Crim 956
Case No: 201401329 A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Wednesday, 7th May 2014

B e f o r e:

LORD JUSTICE TREACY 

MR JUSTICE KENNETH PARKER 

RECORDER OF CARDIFF
HER HONOUR JUDGE REES
(Sitting as a judge of the Court of Appeal Criminal Division)
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 16 OF 2014   
 
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Computer Aided Transcript of the Stenograph Notes of  
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The Attorney General appeared in person, with Miss S Whitehouse QC
 
Mr S Perian appeared on behalf of the Offender 

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J U D G M E N T 
LORD JUSTICE TREACY:  This is an Attorney General's Reference pursuant to section 36 of the Criminal Justice Act 1988.  The offender is Lewis Anthony Gill.  On 24th January 2014 he pleaded guilty to the charge of manslaughter at Salisbury Crown Court.  He was sentenced on 21st February 2014 to four years' imprisonment for the offence of manslaughter.  In addition, he was sentenced to three months' imprisonment to run consecutively for an offence of handling stolen goods, and also to a further consecutive sentence of three months for committing an offence during the operational period of a suspended sentence.
2.  The circumstances of the case reveal a case of manslaughter arising from a single punch with the bare fist.  
3.  The background is as follows.  On 6th November 2013 the victim, Andrew Young, who was aged 41, was walking along a pavement in Charminster Road, Bournemouth.  Mr Young suffered from Asperger's Syndrome.  This had the effect of making him very precise and particular.  He was described by someone who knew him as somewhat eccentric.  
4.  Earlier that day the offender had travelled to Bournemouth to see a former girlfriend who was studying at the university.  There was an argument between them.  The offender's visit to the university was unwelcome to the ex‑girlfriend and a lecturer asked the offender to leave.  He refused to do so and was told that if he failed to leave, security officers would be called.  
5.  The girlfriend decided to leave the university campus so as to ensure that she was not troubled further by the offender.  A friend of hers, Mr Ibitoye offered to accompany her.  Thus it was that the former girlfriend and Mr Ibitoye came to be walking down Charminster Road.  The offender was following a short distance behind her.  
6.  Mr Ibitoye was riding a bicycle on the pavement.  There came a point where Mr Young confronted Mr Ibitoye and told him not to ride his bicycle on the pavement because it was dangerous.  Mr Ibitoye responded calmly, saying that he was merely astride his bicycle and that he was talking to his companion.  He said it was more dangerous to ride in the road.  A conversation continued between the two men.  It is fair to say that a viewing of the CCTV shows that Mr Ibitoye became more assertive in his body language, but he remained calm and controlled and at no stage offered any threat towards Mr Young, nor did Mr Young offer any threat towards Mr Ibitoye.  
7.  Eventually there came a point in events when Mr Ibitoye decided that further discussion was fruitless and he steered around Mr Young and continued along the footpath, followed by this offender's former girlfriend.  As he did so, Mr Young made a remark to the effect of "Why don't you go back to the jungle?".  That remark was directed at Mr Ibitoye, it was not directed at this offender, although this offender was standing quite close to where the confrontation between the other two men had taken place.  Mr Ibitoye did not respond to that remark, nor did the offender's ex‑girlfriend.  However, that witness was later to tell the police that she had heard the remark in a slightly different form; she characterised it as an extremely racist comment.
8.  This offender, who is black or of mixed race, approached Mr Young.  At that point Mr Young was still looking at Mr Ibitoye, who was walking away up the pavement with his bicycle.  The offender, without warning, struck a powerful punch at the victim's head.  It hit him in the face with force.  The effect of it was that Mr Young fell immediately into the road, without breaking his fall.  He hit his head as soon as he landed on the road.  A number of people went to assist him, including Mr Ibitoye and the former girlfriend.  The offender did not remain at the scene, but it was accepted by the Crown that he had asked his former girlfriend to see if the victim was all right.  
9.  Initially Mr Young was unresponsive, but he did eventually regain consciousness.  He was taken to hospital and then transferred to a different hospital for neurological treatment.  He underwent an operation but unfortunately died on the afternoon of 7th November 2013.  A post mortem revealed that he had suffered a fractured skull and that he had sustained brain injury.  These injuries had been caused by the impact of his head with the hard road surface.  
