Attorney General's Reference No 27 of 2004 [2004] EWCA Crim 1830

Case No 200401429/A2[2004] EWCA Crim 1830
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 2nd July 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE MITTING
SIR JOHN ALLIOTT
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 27 OF 2004
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MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL
MR C TEHRANI appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE KEENE:

[1]This is an application under section 36 of the Criminal Justice Act 1988 by HM Attorney General for leave to refer a sentence to this Court because it appears to him to be unduly lenient. We grant leave and we treat this therefore as the hearing of the reference.[2]On 15th January 2004 at Leeds Crown Court this offender was convicted after a three day trial of causing death by dangerous driving. On 10th February 2004 he was sentenced by His Honour Judge Spencer QC to a Community Punishment Order of 180 hours and was disqualified from driving for a period of five years. An order was made for the endorsement of his licence and it was directed that he remain disqualified until he had passed an extended driving test.[3]Both the offender and the victim were young men and both were, by coincidence, serving soldiers stationed at Catterick. The offender was aged 19 at the time of the offence, as was the victim, Anthony Broadhead. The offender had passed his driving test about a month before, in June 2002, and had bought a car. On 4th July 2002 he drove from Catterick to Ashton under Lyne near Manchester and spent the evening in a public house from about 8.30 p.m. to 1.30 a.m.. After about two hours sleep he set off back to Catterick, at about 4.30 in the morning, via the motor network and the A1. The driving conditions at the time were poor. It was raining heavily and spray was being thrown up by the traffic.[4]At about 5.50 a.m., while on the northbound carriageway of the A1 at Wetherby, the offender pulled to the offside to overtake a vehicle. At this stage the road was a dual carriageway. According to what he said in interview, as he pulled out the rear end of his car skidded, causing it to hit the central reservation. The vehicle travelled back across the carriageway and along the nearside banking. It then overturned and it came to rest on its roof just to the offside of the line dividing the two northbound lanes of that carriageway. There were various estimates of the speed at which the offender's car had been travelling, but the majority of eye witnesses put it at between 80 and 85 miles per hour. There was a 70 mile per hour speed limit on this stretch of road.[5]The sudden and erratic movement of the offender's car caused the driver of the following vehicle to take evasive action. This was a heavy waste carrying lorry, drawing a double axle skip trailer, which steered to its offside and stopped in the outer lane. It is clear that it stopped quite suddenly. A van behind the lorry managed to pass it in the inside lane, but a car, a Fiesta being driven by Anthony Broadhead, struck the side of the van and then collided at speed with the rear of the lorry's trailer, causing massive damage to the front of the car. Anthony Broadhead died from his injuries.[6]The offender's vehicle was found to have no defects likely to have caused or contributed to the accident.[7]There was evidence that Mr Broadhead's car, the Fiesta, had been travelling at 70 miles an hour on the road, a speed which in itself was regarded as excessive by some onlookers. Certainly the sentencing judge found on the evidence he had heard it was likely that the deceased was driving too fast. There was also evidence that the deceased was not wearing a seat belt, and the sentencing judge accepted evidence given during the trial that it was entirely possible that had he been wearing such a belt it might have saved his life. Both the front tyres of the Fiesta, Mr Broadhead's car, had excessive wear, and it may also have been that he was sitting in a position close to the steering wheel of the car which may have made him more vulnerable.[8]The offender's blood alcohol level at the time of the accident was calculated as being between 59 and 68 milligrammes of alcohol in 100 millilitres of blood. Even though the legal limit for driving is 80 milligrammes per 100 millilitres, it was agreed evidence in the trial that the effect of extensive scientific research was that levels of blood alcohol over 40 milligrammes per 100 millilitres significantly increased the deterioration in driving ability due to sleepiness, without the driver being aware of his level of fatigue, and that alcohol itself would have affected the offender's driving directly and also by exacerbating his tiredness. It might have reduced his perception of his own tiredness.[9]After the accident the offender was on sick leave for seven to eight months, following a diagnosis of post-traumatic stress disorder by an army psychiatrist. Thereafter he was discharged from the army on medical grounds.[10]At the time of the offence he had no previous convictions, although since then he, on two occasions, drove without third party insurance.[11]A psychiatric report on him refers to him expressing spontaneous remorse for the victim and the victim's family. His mental state was described by then as being anxious and depressed, and, indeed, he was on anti-depressant drugs.[12]The Attorney General contends that the sentence passed was unduly lenient in that it failed to mark the gravity of the offence, the aggravating features present, the need to protect the public from harm by the dangerous use of motor vehicles on the road, and the public concern about cases of this kind. It is submitted that an immediate custodial sentence ought properly to have been imposed. By "aggravating features" is meant the fact that the offender drove at excessive speed for a distance along this trunk road in poor driving conditions with the result that he lost control of his vehicle.[13]Mr Heywood, who appears for the Attorney General, has referred us, in particular, to the leading case of R v Cooksley [2004] 1 Cr App R(S) 1, where the Lord Chief Justice, giving the judgment of this Court, set out guidelines for sentencing in such cases based upon the recent advice of the Sentencing Advisory Panel. We shall return to those guidelines later in this judgment.[14]While it is acknowledged by Mr Heywood that there were mitigating features present, it is argued that none of those were exceptional so as to warrant a non-custodial sentence in this case. The Attorney General submits that this case would have come into the intermediate category of the categories set out in the case of Cooksley, a category which begins with a starting point of between two and four years' imprisonment.