Neutral Citation Number: [2009] EWCA Crim 2322
No: 2009/4033/A4 & 2009/4035/A4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 27 October 2009
 
B e f o r e:

THE VICE PRESIDENT
(LORD JUSTICE HUGHES) 

MR JUSTICE MACKAY 

MR JUSTICE DAVIS 
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 64 & 65 OF 2009   
 
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Mr J Rees appeared on behalf of the Attorney General
Mr S Weidmann appeared on behalf of the Offender Thakali
Mr L Kench appeared on behalf of the Offender Gurung
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J U D G M E N T
1.	THE VICE PRESIDENT:  Her Majesty's Attorney General seeks leave to refer under section 36 of the Criminal Justice Act 1988 sentences of three years' custody upon two defendants following their convictions for manslaughter.  We give leave.  
2.	The case presents a dilemma of a form which the criminal courts must unavoidably, from time to time, confront.  A life has been quite needlessly lost.  It is a tragedy for the family of the deceased.  It has been the result of a sequence of events which reflect poorly on all sides.  The offence is not simply a little but miles out of character, so that persons who are otherwise wholly to be recommended have done something very dangerous with appalling consequences.  
3.	In April 2008 a number of young Nepalese people celebrated the start of the Nepalese New Year at a party on a boat moored on the Thames Embankment.  Among the many present were the two defendants and the deceased, Bishal Gurung.  The party went on until something like 4 o'clock in the morning and was at that time coming to an end.  It is plain that everybody had had a good deal to drink.  
4.	An argument broke out for which, it appears, the deceased bore responsibility.  He swore at and also pushed a young woman, who is the cousin of the defendant Thakali.  Thakali saw that she was being treated in this way and he intervened.  His intervention was verbal rather than physical and the whole thing should of course have stopped there.  
5.	The incident was greatly escalated when an associate of the deceased ran up, carrying a bottle in his hand, and struck the defendant Thakali on the head with it.  In due course he frankly gave evidence that he had hit him as hard as he possibly could.  The bottle had not been broken in advance of the blow but the force of the impact caused a large cut on Thakali's head.  It bled copiously and was seen to do so and, to anticipate, it was a wound that later needed eight stitches.  Thakali was undoubtedly left dazed at least in consequence.  
6.	At this, friends of Thakali pursued the deceased.  It looks as if they must have thought that it was he who had struck with the bottle, whereas it was not.  He was caught about 100 yards away, brought to the ground and struck by punches and some kicks.  There was no weapon.  He was not badly hurt but he was significantly dazed.  The judge described him as incapable of further retaliation and indeed near insensible.  
7.	The defendant Rocky Gurung (no relation to the deceased) was one of those who pursued and knocked down and beat the deceased.  Thakali, who had not been concerned in that part of the incident, then joined the group.  The evidence showed that dazed and drunk, as he by then plainly was, he suggested throwing the deceased into the river.  With the help of others, others who are mostly unknown but who included the second defendant Rocky Gurung, the deceased was bundled over the waist high embankment wall and allowed to fall into the river below.  Although plainly this was nobody's intention, the result of that plainly dangerous act was tragic.  He had been unresisting ‑ that is how it was possible to do it ‑ and he was unable to look after himself and he drowned.  It has probably taken significantly longer to describe those events than they took to happen.  The evidence of one of the witnesses was that it all seemed to be over in about a minute.  No doubt that is not a precise estimate, but it did all happen without doubt in a very short time.  
8.	The deceased was a young man.  He was the only son of his mother, who is a widow.  The quite devastating impact of his death on her is one which would be anticipated by any right‑thinking person who considered in the cold light of day what had happened and it was underlined by a moving statement which she was able to make for the benefit of the court.  That was one side of the consequences.  
9.	At the time the two defendants were respectively somewhat under 21 (Thakali) and just 20 (Rocky Gurung).  They are both the sons of families of impeccable character and responsibility.  Their fathers are both former Gurkha soldiers of the highest standards.  Until this night each defendant had conducted himself throughout his life in accordance with those high standards, as one would hope and expect.  Both were studying with a view to careers in accountancy ‑ Gurung, who had been in the United Kingdom longer, a little ahead of Thakali.  Both of them gave their time voluntarily to work for the local Gurkha Association.  Both were highly spoken of, by their families certainly, but also by independent people who knew them and by their colleges.  Neither of them had ever done anything criminal before.  
10.	The reports written on both defendants made it clear that as one would expect with young men of this character both were having difficulty coming to terms with the ghastliness of what they had done.  Both, however, fully accepted the responsibility which they shared.  Of one of them the probation officer said he was finding coping with what he had done almost unbearable.  Their remorse for having been the occasion of someone's death was described as genuine and profound.  In their community they were both acutely conscious that they had brought shame on their families and indeed that as a matter of honour it was their obligation to use their lives to make amends so far as they could for what they had done.  
11.	These two were convicted of manslaughter.  They had, however, faced a trial for murder, with all that that entailed.  They had had a year or more awaiting that trial and that, plus the trial itself, was and should have been part of their punishment, but is not to be ignored.  
