Neutral Citation Number: [2009] EWCA Crim 88
Case No: 2008/05740/A5
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Tuesday 20 January 2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  PITCHFORD

and

MR  JUSTICE  RODERICK  EVANS

ATTORNEY GENERAL'S REFERENCE No. 64 of 2008

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988
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R E G I N A

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RICHARD  WYATT
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Mr A Jafferjee QC appeared on behalf of the Attorney General

Mr P Wishlade appeared on behalf of the Offender
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J U D G M E N T

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer to this court for review a sentence imposed by the Recorder of Middlesbrough (His Honour Judge Fox QC) which she considers to be unduly lenient.  We grant leave.

2.  The offender is Richard Wyatt.  He is 23 years old.  He was born in November 1984.  He has made previous court appearances.  On 12 September 2008, in the Crown Court at Teesside, he pleaded guilty to a single count of manslaughter.  On 2 October 2008 he was sentenced to 18 months' imprisonment.

3.  This is a tragic case.  Gavin Robinson was 30 years old.  He was a qualified accountant and employed in that responsible capacity by his local authority.  He also worked part-time on an evening.

4.  After work on the evening of Friday 13 June 2008 he met with his friends for a drink.  Shortly after midnight he left in order to walk home.  His route took him along Westbury Street, which was very close to his home.  As he made his way there he spoke twice on his mobile phone to his girlfriend, first at 12.30am and then at 12.52am.  

5.  Mr Robinson and the offender were complete strangers to each other.  Their encounter was entirely fortuitous.  Outside a public house in Westbury Street a group of youths had begun to congregate.  One of them, Vaughan Donachie, had had a good deal to drink.  The offender arrived and joined the group.  There was an altercation between the offender and Donachie over a cigarette.  The offender pushed Donachie so forcefully that he fell to the ground.  He then assisted him to get up and he apologised.  The group was behaving in a rowdy, drunken way.

6.  About three minutes after Donachie had been pushed to the ground Mr Robinson arrived in Westbury and walked past this group.  One of them, a young woman, observed the offender shout at Mr Robinson and then walk towards him.  He asked Mr Robinson if he had a "fag", to which Mr Robinson replied that he had not.  At that point, for no reason whatever, the offender punched Mr Robinson in the face.  As a result of that punch Mr Robinson fell straight back.  He hit the ground and there was an audible cracking noise.

7.  Some of the group ran to where he lay.  He was obviously very seriously injured.  One of the group approached the prone, motionless victim who was lying on the ground and searched his pockets.  Nobody knows who that was.

8.  A witness who was waiting at a bus stop saw the offender strike the victim with a single punch.  She described how Mr Robinson was poleaxed as a result.  After he had done this, the offender approached her and said, "It wasn't me, I didn't do it".  He then said that he had really hurt him, he had killed him.  He asked if she would see if the victim was all right.

9.  As the group waited for the arrival of the emergency services, they moved to the car park of the public house.  The offender said that he had only punched the victim.  A witness said, "You're out of order.  I think you've killed him".  The offender replied that he would be all right, he was breathing.

10.  The offender made his way to a friend's house after giving the police, who had arrived at the scene, the victim's keys and a train ticket which he had picked up from the ground.

11.  Because Mr Robinson's wallet had disappeared, he was not able to be identified.  His wallet was, in fact, found later in an adjacent street.  But while the emergency services did what they could, and when he was taken to the hospital, nobody knew who he was.

12.  At the friend's house the offender said that he thought he had killed someone.  He said that he had punched the man who fell on the ground.  He went to the home of the woman with whom he had an intermittent relationship, and who was the mother of his child, and said to her that he thought he had killed someone that evening.  He then advanced a story of how the man whom he had struck had tried to take a punch at him and missed.  He said that he had put his arm out, hit him once and he had fallen to the ground.  It is only fair to the offender to record that that untruthful account was later abandoned by him.

13.  Mr Robinson was taken to hospital.  A CT scan revealed that he had suffered a serious brain injury due to multiple haemorrhaging.

