Attorney General's Reference No. 90 OF 2005

Neutral Citation Number: [2006] EWCA Crim 270 IN THE COURT OF APPEAL CRIMINAL DIVISION No: 200504518/A6 Royal Courts of Justice Strand London, WC2 Thursday, 19th January 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE CRANE MRS JUSTICE RAFFERTY DBE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 90 OF 2005 (PAUL DALTON) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS Z JOHNSON appeared on behalf of the ATTORNEY GENERAL MR D FISHER QC appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. 2. 3. 4. 5. 6. 7. THE VICE PRESIDENT: The Solicitor-General for the Attorney-General makes an application, under section 36 of Criminal Justice Act 1988, to refer a sentence said to be unduly lenient. The offender is 35 years of age, having been born in June 1970. On 22nd July 2005 he was acquitted by the jury of the murder of his wife but convicted of her manslaughter. The jury, having been invited to do so, expressly indicated that the basis of their verdict was lack of intent, that is, an absence of an intent to cause death or serious harm. From the outset, the offender indicated his willingness to plead guilty to the second count of preventing lawful burial. He was not arraigned until the morning of the trial and, on that occasion, he pleaded guilty to manslaughter on count 1, which plea the prosecution did not accept, and guilty to count 2. Sentence was adjourned to 21st July in order that the Court could consider the relevant authorities. On that occasion, he was sentenced at the Central Criminal Court by Gross J, who had conducted the trial, to a total sentence of 5 years, consisting of 2 years' imprisonment for manslaughter and 3 years consecutively for preventing lawful burial. In summary, the offender and his wife, Tae Hui, had been married for a number of years and they had a 6 year old daughter to whom, it is common ground, the offender was devoted. On 22nd May 2004 they argued. She taunted him that he was not the natural father of the child. Thereupon the offender punched his wife in the jaw, breaking it in two places. He took his daughter, who had appeared at the doorway, upstairs and he remained with her upstairs for some 5 or 10 minutes. When he returned, his wife was, sadly, dead, having apparently choked on her own blood. The offender failed to call the police. A few days later he bought a deep freezer and a saw and proceeded to cut his wife's body into pieces. He then fled to Japan but returned a fortnight later and was arrested. In a little more detail, the parties had been married for about 7 years. They lived in Kingston, Surrey, and ran a language school for foreign students. They had quarrels from time to time. On 9th June 2004, that is to say after the death had occurred, the offender dropped his daughter off at his mother's house, saying he had a lot to do and that his wife, who was Korean, had gone to Korea. The offender did not come back, as his mother had expected, to collect her grandchild and so, on 11th June, the offender's parents went to the offender's house to check that all was well. There was no reply. They went in. In a deep freeze in the kitchen they found their late daughter-in-law's dismembered body. Postmortem examination revealed that the body had been cut up using a saw. The level of decomposition indicated that the body had been stored at room temperature for a number of days before it had gone in the freezer. There was bruising and a double commutated fracture of the jaw, indicating the blow which had been administered by the offender was a hefty punch. The consequence was that it had compromised the airway and inhalation of blood had caused death. The offender had gone to Japan leaving his daughter with his parents. He sent a number of text messages to his mother admitting that he had punched his wife and that she did not wake up. There were receipts found showing that the deep freezer had been bought on 26th May and the saw on 2nd June. On 21st June the offender returned to the United Kingdom and was arrested at Heathrow. 8. 9. In interview, he explained that his wife had been taunting him that he was not the child's natural father. He accepted that he had lashed out and punched his wife once on the jaw. He then described removing his daughter upstairs and then returning downstairs 5 or 10 minutes later to find his wife dead. He said that he had dismembered his wife's body in order to protect his daughter and to give himself time to think. The offender was a man of previous good character. On behalf of the Solicitor-General, Miss Johnson draws attention to three aggravating features, the first of which she, correctly, categorises as the most serious of the three: they are the failure to call for any medical assistance, the delivery of a blow of significant force and the fact that the violence took place within the matrimonial home. 10. Miss Johnson draws attention to the mitigation to be found in the pleas of guilty to manslaughter and to the prevention of lawful burial at the first available opportunity, the offender's previous good character, the fact that the offence was not premeditated, the fact that there was provocation, as we have described, and, of particular significance in cases where death results from domestic violence, that there had been no previous episodes of violence between the married couple. 11. There are a number of authorities referred to in the written reference. First is R v Coleman 13 Cr App R(S) 508, where an unusually strongly-experienced constitution of this Court presided over by the then Chief Justice, Lord Lane, reduced, from 2 years to 1 year, a sentence for manslaughter imposed for delivering a single blow and following a plea of guilty. Miss Johnson distinguishes Coleman on the basis that, in the present case, there was the delivery of a hefty blow which itself caused death, rather than, as in Coleman, the delivery of a blow which resulted in the banging of the victim's head which caused death. That is a distinction rightly drawn. Miss Johnson particularly relies on R v Tzambazles [1997] 1 Cr App R(S) 87, where, following trial, a sentence of 6 years was upheld, when a man, in the course of a fight with his wife, had struck her with a blunt instrument. In our judgment, the circumstances of that case were, in particular by reference to the use of the weapon, but for other reasons as well, very different from those of the present case. There is also, in the written reference, through Miss Johnson did not refer to it R v Henley [1999] 2 Cr App R(S) 412, where this Court reduced from 4 years to 18 months, the sentence imposed following a plea of guilty, for a single blow which broke the jaw of the victim. 12. Miss Johnson, in the written reference also refers, so far as count 2 is concerned, to R v Swindell (1981) Cr App R(S) 255, where a sentence of 5 years was reduced to 3 following a plea of guilty to preventing burial by dismembering a body, the defendant having been acquitted of manslaughter. 13. There are other authorities to which the sentencing judge was referred in the course of the proceedings before him. In R v Edwards [2001] 2 Cr App R(S) 540, a sentence of 2 years was reduced to 18 months, following a trial which resulted in a conviction of SMITH BERNAL WORDWAVE manslaughter resulting from a single punch. In R v Grad [2004] 2 Cr App R(S) 218, a sentence of 18 months was reduced to 9 months, following a trial: the circumstances of the offence there were that there was a single punch of moderate force. 14. The submission which is made by Miss Johnson, as attractively as the submission is capable of being made, is that the sentence passed by the learned judge failed to accord sufficient weight to the aggravating features present and, in consequence, the sentence was unduly lenient. 15. The sentencing judge who, as we have said, had conducted the trial, was referred by counsel on both sides to a number of relevant authorities, which he correctly analysed. He accurately and concisely in his sentencing remarks, rehearsed the circumstances of these offences and set out the aggravating and mitigating features. It may be that some judges would have passed a higher sentence for the manslaughter than for the offence of preventing burial. Whether that is so or not, the crucial question for this Court's determination is whether or not the total sentence of 5 years, was unduly lenient. In our judgment, it was not. On the contrary, it was, in total, an entirely appropriate sentence in its totality and arguably, in its constituent parts. 16. In the judgment of this Court, this is not an application, having regard to the discretion vested in trial judges with regard to sentencing, which should have been brought. This was not capable of being categorised as an unduly lenient sentence. Accordingly, we refuse leave to refer the case for review. SMITH BERNAL WORDWAVE