ON APPEAL FROM Crown Court at Chelmsford
Her Honour Judge Lynch QC
T201707030 & T201707035
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HON MRS JUSTICE NICOLA DAVIES DBE
THE HON MR JUSTICE HADDON CAVE
| HOBBS and DM
|- and -
for the First Appellant
Mr Charles Sherrard QC (instructed by Criminal Defence Solicitors) for the Second Appellant
Mr David Matthew (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 11th April 2018
Crown Copyright ©
Lord Burnett of Maldon CJ:
"neither of you realised that the man was going to die but you must have realised that it would cause him some harm. A confined space, he was asleep, he would be wakened by it, what did you think he was going to do? Your actions were reckless they were stupid and they were dangerous."
The conviction renewal
"The very long grounds of appeal have been reduced to a shorter document containing eight grounds. I have examined each of those grounds and found no merit in any of them… There is no reason to doubt the safety of the conviction."
On the only ground now pursued, the single judge observed:
"This was a decision which fell well within the trial Judge's area of discretion and there is no basis for this court to interfere. The point made by the Judge, correctly, was that the allegations were unproven and the evidence about them untested. As such, they could not have any 'substantial' probative value."
We agree with the single judge and, despite the detailed argument we have received in writing and orally, we consider that there is no merit in this ground of appeal and also that the conviction is plainly safe. The introduction of the allegations relating to conspiracy to rob, the evidence of the photographs and possession of the Oyster card were of limited probative value given the wholly different nature of the respective offences. The allegations relating to the conspiracy were no more than that, allegations. They were not convictions. To have even theoretical value, the jury would need to have been sure of DM's guilt in connection with the allegations, something which would have required a satellite trial.
"The offence was committed as part of a group, it was planned to the extent that you [DM] took them back to the car where Mr Meshi was sleeping, knowing that they were going to throw or [Hobbs] was going to throw the flare inside. Without you [DM], she could not have committed the offence. There was in my view no peer pressure from her, no force or intimidation and so therefore I deal with you on the same basis."
"You are an adult. I take on board Mr Badenoch's submissions that you are only just 18 and I take on board everything he said about what you might or might not have realised when you were igniting that flare and throwing it into the car where the sleeping man lay…"
She took account of Hobbs' academic results and the fact that she attended college.
"I am bound to take into account the overarching principles dealing with children and young people. You are just 16 years of age but you are a young person. I am bound by those principles to take into account and have regard to the principal aim of the youth justice system which is to prevent offending by children and young people. I am also bound and must take into account the welfare of you and that takes into account securing proper provision for education and training, removal from undesirable surroundings wherever appropriate and choosing the best option for you."
The judge added that she had taken account of DM's background, the detailed psychological report, his emotional and developmental age and maturity as well as his chronological age.
Grounds of Appeal
i) The judge stated that she had to consider "the relevant adult Guidelines". The Sentencing Council has not published definitive Guidelines in respect of the offence of manslaughter.
ii) At the time of the offences Hobbs was aged 17. The Judge erred in sentencing Hobbs as an adult and failed to have regard to her personal background and limited contact with the authorities.
iii) The judge failed properly to adjust sentences as between the appellants to reflect their closeness of age and differences in criminal history.
i) The starting point of nine years for Hobbs may have been manifestly excessive given her age of 17 at the time of the offence. If that is correct, DM's sentence must be manifestly excessive.
ii) The reduction in sentence of one-third as between her and DM is insufficient. No account appears to have been taken of DM's learning, educational and emotional difficulties, his reasoning skills and parental background.
"In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age."
"When sentencing children or young people the court must have regard to the principal aim of the youth justice system which is to prevent offending by children and young people and the welfare of the child or young person" [1.1];
"The approach to sentencing should be individualistic and focused on the child or young person as opposed to the offence. The sentence should focus on rehabilitation where possible. A court should consider the effect the sentence is likely to have on the child or young person as well as any underlying factors contributing to the offending behaviour" [1.2];
"The primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote reintegration into society rather than to punish" [1.4];
"It is important to bear in mind any factors that may diminish the culpability of a child or young person. The children and young people are not full developed and they have not obtained full maturity. As such, this can impact on their decision making and risk taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. …When considering a child or young person's age their emotional and developmental age is of at least equal importance to their chronological age (if not greater)" [1.5].
