No: 200700730/A5 
Neutral Citation Number: [2007] EWCA Crim 1141
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Wednesday, 2nd May 2007
 
B E F O R E:

LORD JUSTICE RIX 

MR JUSTICE RAMSEY 
 
HIS HONOUR JUDGE STEWART QC
(Sitting as a Judge of the Court of Appeal Criminal Division) 

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R E G I N A 

-v- 

PAUL WHITE 
 
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MISS K LUMBERS appeared on behalf of the APPELLANT

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J U D G M E N T 

1.	Lord Justice Rix: On 12th December 2006, in the Crown Court at Luton before Penry-Davey J and a jury, the appellant, Paul White, was convicted of manslaughter and on 12th January 2007 was sentenced to imprisonment for public protection with a period of four years, less the 358 days spent on remand, being specified under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.  He was originally indicted for murder but the jury convicted him of the lesser offence on the ground, as was subsequently agreed between the Crown and the defence for the purpose of sentencing, of the lack of the necessary intent to cause at least really serious harm.
2.	He now appeals again sentence by leave of the single judge.
3.	 The facts out of which this conviction arose were that on the evening of 15th January 2006 the appellant and his friend, and ultimately co-accused, Mr Douglas, were drinking in a public house in Bedford with their partners.  During the course of the evening they were approached by the deceased, Mr Cox, who was a friend of Mr Douglas and also knew the appellant.  Mr Cox had a drink problem.
4.	Around 9.30 in the evening there was a disturbance between the three men during the course of which two glasses were broken.  Mr Cox was immediately ejected from the premises and the landlord watched him walk up the street for about 500 yards before he asked the appellant and Mr Douglas to leave which they did.
5.	There was subsequent conversation between the victim, Mr Cox, and Mr Douglas on their mobile phones before the three men met again in the street.  Mr Douglas and this appellant mocked and taunted Mr Cox before he was hit over the head with a bottle of wine which smashed.  Mr Cox produced a knife.  The appellant disarmed him of that knife and stabbed him with it to the back of his upper thigh, where the weapon, unfortunately, cut partially through the femoral artery.  The appellant and Mr Douglas ran away.
6.	Mr Cox, who was very significantly inebriated with 400 milligrammes of alcohol per 100 millilitres of blood in him, was, in that condition, unable to seek medical assistance.   The evidence was that with such assistance he would probably have survived.  As it was, he was not found for another 30 minutes.  The emergency services were summoned, but he could not be saved and was declared dead some two hours later.    The pathologist concluded that he died in part as a result of the stab wound to his leg, but also because of the lack of timely medical treatment.
7.	This appellant and Mr Douglas stood trial for murder.  Their essential defence was self-defence.  On that defence Mr Douglas succeeded and was acquitted.  This appellant was, as we have said, convicted of the lesser charge of manslaughter.
8.	The appellant was born on 30th September 1965 and was 41 at the time of the trial.  He had previous convictions which include three specified offences.  The most recent of them was a conviction for wounding for which he was sentenced to eight months' imprisonment on 11th June 2001.  He had also been sentenced for an offence of affray to two months' imprisonment on 13th June 1996.  That offence involved drink, as did the present offence of manslaughter, but the offence of wounding did not.
9.	The circumstances of the wounding offence also involved Mr Douglas as well as this appellant.  The victim had apparently glassed Mr Douglas and the latter wanted revenge.  The wounding was done with a piece of wood.  No knife was involved.
10.	A pre-sentence report stated that there was a relatively high risk of the appellant re-offending and that in such re-offending he posed a significant risk of serious harm to the public.  His failure to address his offending behaviour and misuse of alcohol, combined with his poor consequential thinking skills and limited victim awareness, all contributed to that risk.  He, however, expressed remorse for his actions. 
11.	There were before the court ten character references.  It is clear from them and, indeed, from aspects of the pre-sentence report, that, save on the occasions when the appellant has offended in the past, he is a hard working family man who has considerable support for his character in his community and from his employers and who has always remained in employment.
12.	The judge observed in sentencing that the appellant was not an evil man when he had no drink inside him, but that when he did have a lot to drink he turned into a different being.  He referred to the previous offences, in particular those of 1996 and 2001, and agreed with the writer of the pre-sentence report that there was an escalating level of violence to be found in those offences and that the appellant did, indeed, constitute a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.  He also observed, however, on the basis of material to which we have referred, that for substantial parts of his life the appellant showed himself to be both responsible and hard working, albeit he was prone to become violent when drunk and was unable or unwilling to control that.   
13.	In those circumstances, albeit without referring, as he may well have done, to the assumption that he was required to make under section 229(3) of the Criminal Justice Act 2003, the judge sentenced the appellant to imprisonment for public protection with a minimum term of four years, less time on remand, based upon a determinate sentence, which otherwise he would have imposed, of eight years.
14.	In today's appeal Miss Lumbers submits that the judge was in error both in imposing imprisonment for public protection and in the excessive length of the term specified.
15.	So far as imprisonment for public protection, we consider that there is cogency in Miss Lumbers' submissions.  The appellant was sentenced upon the basis of an absence of intent to commit serious harm.  He had never in fact committed serious harm in the past.  It was a single blow, with a knife that is true, but not with a knife which he had brought to the encounter.  He had taken it off the deceased who had brought it out.
16.	The pre-sentence report makes mention of the fact that the very serious consequences of this offence had for the first time brought the appellant face to face with the potential consequences of his drinking and he had resolved to put his drinking behind him.
17.	In these circumstances, taking account, as we have to do on this appeal, even though the judge did not do so, of the statutory assumption under section 229(3), we conclude that it would be unreasonable to conclude that there is a significant risk to the public of serious harm from the commission by the appellant of further specified offences.  The offences in the appellant's background are widely spaced.  This is the first occasion of serious harm, but it was not intended.  The appellant is for the most part a committed family man, and a hard-working employee.  Those who know him speak well of him.  He has been shocked by the consequences of this offence into forswearing drink.  He will have time to reinforce that ambition.  We consider that an appropriate determinate sentence in prison, set against the background of this offence and the consequences which it has brought home to the appellant, whom the judge and the writer of the pre-sentence report recognised was properly remorseful, is likely to be sufficient to protect the public from the risk, such as it exists, of a further relapse.  We do not consider that risk to be significant in terms of the statutory test of dangerousness.  
18.	We therefore turn to consider the question of the determinate sentence to which we would have sentenced this appellant.  Miss Lumbers has put in front of us the case of R v Bowen (1992) 13 Cr App R(S) 89, where, on a conviction for manslaughter by use of a knife without intent to cause serious harm, the appellant was sentenced to five years.  The sentence was upheld.  The facts there, both aggravating and mitigating, were very different.  We are not assisted by that case.  She also put in front of us the case of R v Knight [1996] 2 Cr App R(S) 384, where, on a plea to manslaughter arising out of the use of a knife in a fight between friends which had started with a joke and led to disastrous consequences, a sentence of eight years was reduced to five.  That, however, was on a plea.   
19.	In this case the matter was fought without even an offer to plead to manslaughter, as we have investigated with the help of Miss Lumbers.  We think that a determinate sentence of eight years could not be said to be manifestly excessive.  There is the aggravating feature that if the appellant and Mr Douglas had not left the scene, but had given assistance to Mr Cox, to whom, after all, they had not intended to cause serious harm, his life would probably have been saved.
20.	For these reasons, therefore, we allow this appeal to the extent of quashing the sentence of imprisonment for public protection and in its place we impose a determinate sentence of eight years.  For the purposes of that sentence the 358 days spent on remand should be taken into account.