No: 200700317/A3 
Neutral Citation Number: [2007] EWCA Crim 1139
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Thursday, 26th April 2007
 
B E F O R E:

LORD JUSTICE RIX 

MR JUSTICE RAMSEY 
 
SIR RICHARD CURTIS 

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R E G I N A 

-v- 

DAVID ALLAN KEITH NOBES
 
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MR N WOOD appeared on behalf of the APPELLANT
 
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J U D G M E N T 

1.	Mr Justice Ramsey: This is an appeal against sentence by leave of the single judge.
2.	On 26th October 2006, in the Crown Court at Kingston upon Thames, the appellant, David Allan Nobes, now aged 32, was convicted of manslaughter after a trial.  On 13th December 2006 he was sentenced by His Honour Judge Tilling to imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of 18 months less 82 days spent on remand.
3.	The facts are briefly these.  On 22nd December 2005 the appellant attended Kempton market with his partner and his cousin, Ricky Carman.  The deceased, a 30 year old man, Simon Wooton, was also at the market and he and Mr Carman exchanged words.  It appeared that there had been some history of dealing between the two men.  Mr Carman was seen to push the deceased and then a scuffle broke out between them.  The appellant intervened and punched the deceased to the jaw/neck area and also grappled with him.  The deceased slumped to his knees and then fell flat to the ground, banging his head as he did so.  
4.	The appellant and Mr Carman then walked away.  Witnesses saw what had happened and tried to help the deceased.  At least one of the witnesses called after the appellant, shouting that the deceased had been seriously hurt, but the appellant continued walking.  The deceased was unconscious and an off-duty nurse tried to help, but he did not regain consciousness and died at the scene.  A post-mortem revealed that the blow to the head had caused an artery to tear and blood to flood the brain.
5.	The ground of appeal relates to the imposition of a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003, it being submitted that such a sentence was manifestly excessive, or wrong in principle, and that a determinate sentence of three years should have been imposed as the appropriate sentence.  That period of three years is the period on which the judge based the minimum term for the imprisonment for public protection.
6.	In considering the provisions of dangerousness under sections 224 to 229 of the Criminal Justice Act 2003 there was here an assumption of dangerousness under section 229 because the appellant had a previous conviction in 2003 for a specified offence, a section 47 assault occasioning actual bodily harm, for which he received a community punishment order of 180 hours.  The court was therefore required to assume that there was a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further offences, unless, after taking account of the matters in section 229(3)(a) to (c) the court considered that it would be unreasonable to conclude that there was such a risk.
7.	In this case the sentencing judge expressed himself in these terms:
"I have, first of all, to make a difficult decision as to whether in this case I should pass a sentence of imprisonment for public protection.  The Act makes it clear that because you have been convicted of a specified offence in the past, I am bound to make the assumption that you represent a significant risk of serious harm unless it would be unreasonable to do so.  That previous conviction, I have to note for the record, was an incident that also involved your intervening in somebody else's argument, although Mr Wood points out a significant difference -- that alcohol was involved then but not on this occasion. 
I have come to the conclusion that there is nothing to persuade me that it would be unreasonable to make the assumption I have to make under the Act, and hence the sentence I pass upon you is a sentence of public protection."
8.	Mr Wood submits on behalf of Mr Nobes that this is a case where the judge should have taken the view that the assumption was rebutted given the factors to be taken into account under section 229(3)(a) to (c).  He submits that the previous offence arose out of an incident in a nightclub when the appellant was drunk and headbutted and punched a fellow customer in the face.  This was apparently when the appellant intervened in another dispute.  The current offence arose in a fight where the appellant was not the instigator and punched the deceased once with moderate force to the side of the neck.  On that basis Mr Wood submits that this does not demonstrate a pattern as required by section 229(3)(b).
9.	In relation to matters which are relevant to the court's consideration, Mr Wood refers to the decision of this court in Lang [2005] EWCA Crim 2864 and in particular at paragraph 17(ii) of the judgment of the court where Rose LJ said this:
"In assessing the risk of further offences being committed, the sentencer should take into account the nature and circumstances of the current offence; the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender's thinking, attitude towards offending and supervision and emotional state.  Information in relation to these matters will most readily, though not exclusively, come from antecedents and pre-sentence probation and medical reports."
