Appleby, R v

In sentencing unlawful act manslaughter, the court must assess both the offender’s culpability and the harm caused. Under Criminal Justice Act 2003, section 143(1), an unintended death must carry substantial weight, although manslaughter must not be sentenced as murder.

The description “one-punch manslaughter” is strictly confined. Sentencing depends on the force used, the circumstances of the violence, the intended injury and whether death was truly exceptional or accidental. Gratuitous public street violence is a serious aggravating feature. A disparity with a co-offender does not justify reducing a murder sentence where the offenders were convicted of different offences.

Three matters were heard together. The Attorney General referred as unduly lenient the minimum term imposed on Appleby for murder, and the custodial sentences imposed on Bryan and Roberts for unlawful act manslaughter. Ben and Tom Cowles appealed sentences imposed following guilty pleas to unlawful act manslaughter.

Each death followed public violence. The court considered the proper sentencing approach where a defendant intended neither death nor really serious harm, but unlawful violence caused death. It also considered whether the individual sentences properly reflected culpability, the catastrophic harm caused, guilty pleas, mitigation and the verdicts returned.

1. The Attorney General’s references were allowed and the Cowles appeals were dismissed. The court held that the earlier sentencing formulation associated with R v Coleman [1992] 13 Cr. App. R (S) 508 could no longer be followed as a general approach. Section 143(1) of the Criminal Justice Act 2003 requires express consideration of culpability and of actual, intended or foreseeable harm. In unlawful act manslaughter culpability is reduced because there was no intent to kill or cause really serious harm, but the actual harm is death and must be given greater weight.

2. Manslaughter remains distinct from murder. Schedule 21 provides no arithmetical measure for a manslaughter sentence. It nevertheless reinforces the legislative emphasis that crimes causing death should generally be treated more seriously. Sentencing must remain fact-specific.

3. The phrase “one-punch manslaughter” should be used only for a single blow with a bare hand or fist. The court must distinguish between a low-force, understandable blow with an exceptional accidental consequence and a forceful, deliberate or unprovoked assault. R v Furby [2006] Cr. App. R (S) 8 remained an example at the very lowest level of seriousness, but did not assist with gratuitous public street violence. Particular attention must be paid to violence in streets and city centres which threatens public safety.

4. Appleby had been convicted of murder. There was no evidential basis for treating the deceased as aggressive or for reducing the sentence on that account. The disparity with Fullam arose because Appleby had been convicted of murder and Fullam of manslaughter. Appleby had to be sentenced on the jury’s verdict. The six-year minimum term was unduly lenient and was increased to nine years.

5. Bryan’s ferocious retaliatory attack from behind, supported by Roberts, involved high culpability and catastrophic actual harm. The sentences were unduly lenient. Bryan’s sentence was increased from three to five years’ imprisonment and Roberts’s from 18 months to three and a half years’ imprisonment.

6. The Cowles brothers’ sustained attack was remote from a true one-punch case. Their sentences of seven years six months and seven years respectively reflected the overall criminality, gave sufficient credit for their pleas and were neither wrong in principle nor excessive. Their appeals were dismissed.

• Court of Appeal (Criminal Division) — The Attorney General’s references in Appleby, Bryan and Roberts were allowed. The Cowles appeals against sentence were dismissed.
• Crown Court at Teesside — Appleby was convicted of murder. His minimum term was initially set at nine years and later reduced to six years.
• Crown Court at Caernarfon — Bryan and Roberts were convicted of manslaughter and sentenced to three years’ and 18 months’ imprisonment respectively.
• Crown Court at Norwich — Ben and Tom Cowles pleaded guilty to manslaughter and received concurrent sentences of seven years six months and seven years respectively.