Attorney General's Reference No 10 of 2004 [2004] EWCA Crim 1530

Case No 04/807/A2[2004] EWCA Crim 1530
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 29 April 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE KAY
MR JUSTICE RODERICK EVANS
MR JUSTICE PITCHERS
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 10 OF 2004
SIMON WALKER TEESDALE
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MR S DENISON appeared on behalf of the ATTORNEY GENERAL
MR RP JOHNSON appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE KAY:

[1]Her Majesty's Attorney General seeks the leave of the court to refer to it a sentence which he considers to be unduly lenient pursuant to section 36 of the Criminal Justice Act 1988. We grant leave.[2]The offender is aged 33. On 1st December 2003 he pleaded guilty to an offence of causing death by dangerous driving. On 9th January 2004 he was sentenced by His Honour Judge King, sitting at the Reading Crown Court, to eighteen months' imprisonment and he was disqualified from holding a driving licence for four years.[3]In summary, the offender is a diabetic who drove after having taken drugs which, whilst not necessarily affecting his ability to drive a vehicle, may have affected his ability to manage his diabetes at a time when he knew that his daily insulin requirement was unstable. He was driving his new car for the first time. He had no driving licence and he was not insured. He had his 10-week-old child in the front passenger seat. He suffered hypoglycaemia and collided with a pedestrian, causing the death of that unfortunate person.[4]In more detail the facts were these. The deceased was a 16-year-old. The offender has been an insulin-dependent diabetic since he was 8 years old. In early March 2003 he had suffered an infection to his arm which required surgery and was treated with antibiotics. That was having an effect on his insulin requirement at the time of the incident. The offender has also been addicted to heroin since May 2002 and he had voluntarily attended a course for his addiction. He has not held a driving licence since January 1998. A few days before this incident he bought a Toyota Hilux 4x4 vehicle, but he did not obtain insurance in order to drive it.[5]On 20th March 2003 he left his home in Langley, Slough, at about 9 am. He drove his new car with his 10-week-old daughter in a baby seat in the front passenger seat. He had told his wife that he was going to see his mother. He phoned her at 9.30 am to say that his mother was not home and that he would see her later.[6]His movements until about 12.15 pm are not known. At about 12.15 pm he visited Mothercare at a retail park on the A4 near Slough. He left at 12.35 pm. Shortly thereafter he was driving on the dual carriageway which is a part of the A4. He stopped at a traffic light at a roundabout. When the light turned to green his car did not move. It rolled a few feet forward on to the junction, then stopped again and the light turned back to red. The car was blocking the junction. When the light again turned to green the offender's car shot forward, almost hitting the back of the vehicle in front. It then swerved across the two lanes of a dual carriageway, bouncing off the kerb and the central reservation. As it approached Langley Road on its left, it almost passed the junction, before swerving round into Langley Road. The driver of the vehicle behind was sufficiently concerned at the offender's driving to divert from his own route and follow the offender.[7]Langley Road is a two carriageway road with a 30 mph speed limit. The unfortunate Usman Akhtar was walking on the pavement in the same direction as the offender on the offender's nearside. As the car proceeded down Langley Road at about 35 to 40 mph it swerved out into the path of the on-coming traffic, then back into its own lane. It then mounted the pavement and struck Mr Akhtar and a low wall to the left of the pavement. There was no sign of the offender having applied the brakes.[8]Mr Akhtar was propelled beyond the wall into a hedge. He suffered severe head injuries and died on 26th March 2003. The offender's car did not stop, but continued along Langley Road in the same manner. As it approached Langley High Street it swerved into the path of an on-coming vehicle, then back again and mounted the pavement. It hit a brick wall and a signpost, badly damaging the front of the vehicle. The offender reversed it off the signpost and back into the road, and then continued on into Langley High Street. It then turned left into Common Road. The front nearside wheel was by then at an angle and making a screeching noise as it drove. The car broke down in Common Road and stopped, with smoke and steam coming out of the bonnet. The offender remained in the driver's seat for a few minutes, leaning over to the baby seat in the front passenger seat. He then went round to the passenger door and leant in towards the baby seat. He was unable to unbuckle the seat belt. His behaviour seemed strange to passers-by who saw him, and he then slumped against the car. When the police arrived he collapsed to the ground. There was a small amount of frothy saliva on his lips and his eyes were staring and fixed. His blood sugar level was found to be very low. He was treated at the scene and was then taken to hospital, where the level was found still to be very low. After further treatment there he was discharged into police custody.