10. As already stated, the offender left the scene, and indeed left Bournemouth.  He was arrested in Croydon on 8th November.  He gave at interview a lengthy prepared statement in which he raised the issue of self‑defence.  He seems to have exaggerated the number of racist remarks made by Mr Young and suggested that Mr Young had been walking towards him in a menacing and intimidating way, claiming that he believed that a knife was going to be pulled upon him, if not a gun.  Accordingly, he was claiming in interview that he had punched Mr Young in self‑defence.
11. That account to the police was an untruthful account.  It is clearly contradicted by the CCTV footage, and when the matter came before the court this offender did not pursue the claims which he had made in those observations to the police.  He pleaded guilty at what is acknowledged to have been an early opportunity.
12. This offender has four previous convictions.  He was convicted in May 2011 for using threatening words and behaviour.  He received one day's detention.  In May 2012 he was convicted of robbery.  This offence involved taking a chain on a bus in circumstances of group intimidation from a former pupil at the offender's former school.  It appears that the chain which was taken was returned the following day.  For that offence he was sentenced to six months' detention, suspended for two years with activity and supervision requirements.  He fully complied with the activity and supervision requirements.  On 11th December 2013, during the period of suspension, the offender was convicted of handling stolen goods, namely a mobile telephone.  He was committed to the Crown Court for sentence and was sentenced at the same time as the instant offence.  It follows that the instant offence was also committed during the operative period of the suspended sentence.
13. There was a pre‑sentence report available to the sentencing judge, which showed that the offender left school aged 17 with five GCSEs and had completed NVQ courses after that.  At the time of the offence he was studying graphic design.  He was someone who had practised boxing.  He expressed remorse to the probation officer for what he had done.
14. We have also read, as did the sentencing judge, a victim personal statement from Mrs Pamela Young, the widowed mother of the deceased.
15. It is submitted to us that the following aggravating features are present.  Firstly, that the victim was vulnerable because he suffered from Asperger's Syndrome; however it is accepted that the offender had no means of knowing the detail of the victim's condition, although it is submitted that the victim's behaviour was unusual and that this offender must have noticed that.  It is submitted that the punch which was delivered was one delivered with deliberation.  Moreover, the offence was committed in a place where many members of the public were present and is aggravated by the fact that the offender was on bail at the time for the offence of handling stolen goods, and that he offended during the period of a suspended sentence for the offence of robbery.  It appears to us that those features of the case said to be aggravating are accurately identified.
16. It is acknowledged that there is mitigation available.  The offender pleaded guilty at an early stage.  He expressed remorse, which appears to have been accepted as genuine.  The offence was not one which was planned or premeditated, but which arose directly out of the confrontation between Mr Ibitoye and Mr Young.  This offender was relatively young, being 20 years of age at the time of the commission of the offence.  The offender had not previously served any custodial sentence, and the judge accepted in passing sentence that there was some limited provocation upon which the offender could rely arising from the remarks which had been directed to Mr Ibitoye.  It seems to us that those various mitigating factors are present in this case, and we return to an analysis of those aggravating and mitigating factors a little later.
17. The Attorney General has submitted to the court that this sentence was unduly lenient because it did not properly reflect the gravity of what the offender did and the resultant death.  In particular, it is pointed out that the offender intended to cause significant injury, even if there was no intention to cause really serious harm.  That can be gleaned from the judge's sentencing remarks, as indeed it can be deduced from the nature of the blow thrown, which was deliberate and very forceful and had immediate effect upon Mr Young.  The Attorney General further draws attention to the already mentioned aggravating features of offending on bail and during the currency of the suspended sentence.  In the circumstances it is argued that overall the judge failed to recognise the gravity of this case and that he should have imposed a higher sentence.  
