Daley, R v

Neutral Citation Number: [2008] EWCA Crim 679 IN THE COURT OF APPEAL CRIMINAL DIVISION No. 2007/05237/A4 Royal Courts of Justice The Strand London WC2A 2LL Friday 29 February 2008 B e f o r e: LORD JUSTICE DYSON MR JUSTICE MADDISON and SIR RICHARD CURTIS - - - - - - - - - - - - - - - R E G I N A - v - COURTNEY DALEY - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr C Salon QC and Mr J Mann appeared on behalf of the Applicant Miss B Cheema appeared on behalf of the Crown - - - - - - - - - - - - - - - Judgment Friday 29 February 2008 LORD JUSTICE DYSON: I will ask Mr Justice Maddison to give the judgment of the court. MR JUSTICE MADDISON: 1. On 26 July 2007, in the Central Criminal Court, the applicant, Courtney Daley, was convicted of manslaughter by way of provocation as an alternative to the single count of murder with which he was indicted. On 23 August he was sentenced by His Honour Judge Van Der Werff to nine years' detention in a young offender institution. He renews his application for leave to appeal against sentence following refusal by the single judge. 2. The relevant circumstances were that the victim, who was 18 at the time of his death, had first had contact with the applicant, who was 17 at the time of the offence, in November 2005 at the College of North East London, where both had been involved in violent clashes between their opposing groups of friends. 3. At just after midnight on 9 January 2007 the victim was speaking to his girlfriend on the telephone. He was walking home from an evening out with friends. He was a few houses away from his own address in Broadwater Road, Tottenham. He cut the call short because the applicant had caught his attention and it appeared had called out to him. A neighbour saw them facing each other but was not able to see exactly what happened next. Accordingly, there was no independent evidence as to the circumstances in which the violent incident between the two young men began. However, there was clear evidence that shortly after that incident the victim staggered home and collapsed outside. He had been fatally stabbed to the chest by the applicant. The applicant was chased by the victim's father and caught by police officers who were in the vicinity. The applicant had discarded a lock-knife which was found in a nearby garden. 4. The victim was treated at the scene and taken to the North Middlesex Hospital. He died at 1am. He had sustained several stab wounds, some superficial, but including two principal wounds to the chest, one of which had been inflicted with sufficient force to cut a rib and to penetrate his heart. The jury's verdict was on the basis that there was present the mental element sufficient for the crime of murder, but provocation of a degree sufficient to reduce that crime to one of manslaughter. 5. In interview the applicant declined to answer any questions, but provided a prepared statement. He said that he had been walking along Broadwater Road and had seen the victim of his offence walking in front of him. The victim had turned around and confronted the applicant and then head-butted the applicant to the nose, before grabbing hold of him and attempting to punch him. At that point the applicant had taken out the knife that he carried for defensive purposes and had swung at the victim in order to dissuade him from pursuing the assault. The applicant said that he did not intend to kill or to cause grievous bodily harm. That was plainly rejected by the jury. At the trial, as we understand it, the defences of provocation and self- defence were put before the jury. 6. The applicant at the date of his conviction was 18. He was of previous good character. The judge had a pre-sentence report which stated that the applicant's approach was still to place much of the blame on the deceased. Although the applicant attempted to express remorse, the author of the report considered that that remorse and regret had more to do with the fact that the applicant was in custody than anything else. He was assessed as posing a low risk of re- offending generally, though somewhat confusingly the pre-sentence report later stated both that the applicant did not pose an imminent risk of significant harm and that he did pose a high risk of harm to the public. 7. The judge also had before him a victim impact statement from the deceased's mother which we have read. It spoke movingly about the loss which she and the entire family had suffered and about the grief which inevitably accompanied that loss. 8. In passing sentence the learned judge accepted that the deceased had head-butted the applicant. There was medical evidence to support that contention. There was also scientific evidence to support the contention that the deceased had taken hold of the applicant's clothing. We accept that in both of those regards what the applicant had said in his prepared statement was borne out. The judge commented, as was certainly the case, that the jury was sure that at the time of the stabbing the applicant intended at the least to cause the deceased really serious injury, but recognised that as a result of the provocation the verdict had been one of guilty of manslaughter. The jury rejected self-defence. The judge adverted to the fact that there had been several stabs and to the fact that the deceased had been unarmed. The judge also had in mind that the deceased was a much bigger man than the applicant, though both