England and Wales Court of Appeal (Criminal Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/1646.html
Cite as: [2009] EWCA Crim 1646, [2010] 1 Cr App R (S) 77, [2010] 1 Cr App Rep (S) 77

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		Neutral Citation Number: [2009] EWCA Crim 1646
		No: 2008/6224/B2

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 17 July 2009

B e f o r e :

LADY JUSTICE HALLETT DBE
MR JUSTICE FOSKETT
MRS JUSTICE SLADE DBE
____________________

	R E G I N A
	v
	EDWARD CELMINS

____________________

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____________________

Mr A Davis appeared on behalf of the Appellant
Mr R Wyn-Jones appeared on behalf of the Crown
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE FOSKETT: On 17th October 2008 at the Carlisle Crown Court, before His Honour Judge Batty QC (the Honorary Recorder of Carlisle) and a jury, the appellant was convicted of manslaughter after a trial lasting five days. On 28th November 2008 he was sentenced to four years' imprisonment with a direction under section 240 of the Criminal Justice Act 2003 that 147 days spent on remand should count towards the sentence. He appeals against sentence by leave of the single judge, an application for leave to appeal against conviction having been refused by the single judge and subsequently abandoned.

On any view the background to this case is a very sad one. In November 2007 both parents of the appellant were killed in a car crash. Whilst there had been problems within the family, largely as a result of his father's alcoholism and violence, the appellant was close to both his parents and had been with them shortly before the fatal crash. He was called to identify their bodies within a few hours of them being together. A psychiatric report available to the judge indicated the difficulties he faced in coming to terms with their deaths over the succeeding months. The report also speaks of longstanding problems associated with alcohol abuse.

He found himself spending more time with the victim in this case, to him known as Uncle Karl. He was the appellant's father's younger brother. He was a heavily-built man, aged 46. He was about five foot nine inches tall and weighed 19 stone and himself had a serious alcohol problem. It does appear that they had a perfectly reasonable and amicable relationship before the events with which this case is concerned. There was no history of any trouble between them.

On 26th April 2008 they spent the afternoon drinking together. After the events with which this case is concerned occurred, each was found to have a blood alcohol content of just over three times the legal limit for driving.

By the early evening an argument started between them concerning a ring that had originally belonged to Uncle Karl's mother, which had been passed to the appellant's mother. The appellant's uncle had previously indicated that he would like it back, an idea to which we understand the appellant was not opposed. However, his stepsister had taken possession of all his mother's jewellery following her death and was unwilling to part with it. This issue arose during the afternoon and the appellant had tried to raise the matter with his stepsister by telephone but to no avail. His uncle became angry about this and vented his anger towards the appellant, stabbing a coffee table with a knife, slightly cutting himself on the chin and then advancing towards the appellant with the knife. This, we should say, represents the appellant's version of events, but there is no reason to doubt the substance.

The appellant's uncle would not be subdued and on the second occasion when he moved towards the appellant, though not on this occasion with a knife, the appellant placed him in a headlock. The purpose, he said subsequently, was to subdue him. He said the headlock lasted for less than a minute. The combined view of the evidence from the consultant pathologists instructed was that the force applied was "considerable", causing a fracture of the thyroid cartilage and causing deep bruising to the neck. However, they were also of the view that the pressure could have been applied over as little as 15 to 20 seconds for there to have been sufficient oxygen deprivation to lead to death. The only difference between the pathologists was the effect, if any, of the obesity and intoxication to the appellant's uncle - one taking the view that it had no effect; the other being of the view that it would have exacerbated the effect of neck compression. It probably matters little for present purposes. However, the effect of the combined view of the pathologist was not to undermine the general account given by the appellant of what occurred.

The appellant left the flat after his uncle collapsed to the floor, his version being that he thought his uncle had just been knocked out. He rang his girlfriend and told her about the incident. She asked him if his uncle was all right. He said he did not know. She went round to the flat and found the body of his uncle.

The appellant subsequently surrendered to the police. When interviewed he admitted killing his uncle but said he had acted in self-defence since earlier his uncle had come at him with a knife. He said that he held him in a headlock for less than a minute but his uncle had collapsed. He said he did not intend to harm him. His defence at the trial was one of reasonable self-defence. The jury must have rejected that on the basis that the force used was more than reasonably justified in the circumstances, particularly as the force was not applied as an immediate response to a threat of the knife. Whilst that was undoubtedly the view of the jury, it does not negate the proposition that the appellant had been subjected to some considerable provocation.

The judge, who faced a difficult and sensitive sentencing exercise, accepted that the headlock he applied to his uncle was "not of long duration and could have been for as little as between 15 to 30 seconds", but went on to say that "the fact of the matter is that at the time that he met his death he posed little or no threat to you, that in real terms there was no real or actual violence being done by him to you and, for reasons that were never clear during the course of the trial, you applied that headlock to him."

The judge referred to the fact that the trial had been contested and that the appellant was 25 years of age with some convictions for assault in 2003 and 2004. The offence, he said, was committed whilst the appellant was the subject of a community order for criminal damage and possession of cocaine.

The judge was referred to the case of Morgan [1993] 14 Cr.App.R (S) 734 and to the case of Frankcom [2003] 1 Cr.App.R (S) 22 and during the course of his sentencing remarks made some comparison between the circumstances of this case and the circumstances of the case of Morgan. However, these were not guideline cases. All cases of this nature are fact-sensitive and we, for our part, have not found reference to them to have been of assistance.

As we have said, the judge faced a difficult sentencing exercise, as indeed does any judge in this kind of case. However, it seems to us that notwithstanding the points ably made to us today by Mr Davis, the judge had the great advantage of presiding over the trial and, accordingly, was very well placed to assess the true criminality of the appellant and to assess where the appropriate sentence was within the relevant bracket. He plainly had the correct bracket in mind. We acknowledge the tragic nature of the background circumstances, but our consideration has to be guided by whether we consider the sentence to be manifestly excessive. We do not think that the sentence imposed by the judge passes that threshold and accordingly this appeal is dismissed.