[9]When he was seen by a doctor at Amersham Police Station that evening. He said that he was on antibiotics for an infection to his right upper arm which affected his diabetic control. He admitted using opiates but had only taken dihydrocodeine that day. He said that he had not taken any heroin for two days, but he had smoked cannabis in the previous 24 hours. Although his memory of the incident was poor, he did remember driving to his doctor's surgery in the morning to seek help with his diabetic control as he knew he was not well.[10]A sample of his blood taken that day was found to contain amphetamine at the level of 0.11 micrograms per millilitre of blood, and diazempam and its major breakdown product, desmethyldiazepam, at concentrations of 0.14 and 0.13 micrograms per millilitre of blood respectively. The effect of these drugs can be incompatible with driving.[11]In interview on 21st March 2003 the offender said that the only thing he remembered of the previous day was being in Mothercare in the morning and drinking a bottle of Lucozade and knowing that he had to get to his doctor's surgery. He said that he had been intending to get insurance for the car that morning. That day was the first time he had driven the car. He said that he had held a full driving licence since he was aged 17 and had never had it taken away. He claimed to be unaware that his licence had expired in 1998. He said that the accident happened because he had suffered a hypoglycaemic attack. He went on to say that he had been waiting for fourteen months to get help for his drug addiction. He did not know when he had last taken drugs.[12]When he was interviewed on 10th May 2003 he was asked about the findings from the analysis of his blood. He denied that he had taken amphetamine and could not explain how it came to be in his blood. He said that he was prescribed diazempam by his doctor and remembered taking one tablet two days before the accident.[13]In summary, the offender drove having taken drugs which, whilst not necessarily affecting his ability to drive a vehicle, may have had an effect on his ability to manage his diabetes at a time when he knew that because of the antibiotics he was taking for his infection in his arm that his daily insulin requirement was unstable.[14]Against that factual background Mr Denison on behalf of the Attorney General submits that there were a number of aggravating features. He submits that the offender drove at a time when he knew that his diabetic control requirement was unstable because of the antibiotics that he was taking. Secondly, he contends that it is a further aggravating feature that he drove and killed a person after having taken drugs which may have affected his judgment at a time when he knew that his diabetic control requirement was unstable because of the antibiotics that he was taking. Thirdly, the offender must have known that he was unfit to drive that morning as he felt sufficiently unwell before the hypoglycaemic attack to feel it necessary to attend his doctor's surgery. Fourthly, he drove and killed without having insurance and without having a driving licence since January 1998. Finally, in the circumstances to which we have already referred, it is submitted that the offender endangered not only the life of others but also the life of his 10-week-old child by driving with her as a passenger in the front seat of the car.[15]On the other hand it is recognised that there were a number of mitigating features. The first is that the offender had pleaded guilty: it was not at the first possible opportunity, but the judge thought it right nonetheless to give him full credit in the particular circumstances for his plea of guilty. Secondly, it was accepted that he had shown remorse and that that remorse was genuine. Thirdly, he had no previous convictions for driving offences. Fourthly, he had always in the past successfully controlled his diabetes.[16]Against those aggravating and mitigating factors it is submitted that the sentence of eighteen months' imprisonment with the four-year disqualification from driving was unduly lenient, in that it did not adequately reflect the gravity of the offence in view of the aggravating features and in consequence it failed to provide the necessary levels of punishment and deterrence required for offences of this type.[17]We have had our attention drawn to two cases. The first, unsurprisingly, is the guidance given by this court in the case of Cooksley and others and the Attorney-General's Reference No 152 of 2002 [2003] 2 Cr App R 18 at page 275. There the court sought to lay down, consequent upon advice given to it by the Sentencing Advisory Panel, the appropriate level of sentencing for offences of causing death by dangerous driving. In its advice to the court the Sentencing Advisory Panel had set out a number of aggravating factors, splitting them into a first category of those which it described as "highly culpable standards of driving at time of the offence". They included, at paragraph (a), "the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a 'motorised pub crawl'". Further, at paragraph (g), it included "driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills".