[15]On behalf of the offender Mr Tehrani emphasises those mitigating features conceded by the Attorney General. The offender was only 19 at the time with little driving experience, having only recently passed his test. He is described as being genuinely remorseful about the death of Anthony Broadhead and is suffering, as we have indicated, from post-traumatic stress disorder which has meant the end of his army career. We have been shown letters which suggest that he is now beginning to put his life back on an even keel after a period of considerable psychiatric disturbance.[16]Furthermore, it is pointed out that to some extent the death of the deceased was contributed to by the speed at which he was driving, plus the fact that he was not wearing a seat belt, the fact that the tread of the front tyres of his car were worn to a degree below the lawfully prescribed minimum depth and the apparent fact that his driving seat was incorrectly adjusted. Mr Tehrani submits that that those factors amount to exceptional circumstances which would have allowed for a non-custodial sentence in this particular case.[17]He particularly emphasises that the offender's driving was not the sole cause of death. He also stresses that, although there was no plea of guilty here, that was because there was an issue as to whether the offender's dangerous driving did in fact cause, or contribute, to the death of Mr Broadhead. There was no real issue at trial as to the dangerousness of the offender's driving. That is a proposition which we accept. It is accepted by Mr Tehrani that this was a lenient sentence passed by the learned judge, but his submission is that it was not unduly lenient.[18]So far as the factors of alcohol consumption and lack of sleep are concerned, it is argued on behalf of the offender that there was no evidence before the judge as to why the offender lost control of his car. It seemed to have been a misjudgment that caused the loss of control and it should be borne in mind that this was a fit young man on whom the lack of sleep, at least, may well not have had as much effect as it would have done on someone who was older.[19]For our part we accept that there was substantial mitigation in this case as set out by counsel, although we do not accept that a full discount for a plea of guilty could be given. There was no such plea because, even though the offender did not deny the dangerousness of his driving, he was, nonetheless, seeking to deny responsibility for Mr Broadhead's death. Even though Mr Broadhead's own actions may have contributed to his own death, it is clear from the jury's verdict that they found that the offender's dangerous driving was itself a cause of that death.[20]In the case of Cooksley at page 10 the Lord Chief Justice, giving the judgment of this Court, said this:
"A factor that courts should bear in mind in determining the sentence which is appropriate is the fact that it is important for the courts to drive home the message as to the dangers that can result from dangerous driving on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standards of driving. Motor vehicles can be lethal if they are not driven properly and this being so, drivers must know that if as a result of their driving dangerously a person is killed, no matter what the mitigating circumstances, normally only a custodial sentence will be imposed. This is because of the need to deter other drivers from driving in a dangerous manner and because of the gravity of the offence."
[21]The decision of this Court in that case makes it clear that a non-custodial sentence can only be justified if there are exceptional mitigating circumstances present.[22]We do not regard the age and inexperience of this offender as being in any sense exceptional. They are characteristics possessed by many young drivers on the roads of this country. Nor do we accept that the fact that the deceased's actions contributed to his death amounts to an exceptional circumstance. Given the complexity of road accidents in this country, it will not be rare for the deceased's actions to have made some contribution to his own death.[23]We conclude that there should here have been a custodial sentence. Indeed, we note that in the course of his submissions in mitigation at first instance the offender's counsel accepted that custody was the only option. That, in our view, was a realistic approach to adopt. There were aggravating features present. The excessive speed in the driving conditions, which, even to an inexperienced driver, should have made it plain that such speed was dangerous. But this Court also would not have overlooked the fact that there was alcohol in the offender's bloodstream to a significant degree, even though below the legal level and that he had had very little sleep that night. Those factors must have affected his driving capability.[24]In the judgment of this Court a custodial sentence was called for and the Community Punishment Order was unduly lenient. What should it have been at first instance? Nothing, of course, that a court of law does can undo the tragedy of the loss of a human life. The sentence has to reflect that loss, but it also has to reflect the degree of culpability by the offender and cases vary enormously in that respect. In the present case we bear in mind the mitigating factors to which we have already referred and the age of the offender. In the judgment of this Court, at first instance a custodial term of around two years' imprisonment would have been appropriate.[25]That is not the end of the exercise which we have to perform. We now have to decide whether to intervene in the circumstances as they stand today. We have to allow for the element of double jeopardy. Any term of imprisonment would have to be reduced to allow for the fact that this young man is now having his sentence dealt with a second time and that he has been performing a non-custodial sentence in the meantime. Furthermore, he has completed a substantial part of the 180 hours of the Community Punishment Order which was imposed on him. We have been told that he has now completed 106 hours, well over half the sentence imposed. That, too, is a consideration which we have to take into account. When we put those factors together, it seems to us that only a very short sentence at most could properly now be imposed. When we then bear in mind the offender's own current position there seems to be little point in sending him to prison for such a very small time with the potentially deleterious effects that that is likely to have.[26]Consequently, while the sentence imposed here was unduly lenient, and we do not criticise the Attorney General for bringing this reference, as a matter of discretion the Court in the present circumstances declines to interfere with it. The Community Punishment Order and the ancillary orders made below will, therefore, stand.