18. On behalf of the offender it is submitted that the sentence imposed was not unduly lenient.  The judge, it is said, took account of the relevant aggravating features, as well as the mitigating features, and referred to them in the course of careful sentencing remarks.  It is conceded by the Attorney General that the judge did indeed approach his sentencing task with a degree of care.  Mr Perian, for the offender, submits that the judge had appropriate regard to the relevant case law and sentencing principles and that this court should not interfere with the sentence since it cannot be properly characterised as unduly lenient.
19. The decision of this court in Attorney General's Reference No 60 of 2009, Appleby and others [2010] 2 Cr App R (S) 46, signalled a significant change in the approach to be taken to cases involving manslaughter arising from a single punch with the bare fist.  Regrettably, in the court below the advocate then prosecuting, although referring the judge to Appleby, appears to have concentrated her focus on older case law involving lower sentencing levels now no longer to be applied, and on suggesting that Appleby did not apply to the present class of case.  Fortunately, the judge was alive to the correct position and was aware of the true import of Appleby.  He had also taken the trouble to research for himself subsequent decisions of this court in this class of case following on from Appleby.
20. Appleby makes clear that whilst there must be a focus on the actions of an accused and his intentions, there should also be a focus on the catastrophic consequences of the offence, namely the death of the victim.  It will be important for a court to examine the nature of the blow which was struck.  There is plainly a distinction to be drawn between a relatively modest blow which, by some unusual combination of circumstances, results in the death of the victim and more serious violence.  Consideration of that aspect will play a part in the assessment of culpability to be taken into account, alongside the grave harm done.  
21. Appleby clearly signalled that crimes of violence of this sort resulting in death were to be dealt with more seriously than hitherto, albeit that the court, in dealing with the matter as an offence of manslaughter, must treat the fatal consequences as having been unintended.  Were that not the case, the appropriate charge would have been one of murder.
22. In this case the blow which was struck did not of itself cause death in the way that occurred in Lee [2012] EWCA Crim 835, where the blow ruptured arteries at the base of the skull.  Nonetheless, it was a full force blow, delivered to a defenceless man with sufficient force to stun him or render him unconscious so that he fell to the ground without being able to break his fall in any way.  The judge's finding, which we fully endorse, was that the blow was struck with an intention to cause significant injury, albeit falling short of intending to cause really serious bodily harm.  This offender is, moreover, a powerfully‑built young man who had previously trained as a boxer; the deceased was a man who was offering no physical threat at all.
23. The offender's culpability is further heightened by the fact that the offence was committed in the view of a number of members of the public in the street, a factor recognised in Appleby as a significant aggravating feature.  
24. We do not consider that in the circumstances the limited provocation identified by the judge arising from the words used by the deceased, but not directed at this offender, significantly reduces the offender's culpability.
25. In the light of Appleby, this court has on a number of subsequent occasions had to apply the new guidance in this class of case.  
26. In Rowell [2011] 1 Cr App R (S) 116, the appellant, who contested the case, had struck the deceased a very heavy blow, resulting in his hitting his head on the pavement and suffering a fatal injury.  That event had been preceded by some earlier violence on the part of the appellant.  The appellant had some convictions for violence or public order matters.  The court described the case as falling at the upper level of sentencing for such a case of manslaughter and reduced the sentence of seven years to six years to reflect certain factual errors made by the judge which had wrongly aggravated his assessment of the case.  It is to be emphasised that the figure of six years arrived at did not include credit for a guilty plea.
27. In Gray [2012] 1 Cr App R (S) 73, the appellant did plead guilty.  He had delivered a forceful punch, described as a terrible blow, at night in a busy street to the victim, who was on the phone to the police after some trouble in a club.  The appellant was powerfully built.  The judge found that the punch was delivered to an unsuspecting victim and was likely to cause harm.  The appellant had simply walked off after seeing the victim fall to the ground.  That appellant had a previous record for violence, including matters of assault occasioning actual bodily harm, affray and threatening behaviour.  The sentence of four years and eight months was said to be at the top end of the bracket but not manifestly excessive.
