Furby, R. v

Tuesday, 8 November 2005

THE LORD CHIEF JUSTICE:

1. On 21 July 2005, in the Crown Court at Sheffield, the appellant pleaded guilty to manslaughter contrary to common law. He was sentenced on the same day to two-and-a-half years' imprisonment. He appeals against sentence by leave of the single judge. At the invitation of the Registrar the Crown has been represented on the appeal and has provided the court with a most helpful skeleton argument and an analysis of a considerable number of authorities.

2. The relevant facts are as follows. The appellant and Mark Skelton, the man who was to die, were good friends. The appellant was aged 26, and Skelton 28. The appellant lived with a woman called Louise Tchaikovsky and three children. The two younger children were their own and the eldest was a child by another man.

3. On Saturday 30 April 2005, the appellant and Skelton were working together on rebuilding the appellant's patio. In the late afternoon they had a couple of cans of lager and then early in the evening they went out together for a night in Rotherham town centre. In the course of the evening they each consumed in the region of eight to ten pints of lager, possibly more. Skelton became a little the worse for wear and the appellant took him back to his home, arriving there shortly before midnight. They then relieved a relative of Louise Tchaikovsky who was baby-sitting. The baby-sitter was needed because Louise had also gone out for a night on the town with her younger sister Leanne, who was aged 17, and some of their mutual friends. They, too, consumed a fair amount of alcohol.

4. Louise returned home at about 2.30am. She found the appellant and the deceased soundly asleep each on his own sofa. She tried to wake the appellant, but did not succeed. She managed to wake up Skelton, who suddenly kissed her on the lips. She was upset and said, "What have you done that for?" and pushed him away. She left home in some distress, telephoned her sister Leanne to tell her what had happened, and made her way to Leanne's house. Leanne stormed round to the appellant's home to find Skelton and the appellant asleep. Not without some difficulty, she succeeded in waking up Skelton. She launched a frenzied attack on him, punching and slapping him in the face. The appellant then woke up. Leanne gave him some kind of account of what she understood had passed between Skelton and Louise. The appellant got up and went into the kitchen. Skelton followed him. At this time it seems that he did not accept that he had done anything inappropriate. This caused Leanne, who followed them into the kitchen, to telephone her sister on the mobile phone. Whether either of the men spoke to Louise on the telephone is not clear, but it seems that at this point Skelton said that he was sorry. The appellant then grabbed hold of Skelton's shirt with his right hand and hit him once on the right cheek, using his left hand. Skelton collapsed to ground. This single blow had caused a traumatic subarachnoid haemorrhage, that is the bursting of a blood vessel in the brain, which had killed Skelton.

5. An ambulance was called. Whilst they were awaiting for it attempts were made to resuscitate Skelton, in which the appellant assisted with mouth-to-mouth resuscitation.

6. Both the appellant and Leanne were arrested. Leanne accepted that she had assaulted Skelton and was given a verbal caution.

7. The appellant accepted that he had struck the fatal blow. He indicated a likely guilty plea to the charge of manslaughter at the preliminary hearing. A plea of guilty to manslaughter was entered at the first directions hearing on 1 May 2005.

8. A number of written testimonials to the appellant's good character were before the court. He had two convictions for driving with excessive alcohol, but otherwise a clean record. He also had a good work record and was a good father.

9. Skelton also, as the judge remarked, was a thoroughly decent young man. Statements from his relatives spoke to the grief and anger that they felt at his death and at the manner of it.

10. In passing sentence the judge summarised the material facts and then said this:

"Cases such as this can present a difficult sentencing exercise. In mitigation are your character, your early plea, your remorse and the fact that the violence was limited to the one punch. Against that is the background of excessive drinking, without which this incident would probably never have happened at all. At the time you struck your victim he was doing nothing at all to you, and there was no possible justification for the use of any violence; and, of course, the fact that death resulted shows why courts must always take a serious view of any unlawful violence because unintended results are always possible.

Each year at courts around the country a number of similar cases occur where people die as the result of one blow, showing that this is by no means an unusual situation. A number of those cases have found their way to the Court of Appeal. In the last 24 hours I have read various judgments given by the Court of Appeal in such cases over the last few years, and, like counsel, I find it difficult to reconcile those cases one with another.

What is clear, however, is that there has been a recognition in recent years that too little attention was sometimes paid in the past to the fact of loss of human life, and in my judgment that must be right. Causing the death of another human being by unlawful violence must result in a sentence of some length."