were of a similar age. 9. In considering the principles that should govern his sentence, the judge said that there could be nothing other than a lengthy term of detention in a young offender institution. He referred to the fact that ten years ago the Court of Appeal had said that, where an offender deliberately goes out with a knife, carries it as a weapon and uses it to cause death, even if there is provocation, he should expect to receive on conviction in a contested case a sentence in the region of ten to twelve years. That was a reference to one of the authorities drawn to our attention, that of Attorney General's Reference No 33 of 1996 (R v Latham) [1997] 2 Cr App R(S) 10. The judge went on to state that even the most recent guidelines did not materially depart from that principle. That was a reference to the recently published guideline by the Sentencing Guidelines Council in relation to manslaughter by reason of provocation. However, said the judge, life had changed a good deal in the last ten years. He referred to the widespread public concern relating to the carrying of knives by young people. Having considered all the points in mitigation and the points referred to in the pre-sentence report, the judge concluded that, although an indeterminate sentence was inappropriate having regard to the applicant's good character, a lengthy term of detention was inevitable and that the right term was one of nine years. 10. In support of this application several proposed grounds are put before us. We have considered them. We regard them as properly arguable and we grant leave to appeal. We have taken into account all of the matters raised in the written material placed before us both by way of written advice and grounds of appeal and by way of a recently submitted skeleton argument. 11. The central points made are that the sentence passed insufficiently allowed for the appellant's age and good character. Secondly, it is submitted that in a case in which the verdict was based on provocation, deterrence should have played less of a part in the sentencing process than it appears to have done. Thirdly, it is submitted that the sentence insufficiently recognised the principles set out by this court in R v Suratan and Others [2002] EWCA Crim 2982, both as SMITH BERNAL WORDWAVE to the reduced importance of deterrence when sentencing in a provocation case, and as to the importance of recognising the elements of a successful defence of provocation. It is further submitted that, having regard to a variety of authorities which have been placed before us, the judge adopted a wrong starting point. We have taken account of all of the authorities cited, though all to some degree turn on their own facts and most arose before the publication by the Sentencing Guidelines Council of the guideline to which we have referred. 12. We turn to consider that guideline. Where there is a low degree of provocation, the Sentencing Guidelines Council suggests in relation to an adult a sentencing range of between ten years and life in custody, with a starting point of twelve years. Where there has been a substantial degree of provocation, the suggested sentencing range is one of four to nine years, with a starting point of eight years again in the case of an adult. Where there is a high degree of provocation, the starting point is one of three years. The sentencing range (if custody is necessary) is one of up to four years. 13. We have considered into which of these brackets this case properly falls. We conclude that it falls into the bracket involving a substantial degree of provocation. It seems to us that that is the only reasonable conclusion, having regard to the fact that there was no independent evidence as to how the incident started, and that there was scientific evidence to support the proposition that the deceased (on any fair view the larger man) had head-butted and grabbed hold of the appellant. Accordingly, we look at a sentencing range of four to nine years, with a starting point of eight years' custody in respect of an adult offender. 14. However, there are two qualifications that we think it right to place upon the application of the guideline in this case. The first is that the Sentencing Guidelines Council purports to be doing no more than to be issuing guidelines; it is not setting fixed or rigid boundaries. Secondly, although we have taken into account the youth of the appellant and all the points made by Mr Salon QC on his behalf, we also have in mind that it is young men of this sort of age who are very frequently carrying the knives about which there is such heightened, and in our view justifiable, public concern. 15. We do accept, having regard to the guideline, the youth and good character of the appellant and all of the points made on his behalf, that the sentence of nine years' detention in a young offender institution was too high. But in our judgment it would be wrong, particularly in the light of the public concern to which we have just referred, to substitute a sentence lower than one of eight years' detention in a young offender institution. To that limited extent this appeal is allowed. 16. MR SALON: My Lord, thank you very much. There is an application for a representation order. 17. LORD JUSTICE DYSON: Yes, you may have that -- limited to one counsel. It is very nice to see you Mr Salon, but it must be for one junior counsel. Thank you. SMITH BERNAL WORDWAVE