England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Newcastle Crown Court Quayside Newcastle upon Tyne NE1 3LA
		9 April 2008

Wednesday 9 April 2008

THE LORD CHIEF JUSTICE: I will ask Mr Justice Wilkie to give the judgment of the court.

MR JUSTICE WILKIE:

1. On 9 November 2007, at the Crown Court at Newcastle, the appellant, Jeffrey Gosling (now aged 19), pleaded guilty to manslaughter. On 21 December 2007 he was sentenced to three years' detention in a young offender institution (with a direction under section 240 of the Criminal Justice Act 2003 that 116 days spent on remand should count towards the sentence). He appeals against that sentence with the leave of the single judge.
2. The facts giving rise to the conviction can be shortly stated. Mr Fellows was 51 years old, the father of three children aged between 18 and 25. He was an electrician by trade, but since 2005, following the death of his father, he had taken up responsibility for running a club in Wallsend previously operated by his father.
3. On 24 August 2007, Mr Fellows had spent the day carrying out improvements at the club, at the end of which he had a drink with customers. He had about five bottles of cider and left at around midnight. He decided to walk home rather than to accept the offer of a lift as he wanted to enjoy the fresh air of the evening. As he made his way home, he came across the appellant and two others, Mr Hall and Ms Cain. It is unclear exactly what happened, but the witnesses stated that the appellant and Mr Hall started verbally to abuse Mr Fellows and seemed to try to provoke him into violence. Mr Fellows, however, did not respond. Ms Cain intervened and persuaded the appellant and Hall to walk away (at any rate initially). However, the appellant suddenly turned round, ran back after Mr Fellows, attacked him from behind and struck him on the jaw. Mr Fellows, who was a big man (6ft 4in tall, weighing about 16 stone) immediately fell to the ground and cracked his head on the pavement. Witnesses to the attack described the appellant as dancing across the road with his arms over his head in jubilation after Mr Fellows had fallen to the ground. He and Mr Hall then made off.
4. An ambulance was summoned. One of the witnesses who had seen part of the incident decided to take his car to try to find the appellant and Hall. When he did so, they threw bricks at his car. That witness decided to retreat. However, the police, who had been summoned to the scene, found the appellant a short distance away. After he had been arrested he tried to run off and had to be forcibly restrained.
5. When the paramedics arrived at the scene they found Mr Fellows in a poor way. They succeeded in rousing him from unconsciousness, but he was sleepy and repeatedly vomited. He was taken to hospital where eventually it was found that he had suffered multiple skull fractures and extensive intracranial bleeding. He survived for about 36 hours but then died. The cause of death was the extensive fractures to the skull and subsequent bleeding, bruising and swelling of the brain.
6. When interviewed the appellant initially declined to comment. He then gave an account claiming that Mr Fellows had instigated the violence and that he (the appellant) had acted in self-defence. He said that he had not tried to help Mr Fellows when he fell to the ground because he did not think that he was seriously injured. In interview he denied the celebratory conduct described by witnesses, and denied throwing bricks at the car of the member of public to which we have referred.
7. The appellant has some previous convictions, none of any great seriousness. However, in August 2005 he was fined for being drunk and disorderly. In September 2007 he received a conditional discharge at a magistrates' court for criminal damage. In addition, in June 2007 he received a police caution similarly for criminal damage. He had the advantage at the trial of 13 character references which were produced to the court. We too have read those references. They are from family friends, neighbours and employers, who write of him as a mild mannered, kind man, and that this offending was wholly out of character.
8. In addition, placed before the trial judge were a number of victim impact statements from Mr Fellows' wife and the immediate members of his family. The judge made reference to those in his sentencing remarks.
9. In sentencing, the judge stated that the appellant was entitled to the maximum credit for his timely guilty plea. He then briefly described the circumstances of the offending, including his having danced around and appearing to be jubilant at what he had done. The judge accepted that the appellant could not have known at that time that he had just, in fact, killed Mr Fellows. The judge went on to express himself as follow:

"These cases are amongst the most difficult that any court has to sentence. On the one hand no one can be insensitive to the grievous loss the Fellows family have suffered, no one can be anything other than extremely moved by the witness impact statements that Mrs Fellows, Sarah, Catherine and Mrs Love have written. Their profound grief and sense of loss shines through every word.

It must be clearly understood that the sentence this court will pass is not and can never ever be a valuation of the life that has been lost. No court can ever restore Mr Fellows to his family; no sentence can ever be long enough for a grieving widow and children, and no sentence can ever match their loss. No sentence on you can ever equate to the sentence that has been passed already on the family. That will last for ever."