11. The judge was right to say that cases such as this present a difficult sentencing exercise. A sentence must reflect the seriousness of the offence. The seriousness depends on the culpability of the offending conduct and on the harm that has resulted from it. Difficulty arises where there is a wide disparity between the culpability of the offender and the harm that he has caused. In the crime of manslaughter the harm caused is an element of the offence. No harm can be more serious than the death of a victim. Its impact usually extends, as it does in this case, to the relatives who have lost a loved one. They may, understandably, feel that no sentence can properly reflect the harm that has been caused. Because of the harm caused, the offence of manslaughter will usually, though not inevitably, attract a custodial sentence, regardless of the nature of the wrongdoing that has caused the death.

12. It is right, however, that the length of the sentence must reflect the culpability of the offender. This can vary widely in the case of manslaughter from violent or reckless behaviour that foreseeably carries the risk of causing death, to a case where death results from an unlawful act as a consequence of a fortuity which the offender could not reasonably have foreseen. Death resulting from a single punch usually falls into this category.

13. The circumstances in which the punch was delivered will have a significant effect on the length of the sentence; but where the consequences of the punch were not reasonably foreseeable, care must be taken to see that the effect is not disproportionate.

14. Like the sentencing judge, we have considered past judgments of this court dealing with manslaughter caused by a single blow. That was an exercise this court carried out in 1991 in R v Coleman (1992) 13 Cr App R(S) 508. The appellant in that case had responded to verbal abuse by punching the victim, who had tripped over a kerbstone and fractured his skull. Lord Lane CJ prefaced his consideration of the case law with the following observations at page 510:

"It should be noted at the outset that this is the circumstance which we have to examine: where a person receives a blow, probably one blow only, to the head or face, is knocked over by the blow and unfortunately cracks his head on the floor or the pavement, suffers a fractured skull and dies. It is to be distinguished sharply from the sort of case where a victim on the ground is kicked about the head. It is to be distinguished sharply from the sort of case where a weapon is used in order to inflict injury. It is further to be distinguished from where the actual blow itself inflicts the injury which causes the death. This is the case of a fall almost accidentally resulting in a fractured skull."

Having reviewed a number of decisions, Lord Lane set out the court's conclusion at page 512 as follows:

"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.

Having started from that point, one turns then to consider the mitigating features on one hand and the potentially aggravating features on the other. The fact that there was no premeditation is one of the mitigating features. The fact that it is a single blow of moderate force, again is another mitigating feature. The fact that there has been remorse, the fact that there has been an immediate admission of guilt at the first opportunity are all features which tell in favour of the appellant.

On the other hand indications that the appellant is susceptible to outbreaks of violence, the fact that the assault was gratuitous and unprovoked, the fact that there was more than one blow struck, are all features which will tend to aggravate the offence."

The Chief Justice went on to look at the facts of the particular case and to conclude that there were mitigating features which evenly balanced the aggravating features. In those circumstances the sentence of two years that had been imposed was quashed and substituted by a sentence of twelve months.

15. We have been referred to no less than 19 appeals that have been heard since Coleman was decided. They are not all easy to reconcile. In six of those cases, Coleman was expressly followed and applied. The first was R v Bryant (1993) 14 Cr App R(S) 621, in which this court was presided over by Lord Taylor CJ, who gave the judgment of the court. It was a case where a punch had knocked the victim off his feet and he had died as a result of striking his head. There was no reason for the punch. The explanation was, as is so often the case, that drink had inflamed the aggressive character of the appellant. Without a plea of guilty, and after a trial, this court, following Coleman , decided that it was appropriate to reduce the sentence of three years' imprisonment that had been imposed to one of two years.

16. The next case was R v Henry [1999] 2 Cr App R(S) 412, in which this court was presided over by Simon Brown LJ. In that case there had been a plea of guilty. The appellant had seen his wife kissing a man and had struck him one blow. He had fallen and struck his head. It was a considerable blow which had fractured the deceased's jaw. The appellant was a man of good character. Drink was not involved. In allowing the appeal and following Coleman , the court quashed a four year sentence and substituted a sentence of 18 months. Simon Brown LJ remarked that, but for the ferocity of the blow, the sentence would have been less.

17. In R v Edwards [2001] 2 Cr App R(S) 540, this court was presided over by Keene LJ. In that case there had been no plea of guilty; there was a degree of provocation; there was a single punch not of great force, which caused the victim to fall and strike his head with fatal consequences. The court referred to Coleman , Bryant and Henry , quashed the sentence of thirty months that had been imposed, and substituted a sentence of eighteen months.

