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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Appleby, R v [2009] EWCA Crim 2693 (18 December 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2693.html Cite as: [2010] Crim LR 325, [2009] EWCA Crim 2693, [2010] 2 Cr App Rep (S) 46, [2010] 2 Cr App R (S) 46 |
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2009/03971/A3 (2) 2009/03972/A3 (3) 2009/03836/A9 (4) 2009/03838/A9 (5) |
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE THOMAS VICE PRESIDENT OF THE QUEENS BENCH DIVISION
LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE SIMON
and
MR JUSTICE ROYCE
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R |
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- v - |
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Appleby (1) |
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(Reference under section 36 of the Criminal Justice Act 1988) |
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R |
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-v- |
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Bryan and Roberts (2)(3) |
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R |
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-v- |
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Cowles and Cowles (4)(5) |
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Mr 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 dates : 3rd December 2009
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Crown Copyright ©
The Lord Chief Justice of England and Wales:
"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".
"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."
"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.
"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".
"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.
"Parliament's intention it seems is clear: crimes which result in death should be treated more seriously and dealt with more severely than before."
R v Appleby
"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."
R v Bryan and Roberts
R v Ben Cowles and Tom Cowles