(j) read:

"Other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle."
It is submitted to us that paragraphs (a) and paragraph (g) have a relevance to this case -- and we will return to them shortly -- and also that the absence of the licence and the absence of insurance brought the matter to be considered under paragraph (j) as well.[18]The guidance given by the court as to the level of sentencing was to split the possible offending into three categories of seriousness: firstly, those with no aggravating circumstances, secondly, those described as intermediate culpability, and, thirdly, those of higher culpability. So far as higher culpability was concerned, the Panel had recommended that the approach should be that a case came into that category:
"When the standard of the offender's driving is more highly dangerous (as would be indicated, for example, by the presence of one or two of factors (a) to (i) the Panel suggests that the appropriate starting point would be a custodial sentence within the range from two to five years. The exact level of sentence would be determined by the dangerousness of the driving and by the presence or absence of other aggravating or mitigating factors."
The court accepted in principle that there should be a category of the kind suggested, but came to the conclusion that the band of two to five years was simply too wide and that the starting point ought to be to consider a much narrower band of four to five years in relation to a contested case of this type. That was to be contrasted with the acceptance by the court of a range of two to three years, where there was intermediate culpability.[19]It is submitted on behalf of the Attorney General that this case came into the higher culpability bracket so that the starting point on a contested matter ought to have been within the range of four to five years and that if one started from a point such as that, even having regard to the mitigating features in this case and particularly the guilty plea, it was not possible for a judge properly to end at a figure of eighteen months' imprisonment. It is for that reason that it is submitted that the sentence has to be viewed as being unduly lenient.[20]The other case, which was drawn to our attention really by way of illustration of the problems that arise where the dangerous driving results from a diabetic condition, is the case of Davies [2002] 1 Cr App R (S) 135 at page 579. That was a case in which a lorry driver caused the death of three persons. He had driven at a time when he had a history of diabetes and he suffered a hypoglycaemic attack whilst driving. That was because he had failed to take proper precautions to ensure that he would not suffer such an attack. It had an aggravating feature that it was not the first time that he had driven and suffered such an attack so that he was particularly aware of the dangers. He had been sentenced to three years' imprisonment and the court concluded that that sentence was not manifestly excessive.[21]It is not suggested that that case factually can be equated to this case one way or the other because there are different factors that militate in one direction in respect of some matters and in the other direction in respect of others, but it indicates, so it is submitted, the broad approach of the court to cases of this kind.[22]The submissions made on behalf of the offender by Mr Johnson in his helpful skeleton argument and in his useful address to the court are that the sentence was one within the proper range that was open to the judge. He accepts that it may be viewed as being a lenient sentence, but he submits that it cannot be characterised as being unduly lenient.[23]The first point that he makes is one with which we wholeheartedly agree: the sentencing exercise for the judge was a particularly difficult one. We think that this was a case where there was little guidance for the judge over and above the matters to which we have already referred and that the particular circumstances of this case really have not been replicated in other cases. We think it is right that the judge in those circumstances was, as is suggested, dealing with a matter which was peculiarly difficult.[24]It is submitted that, notwithstanding those problems, the sentencing judge very carefully considered all the factors, properly took into account the guidance given by this court in Cooksley and reached his conclusion, giving considerable weight to the mitigation that there had been in this case. It is submitted in those circumstances that a sentence of eighteen months can be seen as a proper sentence within the range, even if it was at the lenient end of the range.[25]If at the end of the day the court reaches a conclusion that it was unduly lenient, Mr Johnson rightly invites the court to bear in mind that this is the second occasion on which the offender's sentence has to be considered and to make the normal allowance that is to be made for what has come to be known as double jeopardy.[26]We have anxiously considered this case for the reasons that we have already made clear as to the difficulty that it represents. At the end of the day we have reached a conclusion that this sentence was unduly lenient. We make clear though that we are not over-critical of the judge in reaching that difficult decision. The driving on this occasion was, on any view of it, appalling. That in itself would be a very serious matter were it not for the factor of diabetes. The factor of diabetes explained why driving of this dreadful standard in fact took place and to that extent it mitigates the serious nature of the way in which the driving occurred. However, where such bad driving results from a failure properly to manage the offender's own condition that, as Cooksley makes clear, is a seriously aggravating feature of an offence of this kind. In the light of the guidance given by this court in Cooksley, we think this has to be viewed as being a case that does come in that top category, where the appropriate starting point would be, if the matter was contested, a sentence of the order of four to five years. The offender had driven at a time when he knew that there were problems with his diabetes and his control of it, and he had exhibited a failure to take proper care to make sure that that would not represent a substantial risk to others if he drove his vehicle. The taking of the drugs was not in this case a factor which in itself ought to have called for a longer sentence, in that the level of drugs was not such as to be likely to cause a greater risk of harm. But they also have to be seen in the separate context of his management of his condition. He must have known that the taking of drugs would make it considerably more difficult for him to manage his diabetes and that any failure to manage his diabetes coupled with driving represented a serious risk for other road users. We debated with counsel during the course of the hearing whether this is properly to be seen as a case with two aggravating features, both (a) and (g) on the list to which we have referred, or whether it really is simply a case in which one looks at (g). It seems to us unnecessary to resolve that matter. Clearly it is a matter of relevance that there were the drugs, but it is not relevant in the way that it normally is because they did not in themselves represent the danger, they only represented the danger when they were coupled with the condition.[27]Nonetheless it seems to us that this is a case in which the proper sentence on a contested matter would have been a sentence of the order of four to four-and-a-half years' imprisonment. Making every allowance that one can for the mitigation that there was and certainly discounting the sentence for the guilty pleas, which the judge thought attracted a full discount, it seems to us that the judge could properly conclude that the sentence could be reduced to a sentence of the order of two-and-a-half to three years but that it could not further be discounted below that level. Accordingly, we view that as being the appropriate level of sentencing in the circumstances of this case and if we had been passing sentence at first instance a sentence in that bracket would have seemed appropriate to us.[28]We now have to consider what should be done following our conclusion that this sentence is unduly lenient. It is clearly right that we should follow the normal practice of discounting the sentence we otherwise would have deemed to be appropriate. Having considered the matter carefully, we think that this is a case in which we are obliged to interfere with the sentence passed by the judge but that it should not be a great interference because of the element of double jeopardy. For those reasons we have concluded that we should set aside the sentence of eighteen months' imprisonment and substitute for it a sentence of two years' imprisonment. We make clear that that is not the sentence we would have deemed appropriate if the matter had been heard at first instance.[29]There is no consequential order because he is in custody?[30]MR DENISON: No, my Lord. Do your Lordships confirm the four-year disqualification period?

LORD JUSTICE KAY: Yes. We have not been invited to consider any aspect in relation to that, so that remains unaffected.

[32]Thank you very much. We meant it when we said we were grateful for the help you have given us.