18. In R v Cheetham and Baker [2004] 2 Cr App R(S) 278, the appellant Cheetham had pleaded guilty. He had been in drink. He had followed the victim and administered a single punch without any reason. The court followed Coleman which they described as their guide. The court also cited R v Edwards and R v Kearney [2001] 1 Cr App R(S) 126, and reduced the sentence of four years' imprisonment that had been imposed to one of two years.

19. In R v Binstead [2005] EWCA Crim 164, presided over by Gage LJ, again there had been a plea of guilty. Drink had played its part; the appellant was moderately drunk and the deceased was very drunk. The deceased called out the appellant for a fight. There was one punch which was stuck hard. The appellant was a man of bad character. He had a previous conviction for attempted rape. Following Coleman and Edwards , the court reduced the sentence of two-and-a-half years' imprisonment to one of eighteen months.

20. Finally, in R v Roberts [2005] EWCA 1303, presided over by Lord Woolf CJ, the facts were horrifying. The appellant pleaded guilty. He had been driving in Cambridge, where he wrongly thought that he had been called "gay". He got out of his car and gave the victim a ferocious punch in the face, so violent that it broke some of the facial bones. The victim fell and fractured his skull. Remarking that there had been aggravation, the court nonetheless reduced the sentence of five years' imprisonment to one of two-and-a-half years, applying Coleman .

21. Two other cases to which we have been referred were wholly consistent with Coleman . In R v Gratton [2001] 2 Cr App R(S) 167, in which there was an appeal against a nine month sentence which had been imposed, Tuckey LJ said that the judge had got it right. In R v Grad [2004] 2 Cr App R(S) 218, the facts had much in common with those of the instant case. It was a case in which no plea of guilty had been entered. The offence arose out of a fracas between rival groups at a club. The fracas continued outside. The appellant administered a single punch which produced a subarachnoid haemorrhage that was fatal. In giving the judgment of this court Pill LJ remarked:

"9. .... The cause of death was a subarachnoid haemorrhage caused by a combination of the twisting of his neck by the blow, the angle of the blow, and the dilation of blood vessels that occurred in a man who had been drinking. The medical evidence was that it was a very unusual combination of circumstances which caused the death, though the doctor added that in his experience the combination had occurred more often recently."

The court remarked that the combination of factors which led to the death was a very unusual one and might have amounted exceptional circumstances permitting a non-custodial disposal. But having regard to the facts as a whole, the seriousness of the offending was such that it had to be marked by a custodial sentence. The court placed this at the bottom of the bracket for this type of case. It quashed the sentence of eighteen months' imprisonment that had been imposed and substituted a sentence of nine months.

22. In the other cases significantly longer sentences have been imposed. In some of those Coleman has been cited in the judgment and reasons given for imposing a longer sentence. A few of them are hard to reconcile with Coleman . In almost every case there has been one or more aspects of the offender's conduct that was particularly unattractive. Cases which can be reconciled with Coleman are Kearney and Attorney General's References 3 and 4 of 2005 ( R v Crowley and Llewellyn ) [2005] EWCA Crim 574. Those were both cases where heavier sentences were imposed than that in Coleman , but in neither case had there been a plea of guilty.

23. Cases at the top of the range were R v Harrison [1996] 2 Cr App R(S) 250, where a sentence of four years was held to be appropriate; R v Hamar [2001] 2 Cr App R(S) 295, where a sentence of 54 months was held to be appropriate; R v Rumbol [2001] 2 Cr App R(S) 299, where a seven year sentence was reduced to six years; and Attorney General's Reference No 100 of 2001 ( R v Welch ) [2002] 2 Cr App R(S) 365, where the appropriate sentence was held to be four years.

24. In each of these cases one can readily identify the features that led to the sentence differing so markedly from that in Coleman , though in some it is open to question whether the increase in the sentence was proportionate.

25. In two recent cases a particular factor has been identified as justifying a heavier sentence. That is the need to mark and to discourage the growing tendency, particularly in the young, to get drunk in clubs and public houses and then to resort to violence in the streets. The first such case to which we have been referred was Attorney General's Reference No 9 of 2004 , where this court was presided over by the Deputy Lord Chief Justice, Judge LJ. The facts of that case were that the victim, a 66 year old man, was walking home down a public street, where he encountered two youths, one of whom (the offender) without any reason punched him in the face causing him to fall over backwards and to fracture his skull in a manner that proved fatal. The two youths then ran way. Judge LJ remarked:

"10. .... having considered the very many authorities which we have now considered, it is in truth not realistic to treat what is described as one-punch manslaughter as comprising a single identical set of circumstances. Cases involving death which result from a single blow vary greatly in their seriousness. That fact is reflected in the very wide range of sentences which have been imposed by different courts dealing with them."