We entirely agree with those sentiments. The judge then went on to state that it had to be understood that the court had to proceed in accordance with principle and in accordance with authority laid down by the higher courts, and had to bear in mind that the unlawful act was not done with any intention to kill or cause really serious bodily harm. Notwithstanding the fact that the result of his actions was the death of Mr Fellows, equally it had to be kept in mind that it had not been the appellant's intention. The judge went on to say that, having read the glowing character references, he accepted that this level of offending was completely out of character. Having read the appellant's own letter to the court, he accepted that the appellant was genuinely remorseful for what he had done. He referred to the two relatively minor previous convictions which did not aggravate the offence. He had, as he was obliged to, considered whether an indeterminate sentence was appropriate, but had concluded that the justice of the case could properly be met by a determinate sentence, and the sentence which he passed was one of three years' detention.

10. The grounds of appeal are that in all the circumstances of the case the sentence was manifestly excessive; that insufficient account had been taken of the fact that the offence consisted of a single punch of moderate force, which resulted in tragic consequences; the appellant's early guilty plea; his genuine and deep remorse; his record; and the evidence of his positive good character as demonstrated by the testimonials before the court.
11. A number of authorities were cited. We will return to those in a moment.
12. Initially in the grounds of appeal it was suggested that the appropriate level of sentence was between 12 and 18 months. Mr Adams this morning has been less specific. He has accepted that in the circumstances of the case a sentence of in excess of 12 months was appropriate, but he says that one as long as three years was manifestly excessive.
13. In granting leave, the single judge said that the grounds were arguable if the case was regarded as comparable with R v Furby [2005] EWCA Crim 3147, but not if it was comparable with Attorney General's Reference No 9 of 2005 [2005] EWCA Crim 812.
14. As we have indicated, we were referred to a number of authorities, but it is unnecessary for us to go through them in any detail because a different constitution of this court, presided over by Lord Phillips CJ, in R v Furby conducted a comprehensive review of all the relevant authorities. The facts which gave rise to the killing in Furby were far removed from the present case. The mechanism of death following a single blow was different and medically highly unusual. It is also to be observed that the appellant Furby did not leave the scene but in fact attempted to help the person whom he had just fatally wounded, who was in fact a good friend of his. Addressing the question of principle in Furby the court said as follows:

"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."

The court then referred to R v Coleman (1992) 13 Cr App R(S) 508, where the authorities up to that point had been reviewed and the court had expressed the view that a starting point for such cases of 12 months was to be adopted. The court in Furby then went on to indicate that they had been referred to no less than 19 appeals which had been heard since Coleman. A number of the cases which were then referred to were cases which were referred to us and which formed the basis of the grounds of the appeal. Amongst the cases reviewed in Furby was Attorney General's Reference No 9 of 2005 [2005] EWCA Crim 812, to which reference was made by the single judge. At paragraph 25 of the judgment in Furby, the court said as follows:

".... 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 away. 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."

Attorney General's Reference No 9 of 2005 was a case where, upon a conviction, a sentence of two years' imprisonment was increased by the Court of Appeal to three-and-a-half years' imprisonment. The court in Furby at paragraph 28 drew the authorities together in the following terms:

"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. ...."

15. In R v Roberts [2005] EWCA Crim 1305, in delivering the judgment of the court, again presided over by Lord Phillips CJ, Gross J said this:

"12. Ultimately, in our judgment, we are swayed by the need for consistency in sentencing, albeit within a flexible and loose bracket."

We agree with that statement and adopt it as our approach. The present case was one which, in our judgment, called for a sentence at the upper end of the bracket identified in Furby. The victim, Mr Fellows, was a man of mature years, walking home along streets familiar to him in which he should have felt safe. The appellant and another approached him provocatively. They were initially shepherded away by another of their companions. The appellant, however, chose to involve himself again. He returned and struck a blow sufficiently hard to cause the victim, a large man, to fall and sustain the fatal injury to which we have referred. Not only did the appellant fail to comprehend that something serious had occurred, he gloried in his success in striking his victim to the ground and repeated his aggressive behaviour by throwing bricks at a vehicle which was subsequently looking for him.

16. Although it is right to say that in his criminal record the appellant has no previous offences for violence, his record of offending shows a tendency to excessive and unruly behaviour, on occasion in public (though, of course, for criminal behaviour far removed in seriousness from the offence of manslaughter). In our judgment the sentence of three years' detention imposed by this very experienced judge was at the top end of the scale, but by no means outside the bracket of what the authorities indicate as appropriate. We are wholly unpersuaded that it was a manifestly excessive sentence. Accordingly, this appeal is dismissed.