14.  The offender was arrested on 14 June 2008.  At that stage he said that a lad had walked past, that the group had shouted abuse, and that someone else had hit him.  He denied that he was responsible.  He gave a description of the alleged attacker.

15.  In the meantime Mr Robinson's condition deteriorated.  On 23 June 2008 life was pronounced extinct.

16.  The offender has previous convictions.  He has never served a prison sentence.  His convictions can be summarised as "yobbery".  He was drunk and disorderly in 2005.  He was in possession of a bladed article in 2007, for which he was made subject to a community order with supervision.  A caution was administered for a common assault following some foul-mouthed language between him and a friend.  Six weeks before this terrible event, on 28 April 2008 he was convicted of racially threatening behaviour.  For that another community order was made with a 21 day curfew requirement.  The offender was subject to that order; but more important (although Judge Fox was not made aware of this when he passed sentence), the offender was on bail at the time for offences of burglary and criminal damage.  The location of the criminal damage was also in Westbury Street.

17.  We have read the pre-sentence report.  We do not propose to refer to any of its contents.  Our attention has been drawn to the letter written by the offender to the sentencing judge.  It is suggested on behalf of the offender that the letter expresses remorse and seeks to give some insight into a realisation of the consequences of the offence to Mr Robinson's family.  The point made by Mr Wishlade on the offender's behalf is that it is not a self-serving letter.  

18.  Each member of the court has also read the deeply moving statement made by Mr Robinson's older sister speaking on behalf of all of his family and his many friends.  Mr Robinson was a greatly loved and much admired young man.  His premature death has brought profound grief and distress to those who knew and loved him.  

19.  Notwithstanding the fact that an innocent man died on the streets, the offender was not convicted of murder.  He was convicted of manslaughter on the basis that when he threw the punch which knocked the deceased to the ground, he did not intend either to kill him or to cause him grievous bodily harm.  This court, as was Judge Fox, is obliged to deal with the case on the basis that there was no intention to kill, nor to cause grievous bodily harm.  It was manslaughter, not murder.

20.  We have considered the range of sentences for this type of case where a single blow results in death.  We note the twelve month sentence imposed on appeal in R v Furby.  However, Furby was a man of good character.  He had no record for yobbery.  He delivered a single, moderate blow which caused a subarachnoid haemorrhage to a friend of his who, while staying at his house after an evening's drinking together, made an unwanted pass at Furby's partner.  This case is more akin to the kind of case summarised in Attorney General's Reference No 9 of 2005 (R v Uddin) and Attorney General's Reference No 113 of 2006 (R v L).

21.  Cases which involve death resulting from a single blow vary greatly in their seriousness.  The sentencing decision is always problematic.  The starting point, as the cases show, is that in relative terms there is an incident of violence which results in catastrophic injuries and the sad death of another human being.  The consequences of a blow always outstrip the violence intended by the offender.  But, as in this case, in all these cases the dreadful consequences of the blow result from utterly gratuitous violence.  

22.  This tragic death was the result of gratuitous, wholly unjustified violence in a public street, in a residential area, by an inebriated man who had made previous court appearances and who was (although the judge was not aware of it) on bail at the time.  He picked on the deceased as he was walking home.  It was not the first occasion that evening when he had displayed physical aggression.  He was already in an aggressive state of mind when he chose to use unprovoked violence on Mr Robinson who was innocently making his way through the streets on foot to his home.

23.  The offender is entitled to full credit for his guilty plea.  Our attention has been drawn by Mr Wishlade to the circumstances of his behaviour when he discovered that the deceased had, in fact, died.  He must be given full credit for that.  We also take note of the letter that he wrote and the comment by the sentencing judge that this letter showed an indication that the offender fully realised the impact of his thoughtlessness. 

24.  These cases always involve grievous loss.  The sentencing exercise is always difficult.  We are quite clear that the sentence of 18 months' imprisonment was unduly lenient.  We have come to the conclusion in all the circumstances that the sentence should be doubled.  The sentence will therefore be one of three years' imprisonment.

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