Hobbs and DM [2018] EWCA Crim 1003; [2018] 2 Cr.App.R.(S.) 36, CA.

R v Hobbs and DM [2018] EWCA Crim 1003 concerned appeals against sentence for manslaughter by two young offenders, heard by a constitution presided over by the Lord Chief Justice, who delivered the court’s judgment.

The appellants, Keani Hobbs (aged 17 years and four months at the time of the offence) and DM (aged 15 years and two weeks at the time of the offence), had been convicted following trial in the Crown Court at Chelmsford before Her Honour Judge Lynch QC of the manslaughter of Vilson Meshi and theft. Hobbs had been sentenced to nine years’ detention in a young offenders’ institution for manslaughter, with 12 months’ detention concurrent for the theft. DM was sentenced to six years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for manslaughter, and 12 months’ detention concurrent for theft. Both appealed against sentence with leave. Hobbs also renewed an application for leave to appeal against conviction, which the Court of Appeal refused.

The victim, Mr Meshi, had driven from Derbyshire to Basildon in the late afternoon of 26 February 2016 to be able to look after his two young children the following morning. He slept in his car, which was parked outside his former partner’s home, having created a makeshift bed by putting down the back seats. In the early hours of 27 February 2016, at about 02:00, a lit marine distress flare was thrown into the vehicle. The toxic fumes from the flare killed him.

The flare was one of six recently stolen from a boat moored at Pitsea Marina. CCTV footage showed DM, a hooded figure on a bicycle, trying car doors in the area. He came across Mr Meshi’s car with one door unlocked, saw an iPhone and car keys, and took them. DM had been at the marina with Hobbs and a third young person. Hobbs had the flares and was eager to throw one into a car to see what would happen. She tried to persuade both DM and the other person to do so, but they refused. Nevertheless, DM returned with her to the car. The door was opened and the flare was thrown in by Hobbs. The appellants also traded the iPhone and car keys for cannabis.

The prosecution case on both the theft and the manslaughter was one of joint enterprise. The judge sentenced on the basis that the appellants were equally culpable and that the whole reckless enterprise was carried out on the basis that it would be fun to throw a lighted flare into a vehicle where a man was asleep. The judge stated that neither appellant realised that the man was going to die but they must have realised it would cause him some harm.

The sole ground of appeal against conviction pursued by Hobbs concerned rulings made by the judge in relation to the bad character of DM. Hobbs’ case was that she was not present at either the marina or the car, whilst DM accepted being at the marina but denied involvement in either the theft or the subsequent use of a flare. The judge allowed limited bad character evidence relating to DM to go before the jury, comprising cautions for burglary and theft and a conviction for theft from a car. Mr Badenoch QC, for Hobbs, sought to introduce further bad character evidence, including the fact that DM had been arrested for and was awaiting trial on conspiracy to commit robbery, possession of Class A drugs, and photographs showing him equipped for moped robberies with a knife. The judge ruled that these matters did not satisfy the test under section 101(1)(e) of the Criminal Justice Act 2003 for admitting bad character evidence on the application of a co-accused, namely that the evidence has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. The Lord Chief Justice emphasised that this was a decision well within the trial judge’s discretion and that there was no basis to interfere. The allegations relating to the conspiracy were untested and unproven, and any probative value would have required the jury to be sure of DM’s guilt, necessitating a satellite trial. The court further noted that the case against Hobbs was very strong, involving direct evidence that she had offered to sell the stolen items, direct evidence from the third person about her actions, covert recordings of family members describing what both appellants had done that night, DM’s evidence explaining Hobbs’ role, Hobbs’ disposal of a SIM card the next day, and the fact that she chose not to give evidence. The conviction was plainly safe.