"For these reasons, children and young people are likely to benefit from being given an opportunity to address their behaviour and may be receptive to changing their conduct. They should, if possible, be given the opportunity to learn from their mistakes without undue penalisation or stigma…" [1.6].
The Guidelines conclude:
"If considering the adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the appropriate adult sentence for those aged 15–17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. The individual factors relating to the offence and the child or young person are of the greatest importance and may present good reason to impose a sentence outside of this range."
"…crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in Schedule 21 of the 2003 Act, but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight. It is with these considerations in mind that we have approached these individual cases, and they will, we anticipate, provide sentencing courts with some assistance about the way in which these difficult sentencing decisions should be approached in future."
"19. …[Appleby was] signalling a significant change in the approach to be taken to cases involving manslaughter arising from a single punch with the bare fist. …
20. Appleby makes clear that whilst there must be a focus on the actions of an accused and his intentions, there should also be a focus on the catastrophic consequences of the offence, namely the death of the victim. …
21. Appleby clearly signalled that crimes of violence of this sort resulting in death were to be dealt with more seriously than hitherto, albeit that the court, in dealing with the matter as an offence of manslaughter, must treat the fatal consequences as having been unintended. Were that not the case, the appropriate charge would have been one of murder."
"26. In Rowell  1 Cr App Rep (S) 116, p 682, the Appellant, who contested the case, had struck the deceased a very heavy blow, resulting in his hitting his head on the pavement and suffering a fatal injury. That event had been preceded by some earlier violence on the part of the Appellant. The Appellant had some convictions for violence or public order matters. The court described the case as falling at the upper level of sentencing for such a case of manslaughter and reduced the sentence of seven years to six years to reflect certain factual errors made by the judge which had wrongly aggravated his assessment of the case. It is to be emphasised that the figure of six years arrived at did not include credit for a guilty plea.
27. In Gray  1 Cr App Rep (S) 73, the Appellant did plead guilty. He had delivered a forceful punch, described as a terrible blow, at night in a busy street to the victim, who was on the phone to the police after some trouble in a club. The Appellant was powerfully built. The judge found that the punch was delivered to an unsuspecting victim and was likely to cause harm. The Appellant had simply walked off after seeing the victim fall to the ground. That Appellant had a previous record for violence, including matters of assault occasioning actual bodily harm, affray and threatening behaviour. The sentence of four years and eight months was said to be at the top end of the bracket but not manifestly excessive.
28. In Lee, to which we have already referred, the offender was convicted after a trial. He had punched a man with learning difficulties, which the judge found the Appellant must have been aware of, with a blow so hard that it ruptured the neck arteries. The Appellant had a bad criminal record but not for violence. The court dismissed a renewed application for leave to appeal against a sentence of seven years, holding that the sentence fell within the upper levels for such an offence but that it was not manifestly excessive.
29. In Duckworth  EWCA Crim 1712,  1 Cr App Rep (S) 83, p 454, a blow was struck which knocked the victim unconscious so that he landed heavily with his head hitting the road. It was described as gratuitous violence to an innocent victim who was backing away. The blow was said to be of considerable ferocity and the Appellant then kicked out at the victim as he lay on the ground, albeit that there was no evidence that he connected with him. He then aimed a blow at a friend of the deceased. That Appellant had 13 previous convictions, including some violent offences. After a trial an extended sentence was imposed which included a custodial term of eight years. This court reduced that custodial term to six years, describing the matter as 'a most serious offence of its kind'.
30. As this court has repeatedly said, decisions of the sort cited are fact specific, but it is clear that since Appleby there has been a relatively consistent approach to the levels of sentence in cases of the type this court is concerned with today."
"Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R v Peters  EWCA Crim 605,  2 Cr App R(S) 101 is an example of its application: see paras -. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays. Experience of life reflected in scientific research (e.g. 'The Age of Adolescence': thelancet.com/child-adolescent; 17 January 2018) is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday."