Case No: 200301112Z1
 Neutral Citation No: [2003] EWCA Crim 1324
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE POLLARD
AT NOTTINGHAM CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13th  MAY 2003

Before :

LORD JUSTICE MANTELL
MR JUSTICE ROYCE
and 
HIS HONOUR JUDGE METTYEAR
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Between :

	REGINA		
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	DAVID STEPHEN WADSWORTH		

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Mr R Mayo (instructed by Robinsons) for the appellant

Hearing dates : 30 April 2003
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

His Honour Judge Mettyear:
1.	On the 25th November 2002 at the Crown Court at Nottingham the appellant pleaded guilty to manslaughter. He had been indicted for murder and this was the first occasion on which the Crown had intimated a willingness to accept a plea to the lesser offence. Sentence was adjourned until the 11th February 2003, when His Honour Judge Pollard imposed an extended sentence of 8years, pursuant to section 85 of the Powers of Criminal Courts Act 2000. This was made up of a custodial term of 6 years and an extension period of 2 years. 
2.	He appeals against sentence by leave of Hidden J.
3.	The Court finds the decision to offer acceptance of a plea to manslaughter a surprising one. It seems that it was a surprise to the defence as well. Mr Mayo, counsel for the appellant, has told us that no offer of such a plea had been made by the defence because they had believed it would not be acceptable. We have not heard from the Crown on this issue and it is possible that there were factors of which we are unaware which explain what happened. We are not, therefore, to be taken as criticising anyone involved in the case. We do, however, make the general point that in difficult and sensitive cases like this, where the decision on what plea to accept is finely balanced it is often better to leave the matter to the jury to determine rather than for the lawyers to come to an agreement between themselves.
4.	The Court is also concerned about the manner in which the taking of the plea occurred. The father of the victim has written: 
“I would like to describe my feelings concerning the judicial process surrounding this case…My wife and I have been made aware….of the dates the defendant has appeared at court. In an attempt to spare the feelings of my family, we have not attended these preliminary hearings, intending to attend the trial proper when it was to be heard in full. This was important to us for the sake and memory of our precious son….However, we were informed on Monday 25th November 2002, that the defendant had appeared at Nottingham Crown Court, on what we had been told would be a hearing to discuss timetables for the trial, and the judge had accepted a plea, by the defendant, of guilty to the lesser charge of manslaughter. We were extremely upset by this news a) because we would have attended for the sake and memory of our son….b) because it would have been courteous to have been given some warning that… the charge had been reduced”. 
We have no reason to doubt that this is anything other than an accurate account of what happened and the family’s reaction. It is a matter of deep regret that they have been left with this feeling. It is of great importance that those involved in the administration of justice do all they can to promote confidence in the system. Consideration for victims and their families and where possible consultation with them should be part of this process. 
5.	Despite the concerns expressed above we must and do accept for the purposes of this appeal against sentence that this was a case of manslaughter and the plea was properly accepted. We also accept that any criticism of the way matters developed in the Crown Court is not the fault of this appellant.  
6.	On the evening of the 24th August 2002 Luke Richmond, who was 16 years of age, went out with friends to celebrate his GCSE results and the fact that he had obtained employment with a local engineering firm. He was a young man with much to look forward to in life. He came from a good family, who are naturally devastated by what happened to him that night. He has been described as likeable and pleasant.
7.	Having spent the evening visiting a number of public houses Luke met up with his elder brother and they started to make their way home, stopping on the way to buy some food. As they did so they saw a group of youths behaving in a rowdy manner. This was about midnight. Amongst the group was the appellant. Sensing that these youths might seek trouble and wanting to avoid it Luke and his brother crossed the road to avoid them.
8.	As they passed the group, the appellant was heard to say something like “let’s go and smack those lads”. Unfortunately, Luke needed to urinate and did so in a bush-lined gateway. As he zipped up his trousers the appellant approached him and punched him in the face. A second blow was delivered with such force that Luke was knocked to the ground. He hit his head on the road surface. It was later discovered that as a result of that conduct he had suffered a scalp injury, a scull fracture and fatal brain injury. Not satisfied with the two punches the appellant moved a few paces back from Luke, as he lay helpless on the floor and then ran back and kicked him hard to the head.
9.	The following morning the appellant was arrested. His right hand was swollen and injured. To the police, in interview, he falsely claimed that this was an old injury caused at work. Whilst accepting that he had been at the scene of the incident he lied about his involvement in it.
10.	The appellant was born on the 2nd August 1985. He is therefore 17 years old. He had no previous convictions and had expressed remorse and regret for his actions. 15 character references and a letter from the appellant were considered by the judge.
11.	Mr Mayo began before us by making what he accepted was a bold submission. He claimed that the judge should have dealt with the appellant by the imposition of a Detention and Training Order. The maximum period that can be imposed is 24 months. From that would have to be discounted a period for his plea of guilty and account would have to be taken of the period during which he had been remanded in custody. The comparatively short period that would be left would, in our view, be wholly inadequate to reflect the seriousness of the appellant’s conduct.  
12.	Mr. Mayo’s alternative submission was that the authorities indicate that the appropriate sentence should be less than 4 years custody.
13.	In considering the authorities a good starting point is the decision of this Court in R v Morby (1994) 15 CR. APP. (S) 53. The appellant had pleaded guilty to manslaughter. He had been involved in a fight with the deceased and admitted that in the course of the fight he had punched and kicked. The cause of death was said to be a single blow either from a punch or a kick. The appellant was 27 years old. He claimed that the violence started as a result of a homosexual advance from the deceased. A sentence of four and a half years imprisonment was upheld. Having reviewed a number of authorities, including a number of those relied on by Mr. Mayo, Beldam LJ., giving the judgement of the Court, said:
“In this case it has been urged upon us that the learned judge in fixing upon 5 years as the starting point started with manifestly too high a figure. Bearing in mind the observations in the cases we have been referred to, we are unable to take that view. We consider that the range of sentences which is disclosed by those reported cases in which, on the highest authority, the various cases were considered and reconciled show that unless there is some exceptional feature, which there was not in the present case, 5 years is a sentence that can properly be imposed for manslaughter of this kind”.
14.	We recognise, of course, that there are many cases where sentences of a much shorter duration than the 5 years mentioned in R v Morby are appropriate. Perhaps the most common example being cases where two men willingly engage in a fight and one receives a punch, not necessarily a hard one, which causes him to lose his footing, fall, bang his head on a hard surface or object and sustain fatal injuries. R v Coleman (1992) 13 CR. APP. R. (S) 508 (a case cited in R v Morby) is a good example of such a case. The facts were somewhat unusual. The head note reads:
“The appellant pleaded guilty to manslaughter. The appellant was walking home with his cohabitee, when he encountered two men who were shouting abuse and obscenities, although not directed at the appellant. The appellant confronted the two men, and punched each of them once in the face. Both fell to the ground; one of them tripped over a kerbstone, fell backwards, fractured his scull and died shortly afterwards. The appellant admitted he had struck the blow to the police who arrived at the scene. Sentenced to 2 years imprisonment”.
The judgement of this Court, on an appeal against sentence, was given by Lord Lane CJ. Having reviewed the authorities he said, 
“It seems to us, having done our best to reconcile these various decisions – manslaughter is in an area where reconciliation of decisions is by no means easy- that the starting point for this type of offence strictly confined, as we have endeavoured to confine it, is one of 12 months imprisonment on a plea of guilty”. 
In the event the appeal was allowed and the sentence reduced to 12 months.
15.	Mr Mayo referred us to a number of other authorities dealing with similar incidents involving little violence, but grave consequences. We need not refer to them as Mr Mayo accepts that his strongest case is R v Coleman.
16.	It must be emphasised that the present case is very different from the R v Coleman type of case. Here Luke Richmond was an entirely innocent victim who was actively seeking to avoid trouble of any sort. He was the victim of an unprovoked attack from the appellant who was, in the words of the sentencing judge, “spoiling for a fight”.
17.	As well as cases when sentences of less than 5 years have been held to be appropriate there have been cases where longer sentences have been upheld. In R v Kime (1999) 2 Cr. App. R. 3 a sentence of 6 year was imposed for the manslaughter of an 80 year old man. The facts, taken from the head note, were, 
“The appellant was convicted of manslaughter on an indictment charging him with murder. The appellant was engaged in an argument with his girlfriend in a car park when he heard a group of people, including the victim, taking part in a jovial conversation. The appellant approached this group and asked the victim… whether he was laughing. He then punched the victim once or twice in the head….he was taken to hospital where he suffered a cardiac arrest and died. His death had been hastened by the shock and haemorrhage resulting from facial injuries caused by the punches, but he was suffering from heart decease and could have suffered a fatal episode at any time.” 
In giving the judgement of this court Rose LJ stated:
“…that although the appellant was convicted of the offence after a trial he had indicated that he was prepared to plead guilty to manslaughter if it was an acceptable plea...”
One of the features relied upon by the court in distinguishing the case from those deserving of lesser penalty was the behaviour of the victim. As the court said,  
“…he was minding his own business. Not only was he not engaged in any sort of aggressive conduct, he was not engaged in conduct of any kind vis-à-vis the appellant”.
18.	In R v Rumbol (2001) 2 Cr. App. R. (S) 299 a sentence of 7 year imprisonment, after a trial, was reduced to 6 years in a case where a single punch knocked the victim to the floor fatally rupturing the vertebral artery. The court regarded the aggravating features as being that the appellant was a professional boxer and that the attack was not in the heat of the moment. The victim was wholly innocent and no provocation was present
19.	In his submissions to us Mr Mayo contended that our attention should be focused only upon the punches and the head hitting the ground. He submitted that the kick to the head should be ignored as it was delivered after the fatal blow. We do not agree. At the very least it shows a lack of remorse for the punches already delivered which had injured Luke so badly that he lay defenceless on the ground. The kick was hard. The appellant described it as like taking a penalty kick. We regard the kick as a serious aggravating feature.
20.	In his sentencing remarks the judge made reference to the prevalence of unprovoked attacks in the area concerned. He was keen to send out a message that those who chose to attack the innocent will face substantial punishment and that the consequences flowing from such attacks will be a significant consideration in determining sentence even if those consequences are not foreseen.
21.	We regard the custodial element of the sentenced passed as towards the top end of the acceptable range. However, it is clearly not wrong in principle and we have not been persuaded, despite the strong personal mitigation, that it is manifestly excessive. 
So far as the 2-year extension period is concerned the learned judge in passing sentence said, 
“I am going to extend the licence period at the end of your sentence by a period of 2 years. That is to prevent the commission of any further offences by you and to ensure your rehabilitation in your community”.
22.	Whilst we can understand why the learned judge took this course Mr Mayo has persuaded us that it is unnecessary. The appellant is a young man with no previous convictions and it is to be hoped that the substantial custodial period and the normal period of license will be enough to achieve the ends desired by the judge. 
23.	The result is that the appeal is allowed to the extent that we quash the extension period of 2 years.