10.	In this case it is submitted on behalf of Mr Nobes that the information about the offender supports the submission that it would be unreasonable to come to the conclusion that the appellant is dangerous.  In particular, it is said that he was in continual full-time employment and in a steady relationship with his fiancee of two and a half years with whom he was living and intended to marry on his release.  He was widowed seven years ago when his wife died of cancer and has a 13 year old daughter who lives with her grandmother.  He has now come to terms with an earlier drink problem.  He showed genuine remorse for what he had done when interviewed and charged and to the author of the pre-sentence report.  All those matters are established on the evidence before this court.
11.	In addition, the author of the pre-sentence report in this case said this:
"Mr Nobes' history of offending demonstrates a propensity to act on impulse and this is of concern to me.  Mr Nobes has one previous conviction for assault occasioning actual bodily harm which also suggests a propensity to use violence as a means of solving problems.  However, alcohol was a major contributor factor to this offence and the circumstances of the current offence are vastly different.  Mr Nobes does not have a long history of violent offending and he has demonstrated a high level of insight into the underlying cause of his offending. 
While I am concerned that Mr Nobes has used violence as an 'instinctive' form of problem solving it is my opinion that this propensity was previously linked with his abuse of alcohol.  Mr Nobes has made good progress in addressing his alcohol abuse and since attending and completing the 'Drink Impaired Drivers Course' and completing his community rehabilitation order he has committed no further offences of a similar nature.  It is my opinion that in view of the particular circumstances of the current offence, Mr Nobes does not present a significant risk of serious harm as defined by section 229."
12.	As has been said in Lang at paragraph 17(v), in relation to the assumption under section 229 of the 2003 Act, it will usually be unreasonable to conclude that the assumption applies unless information about the offences, pattern of behaviour and offender show a significant risk of serious harm from further offences.  It was also said at paragraph 17(ix) in Lang that sentencers should give reason for their conclusions, including the reasons for making or not making the assumption, which the statute requires, and should briefly identify the information which they have taken into account.  In this case the sentencing judge evidently concentrated on the previous offence and did not give reasons which dealt with the matters set out above, including the conclusion of the pre-sentence report.
13.	This court considers the relevant circumstances are as follows.  (1) The previous section 47 offence and the present conviction for manslaughter are two, albeit serious, separate incidents rather than a pattern of offending.  The facts of each are different, and, although there is a similarity of intervention, the first occurred in a nightclub while the appellant was drunk and the second was an intervention in a fight during the course of the day and drink was not involved.  (2) There was evidently serious harm caused in the second offence, which was, as the judge held, the unintended consequence of the appellant's actions.  Such serious harm does not, of course, determine a future risk, although it is clearly a relevant matter to take into consideration.  (3) The appellant's personal life, as we have indicated, has not been without its difficulties, but he is now in a stable relationship and has been in full-time employment.  The many letters written on his behalf show that the offending is confined to two isolated incidents rather than part of a lifestyle.  (4) The pre-sentence report, which assesses him as not meeting the criteria for dangerousness, is important, particularly because that is based on the progress he has made in relation to the previous community sentence. 
14.	In the circumstances of this case, where the court below gave no reasons and did not identify all the information before it, this court does not know the basis upon which the judge acted.  If the judge, as the cases have shown, properly identifies the provisions of the statute and the information and gives reasons, in such circumstances this court is slow to interfere with the judge's decision.  But where there are not sufficient reasons, and the information is not identified, this court has to consider the matter and whether the various circumstances it has outlined are sufficient to rebut the assumption of dangerousness.
15.	Balancing all the factors together, we consider that it is unreasonable to conclude in the appellant's case there is a significant risk to members of the public of serious harm occasioned by the commission by him of further offences.  In such circumstances, we consider that there are not proper grounds for concluding otherwise and that the imposition of a sentence of imprisonment for public protection was indeed manifestly excessive and wrong in principle on the particular facts of this case.
16.	Accordingly, this court quashes the sentence of imprisonment for public protection under section 225 of the 2003 Act and instead imposes a determinate sentence of three years with 82 days being allowed under section 240 of the 2003 Act.  To that extent and for those reasons this appeal is allowed.