We would endorse that comment. Judge LJ continued::

"15. What has struck us, as we have considered this case, apart from the particular circumstances which we have already endeavoured to outline in this judgment, is that this kind of unnecessary violence, in residential areas, creates great, and justified, and increasing public concern. People expect their streets to be safe, and they particularly expect them to be safe for children using them and for the elderly walking in them. This case, if nothing else, has the aggravating feature that two children saw this man poleaxed to the ground and left there unconscious.

16. Those who are violent, as this offender was, and in the circumstances in which he was, have to face up to the consequences of their actions, even if the consequences were unintended."

The court determined that the appropriate sentence for the offender was three-and-a-half years' imprisonment.

26. The other case where this factor was highlighted was R v Dulu Miah [2005] EWCA Crim 1798. In that case there was a plea of guilty. Drink was the explanation of what had happened. After a fight the appellant followed the victim and struck him on the jaw. He fell and cracked his skull. The appellant then drove off. Davis J, giving the judgment of the court, said:

"22. In the present case there was a plea and certainly there was a good deal of personal mitigation available. Moreover, the blow was accepted as being one of moderate force, and further, there had previously been, as the judge found, some degree of provocation. But, as against that, this blow was administered as the culmination of what had been, in effect, quite a nasty incident of affray in a busy town centre at night. The appellant, on any view, had played a full and active part in that. Further, it was he who followed after the victim (plainly, it is to be inferred, bent on revenge) when the victim was trying to remove himself from the scene and had walked away....

23. There is also the important point that the Courts must, as we see it, increasingly factor into sentences in this kind of case the need to deter gratuitous violence in city centres, or outside pubs and clubs, which causes such city centres or places to be perceived as menacing and dangerous places at night by the law-abiding public."

27. Counsel for the Crown also referred us to R v Rees and Others [2005] EWCA Crim 1857, which was not a manslaughter case, where Lord Woolf CJ, presiding over this court, dealt with a number of young defendants who had been given heavy sentences between two and three months' imprisonment for taking part in riotous conduct after football matches. Lord Woolf commented:

"9. .... When it is the habit of young men (and young women) to drink excessively and then behave out of character, it is important that the courts send a message that there are very real dangers in embarking in that sort of binge drinking. It may cause a person to behave in a way which is out of character. While the courts wish to be sympathetic towards offenders, they must bear in mind the consequences of the offence as a whole on the public. The problem is that when drinking at this level takes place, what starts as an exhibition of high spirits descends into conduct which is criminal."

Those words are plainly of application in a context such as the instant case.

28. To summarise these authorities, Coleman , where a sentence of twelve months was imposed is the starting point where there is a guilty plea and no aggravating circumstances. But where there are aggravating circumstances an appropriate sentence can rise as high as four years, depending on the particular facts. Getting drunk and resorting to violent behaviour under the influence of drink will be a significant aggravating factor, particularly where the violence occurs in a public place. Lord Lane drew a distinction between the facts in Coleman , where the victim sustained his fatal injury as a result of being knocked to the ground by the blow and striking his head, and the case where the injury that results in death is directly caused by the punch. That may be a valid distinction where the fatal injury is caused because the blow is particularly severe. However, we can see no reason to draw that distinction where the severity of the injury was not reasonably to have been foreseen. This is such a case. A subarachnoid haemorrhage is, happily, a very unusual consequence of a punch. We have referred to the evidence in Grad , which indicates that heavy drinking can result in dilation of the blood vessels and increase the vulnerability of an individual to such injury. In this case the appellant could not reasonably have foreseen that the single punch that he delivered would have such tragic consequences.

29. The judge treated the fact that the appellant had been drinking heavily during the previous evening as an aggravating factor. We question whether this was justified. The evidence does not suggest that the appellant was liable to behave violently when in drink, nor that drink had made him violent on this occasion. He had, furthermore, been sleeping off the drink for three hours or so before the offence occurred. His violence appears to have been a reaction to learning that his friend had behaved in an unacceptable manner towards his (the appellant's) partner. This did not excuse the reaction, but such a reaction on his part was explicable, whether affected by drink or not. Apart from drink, there was no other aggravating factor.

30. There were mitigating factors. The appellant struck a single blow of moderate force. He showed responsibility after Skelton fell to the ground in assisting in attempts to resuscitate him. There is no doubt of his remorse. He had killed a close friend. He has the benefit of a guilty plea made at the earliest opportunity.

31. We turn back to Coleman . We can see no reason on the facts of this case to go beyond the recommended starting point of twelve months. Accordingly, we quash the sentence imposed and substitute a sentence of twelve months' imprisonment. To that extent this appeal is allowed.