12.	We do not think that this case is illuminated by any comparison with cases of single punches which result in unexpected fatal fractures to the skull as a result of the victim falling onto a pavement and we emphasise that neither Mr Rees for the Attorney nor the representatives of the defendants have here advanced that analogy.  Sentencing for cases of that kind in any event must cover a very large range of difficult circumstances.  It may be that the aggression in a punch normally carries an intention to cause harm of some sort, but here the nub of what was done was not an intention to cause harm but the obviously dangerous act of pushing the deceased, who was unresisting, into the water of a major river.  Nor do we find helpful analogy in the case to which we were cautiously taken, Attorney General's Reference Nos 27 and 28 of 2008 (Lewis and Walker) [2009] 1 Cr.App.R (S) 87 at 521, except that it involved manslaughter where the death occurred through drowning.  There are few close comparisons.  That had been a pre‑planned and pre‑threatened attack.  It involved planned revenge for some supposed slight.  It involve sustained violence described by the judge there as a long and terrifying ordeal.  It was a case in which the victim had been kept in deep and dangerous water when he was seen to be in trouble and panicking, and indeed was driven away from the shore with sticks when he tried to get out ‑ in other words he had been prevented from saving himself.  The defendants in that case had previous convictions for violence.  
13.	We do agree with the general proposition that the public is rightly concerned about drunken violence on the streets.  That, however, does not absolve the criminal courts of the delicate task of trying to find the right balance of retribution for the particular defendant and for the particular circumstances of very widely differing cases.  The Attorney characterises this offence as a revenge attack.  In one sense it bears some marks of that because the deceased had, it seemed, been the original occasion of the altercation and was believed to have been responsible also for the serious violence with the bottle.  It is certainly a significant aggravating feature of an offence if after a fight is over and there has been time for reflection a revenge or punishment expedition is mounted.  That, however, was not this case.  This case is probably better described as one of instant unjustified retaliation than revenge and of recklessness rather than intent to cause harm.  We also agree that it is an additional aggravating feature that no one went to the aid of the deceased.  It may be that it was assumed that he would be able to swim to safety, but the fact is that no one looked.  
14.	We agree that in many circumstances this kind of offence might call for a sentence significantly beyond the three years imposed by this judge.  If it did, it would not be a question of a vain attempt to put a value in terms of years of custody on a life because that is something which can never be achieved.  But assaults in drink creating an obviously high risk of danger, which in the end results in a quite needless death, may indeed merit punishment even more condign than a substantial sentence of three years.  
15.	In the present case the question becomes this.  Was the judge justified in mitigating the sentence by two features of the case which pointed towards mercy?  The first was that the defendants had not started the altercation and that one of them had been very seriously injured and the other had seen his friend very seriously injured.  The second feature was the very obvious positive good character of the defendants.  That can result properly in a significantly mitigated sentence.  It is not only because defendants who have always before behaved positively well can be treated more leniently than those who have a history of bad behaviour, though that is plainly true.  It is also because in some cases, and this appears to be one, defendants of this kind of previous history will feel much greater punishment brought upon them by their own actions than other people would.  
16.	We remind ourselves that the judge had heard the trial and had had a good opportunity to take the measure of the tragic events which he was dealing with.  He had heard a good deal of evidence about the night in question and indeed about the actions of others identified or unidentified.  It is clear that this was a lenient sentence in the sense that in other circumstances an offence of this kind could easily have called for one significantly longer.  We think that some judges might, looking at it on paper, have regarded it as calling for a sentence of something more like four or five years.  But the judge's task is to confront really difficult decisions such as this.  This judge was well aware of the factors pointing towards more severe punishment, as he was of those pointing towards mercy.  In some circumstances it is a permissible decision to take to pass a merciful sentence.  It is precisely to make such delicate assessments that the judge is there and listens to the whole of the case.  In this court, this court will interfere when he has passed not only a lenient sentence but one which is out of the possible range; one which involves, as has been said, gross error ‑ see, for example, Attorney General's Reference no 132 of 2007 (Johnson) [2003] 1 Cr.App.R (S) 41 and Attorney General's Reference No 8 of 2007 (Krivec) [2008] 1 Cr.App.R (S) 1, together with many other cases.  
17.	In the present case we have reached the conclusion that the judge's sentence was deliberately lenient and merciful in the exercise of a proper judicial function.  He was faced with a near impossible task and his assessment is not one which is outside the available range of proper decisions in recognition of the particular facts of the case before him.  
18.	For those reasons, although we have given leave to raise this appeal here, and it has rightly been argued, we decline to interfere with the sentences that he passed.  
19.	Mr Rees, there is one technical qualification to add.  Are we right in thinking, or more accurately are those behind and above us in the office right in seeing, that in the case of Thakali he was still under 21 at the time of conviction?  
20.	MR REES:  My Lord, I think not.  May I just check that?  
21.	THE VICE PRESIDENT:  There does seem to be confusion about dates.  
22.	MR REES:  He was born on 7th July 1988, so he was just under 21 when he was convicted, but over 21 when he was sentenced. 
23.	THE VICE PRESIDENT:  It is conviction.  In which event, the right sentence, although it makes absolutely no difference, is detention in a young offender institution.  
24.	MR REES:  Thank you very much. 
25.	THE VICE PRESIDENT:  Does anybody else want to say anything about that purely technical issue?  
26.	MR WEIDMANN:  No, my Lord.  
27.	THE VICE PRESIDENT:  We need to correct that.  Technically I think that means we need to give leave to appeal against sentence and allow the appeal to that extent.  But it is, as we should make clear to anybody who is interested, a matter of nomenclature rather than of substance.  It makes no difference to the sentence which he will serve and which he will carry with him no doubt for some time. The same does not apply to Gurung, is that right?
28.	MR REES:  No.  He was 21. 
29.	THE VICE PRESIDENT:  He was that little bit older.