England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		10 February 2010

THE LORD CHIEF JUSTICE:

1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which she considers to be unduly lenient. We grant leave.
2. The offender is Darryl Church. He is aged 18, having been born on 26 May 1991. On 19 November 2009, at Bristol Crown Court, having earlier pleaded guilty on arraignment to manslaughter, he was sentenced by Burnett J to 20 months' detention. There was no written basis of plea. The offender had a significant previous conviction. Sentence was adjourned pending the preparation of a pre-sentence report.
3. In summary, in the early hours of 9 May 2009 the offender was one of a group of five young men standing about on a pavement in Gloucester. Although he had been drinking, this is not a case of drunken violence.
4. The victim was 23 year old William McNaught. He, too, had been drinking, but the drink he had taken played no part in what happened to him. He approached the group of five men, of whom the offender was one. He was neither threatening nor aggressive. For no reason, and without warning, the offender delivered a very heavy punch hard to the side of his head. The blow ruptured an artery at the base of the brain stem. The victim was immediately rendered unconscious and death followed, not from any impact with the ground or anything on the ground but as a direct result of the blow administered by the offender. The incident was captured on CCTV footage and we have seen the recording.
5. The offender's previous conviction was for assault occasioning actual bodily harm. The offence was committed in December 2007. Although he had been drinking on that occasion, drink played no part in the violence. On this occasion the victim was punched to the head. The blow was so hard that the victim was knocked out and his jaw was broken in two place.
6. The facts in a little more detail are these. The victim, William McNaught, was 24 years old, having been born in October 1985. He was a member of a large and close family. On the evening of 8 May he went out with his girlfriend and a friend who was the boyfriend of the victim's sister. There was a little trouble between the victim and his girlfriend, but that has no relevance to what happened later.
7. Eventually the victim decided to go home. He got into a car. At about 1am, the car passed the group of five young men which included the offender. The victim noticed that in the group was a man known as "Pinky". The victim had recently made an allegation of minor assault against Pinky. Indeed on that very day Pinky had answered bail in respect of the alleged minor assault. The victim asked the driver of the car to stop because he wanted a word with Pinky. The victim got out of the car and walked towards the group. He was somewhat unsteady on his feet. He approached the group, calling out to Pinky. As the CCTV footage shows, his arms were by his sides and his palms were open. He was neither threatening nor aggressive. The only person to whom he wished to speak in the group was Pinky.
8. As the victim approached the group, he was pushed away by one of its members. The group then huddled together. Pinky walked towards the victim, but then stopped and turned away. The offender went between them and, without pause or warning, he delivered the punch with his right fist to the left of the deceased's head. It was a hard punch in which the full body weight was used. The victim fell immediately unconscious into the road.
9. Pinky went to help the deceased. He said to the offender, "What have you done?" The offender said nothing but ran away. The friends of the deceased immediately ran to offer what help they could. The victim was moved out of the road and onto the pavement. An ambulance was called. A passing police car was flagged down. Although when the police officers first examined the victim he was breathing and they found a pulse, he very quickly went into cardiac arrest. He did not regain consciousness. Despite the best efforts of the doctors and nurses at the Gloucester Royal Hospital, he died shortly after 1.10am that day.
10. The cause of death was a direct result of the blow administered by the offender. It resulted in bleeding from around the base of the brain stem from a rupture within a small arterial blood vessel that runs over the surface of the brain stem. Such injuries are associated with rotation and extension of the head on the neck. They occur in particular as a result of blows to the side of the face.
11. The offender ran from the scene immediately after delivering the punch. He was soon followed by Pinky and another member of the group. They asked the offender why he had behaved as he had. He replied that he thought that the deceased was "going to start".
12. A police helicopter passed nearby. The offender changed his appearance by removing the light-coloured jacket he was wearing and he went off on his own.
13. At 9pm he was arrested on suspicion of murder at his home address. He made no reply after he had been cautioned. In his first interview he admitted that he had been present at the time when the deceased was punched, but denied that he had been responsible for the blow. He was told that others in the group had said it was he who had been responsible. He continued to deny it, swearing that he had not punched anyone. However, by the second interview he faced up to the realities. He said that he had lied because he was scared and "in shock". He admitted that he had punched the deceased and that he had done so because he thought that the deceased was about to attack Pinky. He admitted that he had drunk some whisky that night. His account of how much he had drunk varied. However much alcohol he had consumed, on the Crown's case it was not a significant factor.
14. In due course, in accordance with his admissions, he pleaded guilty to manslaughter.
15. The previous conviction occurred when the offender was 16 years old, in December 2007. On this occasion he and others had been drinking. There was an argument between again Pinky and another man. Again the offender involved himself for no good reason. He delivered a blow to the other man's head. The blow rendered the man unconscious and fractured his jaw in two places. When this matter was investigated, the offender claimed that he had delivered the punch because he thought that he was about to be assaulted.
16. In April 2008 he pleaded guilty to assault occasioning actual bodily harm. It was a very serious offence of assault occasioning actual bodily harm, but the offender was very young and at that stage of good character. He was sentenced to a 12 month Referral Order and ordered to pay compensation.
17. The offender lived with his parents and younger sister in the Gloucester area. He had completed some prospect training but he had been unable to obtain employment. Character references from school, from work training and from social friends were provided to the court.
18. The pre-sentence report examined the facts known about him and assessed that the offender presented a high risk of serious harm to the public, particularly young adult males. That conclusion inevitably followed from the two offences of violence of which the offender had by then been convicted.
19. The Attorney General acknowledges the following mitigating factors. The offender had pleaded guilty on arraignment, at the first reasonable opportunity, for which he was entitled to a full discount from the sentence that would otherwise have been appropriate. There is evidence of his remorse, and he is still only 18 years old.
20. On the other hand, this is yet another tragic death resulting from yobbery in the street. We have read the victim impact statement. Words cannot do justice to the grief that has been caused to the family of the deceased. Nothing the deceased did that evening justified any violence being shown to him. He did nothing which amounted to provocation; nor was he looking for trouble. It is true that his death resulted from a single punch delivered on the basis of the plea accepted by the Crown, without the intention required for murder. However, it was a very heavy blow, delivered with full force. It was enough on its own to produce the fatal injury. The subsequent death had nothing to do with any post-impact collision by the deceased's head on the ground or with some object, or as the result of some other factor.
21. Although the offender was still young, he knew the damage that can be caused by a full-force blow to the head. The earlier incident should have been a dramatic lesson to him. So, although he was young, this was not the first time that he had committed a crime of violence. He should have appreciated, and we have no doubt he must have appreciated, the injuries that may be caused by a single, heavy punch to the head.
22. The sentencing judge reflected on the existing guidance without the advantage of this court's recent analysis of very, very many of the sentencing decisions in this class of case which is compendiously described as a "one punch manslaughter case", although such a description fails to do justice to the many different circumstances in which a single blow can cause death.
23. We have re-examined this sentence in the light of the decision of this court in Attorney General's Reference Nos. 60, 62 and 63 of 2009 (R v Appleby and Others) [2009] EWCA Crim 2693. We acknowledge the mitigating features correctly taken into account by the judge. None was wrongly taken into account. The discount for the guilty plea plainly had to be allowed, and some small allowance had to be made for the fact that, notwithstanding the first conviction, the offender is still young. It is accepted on behalf of the offender that the sentence was a lenient one in all the circumstances, but the contention is that, looking at previous cases and looking at the matter in the round, it would be wrong to treat the sentence as unduly lenient.
24. We disagree with the submission made on behalf of the offender. In our judgment this was an unduly lenient sentence. It must be increased to one of three-and-a-half years' detention.

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