28. In Lee, to which we have already referred, the offender was convicted after a trial.  He had punched a man with learning difficulties, which the judge found the appellant must have been aware of, with a blow so hard that it ruptured the neck arteries.  The appellant had a bad criminal record but not for violence.  The court dismissed a renewed application for leave to appeal against a sentence of seven years, holding that the sentence fell within the upper levels for such an offence but that it was not manifestly excessive.
29. In Duckworth [2013] 1 Cr App R (S) 83, a blow was struck which knocked the victim unconscious so that he landed heavily with his head hitting the road.  It was described as gratuitous violence to an innocent victim who was backing away.  The blow was said to be of considerable ferocity and the appellant then kicked out at the victim as he lay on the ground, albeit that there was no evidence that he connected with him.  He then aimed a blow at a friend of the deceased.  That appellant had 13 previous convictions, including some violent offences.  After a trial an extended sentence was imposed which included a custodial term of eight years.  This court reduced that custodial term to six years, describing the matter as "a most serious offence of its kind".  
30. As this court has repeatedly said, decisions of the sort cited are fact specific, but it is clear that since Appleby there has been a relatively consistent approach to the levels of sentence in cases of the type this court is concerned with today.  
31. It seems to us that after a trial, taking account of all the circumstances, including the offender's age and his offending on bail and during the period of a suspended sentence, a sentence of the order of six to seven years would have been appropriate.  It is accepted on all sides that this offender pleaded guilty at an early stage, so that the judge properly gave him the one‑third credit recommended by the Sentencing Guidelines Council.  The effect of that would be to bring the sentence down to one of four years or a little more.  In the circumstances, therefore, the sentence which the judge imposed was consistent with the practice of this court in the aftermath of the changes indicated by Appleby.  The judge correctly appreciated Appleby and had regard to the consistent line of sentencing practice following it.  
32. We readily understand that this is the sort of case which arouses public concern.  That, in part, is no doubt why this court signalled higher sentences in Appleby.  The sentencing process cannot be driven only by the harm done, appalling as it is.  The other side of the equation is the level of culpability, and inherent in the charge of manslaughter is the recognition that the offender did not intend to cause really serious harm.  A balance has to be struck between these two major sentencing factors.  
33. This is not the case to bring about a departure from a settled level of sentencing arising from a relatively recent reconsideration of this area of the law.  Indeed, the not dissimilar case of Hoo‑Lawson, heard together with this matter, involving an appeal against a sentence of four and a half years on a plea of guilty, with no suggestion of undue leniency, illustrates the settled state of the law.  
34. Moreover, the guidance in Appleby reflected in part changes in sentencing in relation to murder, manslaughter by reason of provocation, manslaughter by reason of diminished responsibility, attempted murder and fatal driving cases.  Appleby also took into account the provisions of the Criminal Justice Act 2003.  The decision in Appleby has been applied to other classes of manslaughter than the single punch category: see, for example, Attorney General's Reference No 125 of 2010, (Draper) [2011] 2 Cr App R (S) 97.  Any change of sentencing approach to this type of manslaughter would need to be considered alongside other forms of manslaughter which have adopted the Appleby approach.  
35. If there are public concerns going beyond this case, then it may well be appropriate for the wider issue to be the subject of detailed consideration and consultation by the Sentencing Council in the future.  It is open to the Secretary of State for Justice or other interested bodies to invite the Sentencing Council to do so.  
36. However, returning to the present matter, we conclude for the reasons given earlier in this judgment that the sentence imposed below was not one which can be described as unduly lenient.  Indeed, it seems to us that the sentence imposed was one which was within the range reasonably available to a trial judge, properly weighing the relevant factors and the guidance of this court in Appleby and succeeding cases.  Accordingly, we refuse leave and we dismiss this reference.