On sentence, the grounds of appeal on behalf of Hobbs contended that the judge had stated she was considering “the relevant adult Guidelines” when there were no definitive Sentencing Council Guidelines for manslaughter, that the judge erred in sentencing her as an adult and failed to have regard to her personal background, and that the judge failed properly to adjust sentences to reflect their closeness of age and differences in criminal history. Mr Badenoch QC submitted that the judge failed to take account of Hobbs’ age at the time of the offence and the continuing applicability of the Sentencing Council Guideline for Children and Young People. A pre-appeal report from the Prison Service described Hobbs’ conduct since sentence as mixed, noted no established pattern of violence, and assessed the risk of serious harm to others as medium. Mr Badenoch described the act of throwing the flare as the single immature and stupid act of a 17-year-old.

On behalf of DM, Mr Sherrard QC submitted that the starting point for Hobbs may have been manifestly excessive given her age at the time of the offence, and that the reduction of one-third as between the two appellants was insufficient. He relied on a psychological report which identified DM’s IQ as 74, assessed him as mentally vulnerable with significant deficits in cognitive functioning, verbal comprehension and reasoning, and described him as having significant developmental problems and delay. The report noted that DM’s reasoning skills were poor. It was submitted that his culpability and underlying criminality must be significantly less than that of an adult without such problems, particularly in a case where the judge had found the motive was for “fun” rather than pure recklessness. The case was described as a prank which went horribly wrong. A report from Lambeth Youth Offending Service indicated that DM had been serving his sentence at a secure training centre suitable to his learning needs, had attained the highest level of behaviour, re-engaged with learning, and was demonstrating understanding of the impact of his offending.

The Lord Chief Justice reviewed the sentencing principles applicable to children and young people set out in the Sentencing Council Guideline, including that the principal aim of the youth justice system is to prevent offending and that the welfare of the child must be considered, that the approach should be individualistic and focused on the child rather than the offence with rehabilitation as the primary purpose, that factors diminishing culpability must be considered including that children are not fully developed or mature, which can impact on decision-making and risk-taking behaviour, and that emotional and developmental age is of at least equal importance to chronological age. The Guideline indicates that for those aged 15 to 17, a sentence broadly within the region of half to two-thirds of the appropriate adult sentence may be appropriate, with greater reduction for those under 15, though this is only a rough guide and not to be applied mechanistically.

The court noted that there is no definitive guideline for manslaughter, a notoriously difficult crime to sentence because it covers a wide range of conduct. Harm, in the form of death, is always very high, but culpability can range from conduct just short of murder to conduct which in colloquial terms might be described as accidental. The Lord Chief Justice referred to Attorney General’s Reference No 60 of 2009 (Appleby) [2009] EWCA Crim 2693, in which the then Lord Chief Justice said that crimes resulting in death should be treated more seriously, so as to ensure that the fact a victim has died in consequence of an unlawful act of violence is given greater weight. The court also referred to Attorney General’s Reference No 16 of 2014 [2014] EWCA Crim 956, which made clear that whilst there must be a focus on the actions and intentions of the accused, there should also be a focus on the catastrophic consequences, namely the death of the victim. That case reviewed a number of decisions applying Appleby, primarily concerning death resulting from a single blow with a fist, in which sentences tended to be within the range of six to eight years’ imprisonment for an adult after trial.

The court reviewed recent authorities concerning manslaughter sentences for young people. In R v JF and NE [2015] EWCA Crim 35, appellants aged 14½ and 16 set fire to a duvet in a derelict building, unaware of a homeless man’s presence; toxic fumes from burning tyres killed him. The Court of Appeal reduced sentences of three years’ detention to 24 month detention and training orders in light of the particular circumstances and progress made. In R v Hayes [2015] EWCA Crim 199, a one-punch case involving a 17-year-old, a sentence of four and a half years in a young offenders’ institution was reduced to three years and nine months. In R v E [2011] EWCA Crim 2744, a 13-year-old who armed himself with a knife for protection and killed someone whilst attempting to intervene had his sentence of six years’ detention reduced to four years.

