England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Friday 12th January 2001

Friday 12th January 2001

1. LORD JUSTICE HENRY: On 27th June 2000 at the Crown Court at Wolverhampton the appellant pleaded guilty and on 24th July he was sentenced as follows: count 2, inflicting grievous bodily harm, three years' detention in a young offender institution; count 3, assault occasioning actual bodily harm, six months' detention in a young offender institution concurrent, a total sentence of three years' detention in a young offender institution. He had originally been charged under section 18, his proffered plea to section 20 being rejected pre trial but accepted by the date of the trial.
2. The basis on which that plea was put forward and ultimately accepted was that this case fell into the special category of cases referred to by the then Lord Chief Justice, Lord Lane, in the case of Coleman (1992) 13 Cr App R (S) 508 at 510, where he said this:

"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 [or, in our case, suffers the most devastating injuries]. It is to be distinguished sharply from the sort of case where a victim on the ground is kicked about the head. It is 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."

3. Lord Lane then went on to summarise the various authorities and in later cases one gets the summary of authorities brought up to date. The submission made to us by Mr Maley on this appellant's behalf is that when one considers those authorities this sentence was out of line and manifestly excessive in the circumstances.
4. The facts were these. On the evening of Saturday 26th June 1999 the appellant and his girlfriend went to a party. They ended up in a public house in West Bromwich, where they argued. The appellant's girlfriend said she was going home and left. The appellant followed her down a high street and was shouting at her. A man called Dyer and a man called Rowley were with the group of people out on a stag night. As that group passed, Rowley said something along the lines of "Leave the girl alone". The appellant ran towards Rowley, and punched him once more to the back of the head. Dyer intervened to separate the appellant and Rowley, and the appellant threw a punch at him. It missed. The appellant's girlfriend and Dyer attempted to calm down the appellant.
5. One of Dyer's group grabbed the appellant. Dyer, with the appellant's girlfriend, intervened to separate them. The appellant punched Dyer once to the face, possibly the temple. Dyer fell backwards and the back of his head hit a raised part of the pavement. The appellant's girlfriend walked the appellant away, remonstrating with him about what he had done. She unsuccessfully attempted to telephone for an ambulance and later asked the appellant to go back and check that Dyer was all right. Rowley and Dyer were taken to hospital. Rowley was found to have suffered tenderness around the left eye and jaw.
6. So far as Dyer was concerned, his injuries were catastrophic. He was found to have a large blood clot over the left side of his brain with evidence of bruising and trauma to the left frontal lobe of the brain. He underwent emergency neurosurgery and was then transferred to intensive care. He suffered dense spastic weakness to his left arm and leg, disordered eye movements, which produced double vision, and a significant loss of vision in both eyes.
7. His progress was very slow. In November 1999 he was transferred to a regional rehabilitation centre. He had severe cognitive impairment, he was memory impaired, his concentration was poor, he was unable to read or write and he exhibited signs of depression and anxiety which at times was overwhelming. He also suffered an impaired bladder and bowel function.
8. A report on his condition a year after the accident found that he had not significantly improved. He remained paralysed and unable to walk. He was dependent on a wheelchair, which he was able to propel and move short distances. He remained incontinent. He was aware of his surroundings and recognised and communicated with his family but remained agitated and depressed. So his condition was made the worse by the fact that he had insight into it. He required help with his daily living and his wife had given up work to look after him. His speech and language had improved, but he had residual problems with complex language functions. His cognitive functions remained impaired and there was no prospect of significant improvement. There is a risk he will develop epilepsy and a small risk of the incontinence leading to kidney damage. Those then are the tragic facts of this case.
9. On Monday 28th June the appellant was arrested when he attended West Bromwich Police Station, having gone there voluntarily when he read about the seriousness of the injuries to Mr Dyer in the newspaper. When interviewed, he said he had been in a temper because of the argument with his girlfriend. He had lashed out in temper and had been grabbed and kicked by Dyer's group. He had got free from them and had then lashed out. He hit Dyer, who fell to the floor, and then he had walked off in a vile temper, kicking shutters. When his girlfriend asked him to go back, he found that everyone had gone. He accepted he had struck as hard as he could, probably trying to knock out Dyer. He told the police he had been an amateur boxer for some time. He accepted that Dyer had wanted no trouble and had wanted him to go away and leave them. It is realistically accepted by Mr Maley on his behalf that this in reality was an unprovoked attack that this man launched.
10. The case presented a difficult sentencing problem to the judge. In his sentencing remarks he said that the appellant had been rightly regarded as a successful and upstanding young man, who had worked hard at a career and enjoyed some success as a sportsman. That sadly was as a boxer. He was far removed from the drunken aggressive thug so often seen in court. However, one punch had left a man with severe mental and physical disabilities. Those mental and physical disabilities had not, of course, been directly caused by the punch. They were directly caused by the head cracking down on the pavement, which, it goes without saying, was totally unintended. The victim's life had been catastrophically ruined. The judge accepted that the appellant could not have foreseen that Dyer would have been so severely hurt, which the prosecution had acknowledged by accepting his plea to the lesser offence of section 20. The offence came about because he had been in a bad temper following an argument with his girlfriend. He used no violence against her but had vented his anger on Dyer and Rowley when they intervened. He was a trained boxer and bare knuckle blows from him were likely to be hard and destructive. Credit was given for the guilty plea and account taken of his age and previous good character, but only a significant custodial sentence was justified. Account was taken that the maximum sentence under section 20 was five years' imprisonment.
11. The reports on the appellant referred to the fact that he trained as a competitive boxer; that he had shown genuine remorse; and that he was acutely aware of the of the impact of his behaviour. He had no previous convictions and had not before indicated any propensity to violence, saying that he had kept his fighting to the ring. Given his attitude towards the offence, the view was formed by the probation officer that the risk of reoffending had been reduced and he was unlikely to become involved in offending of a similar nature. He did not represent a significant risk to the public. All those matters were urged in mitigation.
12. The mitigation was that he had pleaded guilty at the first opportunity; that the fact that he had no previous convictions showed that this was a one-off loss of self-control given his boxing skills; that he was 19, employed and settled; and that he had shown great remorse and awareness as to what had happened. It was stressed that the dreadful and catastrophic injuries were caused not by the punch itself but on striking the back of the head on the raised part of the pavement. That puts this case squarely into the category of single blow manslaughter cases where injuries are not caused by the force of the blow but the contact with the pavement or other matter and that brings it into a totally different sentencing bracket to the cases which Lord Chief Justice Lane had listed to be distinguished from Coleman type cases.
13. The aggravating features were these: this was an unprovoked attack; that he did not stop it at once when people were trying to get him to stop it; and that he had admitted having used his full power in delivering the violent blow that he delivered.
14. In all those circumstances, and considering the authorities, it seems to us that the sentence of three years was out of line. The right sentence, having regard to all the authorities, would be one of two years' imprisonment. We therefore quash the sentence of three years' imprisonment, replace it with one of two, and to that extent this appeal is allowed.