The Lord Chief Justice emphasised the modern approach to sentencing those aged under 18 for manslaughter, consistent with the Guideline, namely the need to look carefully at the age, maturity and progress of the young offender in each case. He referred to R v Clarke [2018] EWCA Crim 185, in which he had observed that reaching 18 does not present a cliff edge for sentencing purposes, that full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays, and that youth and maturity remain relevant factors even after the 18th birthday.

The court concluded that in sentencing Hobbs the judge appeared to have had little, if any, regard to the fact that she was only 17 at the time of the offending. The judge’s finding that the whole reckless enterprise was carried out “for fun” was an important one which should have led to careful consideration of the maturity of the 17-year-old who committed the single act. The Guideline expressly refers to the need to take account of factors which could diminish culpability, including immaturity, the impact on decision-making, and lack of insight into the consequences of offending on victims. To describe Hobbs simply as “an adult” gave the impression that the judge approached the sentence as if there were a sentencing cliff-edge at 18. The sentence passed did not reflect the age, immaturity and resultant culpability of Hobbs at the date of the offence.

Furthermore, in this very unusual case the court considered it necessary to look carefully at the nature of any harm that the appellants should be taken to have foreseen, in the context of what was prosecuted as, and accepted by the judge to be, a prank which gave rise to dreadful and tragic consequences. The appellants expected to wake the sleeping occupant and watch his reaction as he sought to get out of the vehicle as quickly as possible. They would not have known that marine flares burn at a much higher temperature than ordinary fireworks, with exceptional intensity, and that the chemicals are especially toxic. They must have appreciated that Mr Meshi would cough and splutter, and a moment’s thought would have led anyone to conclude that some injury might be suffered from inhaling smoke and fumes and that he might hurt himself scrambling from the car. But in terms of culpability the circumstances fell at a relatively low level. The court considered that a sentence of nine years on the facts, even for an adult, would have been too high. Taking into account both the youth and immaturity of Hobbs and the underlying culpability for the act in question, the appropriate sentence for her for manslaughter should have been five years’ detention in a young offenders’ institution.

For DM, who was only just 15 when he committed the offences, having regard to the Guideline, the psychological evidence, the post-sentence evidence and the matters relating to culpability, the court concluded that the appropriate sentence was three and a half years’ detention.

The court also noted an error in the concurrent sentence imposed on DM for the theft. In respect of that count, the only sentence available was a detention and training order. Relying on R v Mills [1998] 2 Cr App R (S) 128, where an offender is sentenced to detention under section 91 of the 2000 Act no separate penalty should be imposed on an offence to which that provision does not apply. The concurrent theft sentence was quashed. Since custodial terms were reduced, the court was obliged by statute to impose the appropriate victim surcharge orders, which had been overlooked in the Crown Court.

In short, sentences of nine years and six years’ detention for manslaughter committed when the offenders were 17 and 15 respectively were reduced to five years and three and a half years, reflecting their youth, immaturity, the relatively low culpability arising from a prank which went tragically wrong, and the principles governing the sentencing of children and young people.

Peters & Ors [2005] EWCA Crim 605
Appleby [2009] EWCA Crim 2693
E [2011] EWCA Crim 2744
Duckworth [2012] EWCA Crim 1712
Attorney General’s ref: 16 of 2014, R v Gill (Lewis Anthony) [2014] EWCA Crim 956
Budi [2015] EWCA Crim 35
Clarke and Others [2018] EWCA Crim 185; [2018] 1 Cr. App. R. (S) 52

Naa’imur Zakariyah Rahman, Unreported 31 August 2018
Hashi [2019] EWCA Crim 185
Geoghegan [2019] EWCA Crim 787
Aaron Miller & others, Sentencing Remarks 21 May 2019
Ford & Lawrenson [2019] EWCA Crim 1757
Attorney General v Gordon [2020] EWCA Crim 360, [2020] Cr App R (S) 35
Green (Jaiden) [2020] EWCA Crim 1709
Mboma [2024] EWCA Crim 110