Attorney General's Reference No 90 of 2004 [2004] EWCA Crim 3285

Case No 200403947/A2

[2004] EWCA Crim 3285

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 21st October 2004

Strand

London, WC2

B E F O R E:

LORD JUSTICE AULD

MR JUSTICE OWEN

MR JUSTICE HEDLEY

REFERENCE BY THE ATTORNEY GENERAL UNDER

S.36 CRIMINAL JUSTICE ACT 1988

ATTORNEY-GENERAL's REFERENCE NO 90 OF 2004

Computer Aided Transcript of the Stenograph Notes of

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MR A JAFFERJEE appeared on behalf of the ATTORNEY GENERAL

MR S COUGHTRIE appeared on behalf of the OFFENDER

J U D G M E N T

Lord Justice Auld:

[1]This is an application by the Attorney General under section 36 of the Criminal Justice Act to refer to the Court a sentence appearing to him to be unduly lenient. We grant leave to refer and treat the hearing of the application as the hearing of the reference.

[2]The offender, who is now aged 24, is Stephen Paul Kenny Chambers. On 14th May 2004, before His Honour Judge Cole at the Crown Court in Coventry, he pleaded guilty to causing death by dangerous driving and to making off without payment. On 14th June the judge sentenced him for the former offence to a term of three and a half years' imprisonment, disqualified him from holding a licence for seven years and required him to take an extended driving test. In relation to the offence of making off without payment, the judge sentenced him to a concurrent term of three months' imprisonment.

[3]The facts were as follows. At about 8.50 in the morning of Monday 23rd February 2004 the offender drove his Ford motor car to a petrol station in Hinckley Road in Coventry. He had a front seat passenger. He placed £20 worth of petrol in the tank and then made off without paying. He drove off in a normal manner, seemingly not wishing to attract the attention of the petrol station attendant. He then drove along the main road, Hinckley Road, leading into Coventry, which was subject to a 40 mile an hour speed limit. The road is a busy dual carriageway, providing a main arterial road into and out of Coventry with direct access to motorways. About half a mile from the petrol station it forms a busy crossroads controlled by automatic traffic signals. The traffic lights could be seen from at least 300 metres on the offender's approach to the junction. Also, some 100 metres before the junction there was a traffic sign warning of a patrolled school crossing ahead, the pelican crossing. That was some 50 metres beyond the junction.

[4]The traffic lights on the junction were operating correctly, other than a non-operational green light on the nearside which had no bearing on the events that occurred. The pelican crossing lights were linked to the signal sequence of the traffic lights. The timing phase of the pelican's lights were such that the moment the junction traffic lights turned red there was a ten seconds delay before the corresponding pelican crossing lights operated; a safety margin for pedestrians built in of some ten seconds.

[5]At about 10 minutes past 8 that morning the crossing patrol lady, "the lollipop lady", Mrs Joy Briggs, who was 71 years old, had started her duty at the pelican crossing. She was wearing a bright yellow calf length coat with two wrap round reflective strips over the upper body and reflective strips on the shoulder and arms of the garment. She also had the regulation school crossing patrol pole and board, which is generally referred to as a lollipop. The routine that she followed that morning, and that she always followed, was to walk to the centre of the carriageway once the pelican signal lights became green for pedestrians and to hold both arms out, with the lollipop in her left arm. Once she was satisfied that all traffic was stationary, she would signal the children and any adults with them to cross the road. The weather conditions were bright, sunny and crisp and the road surface was dry.

[6]The offender, having left the petrol station, drove at about 35 miles an hour, but then he began to pick up speed. He overtook a vehicle that was travelling in the outside lane and then pulled across into the lane of that motorist. Witnesses' estimates of his speed as he approached the junction varied between 20 and 60 miles an hour. The offender said, in interview, that he had approached the junction at about 40 miles an hour. The judge found that, whatever his exact speed, it was too fast for the rush hour traffic.

[7]On the opposite side of the junction three pedestrians had gathered at the central reservation, waiting to cross. They were a nurse, Mrs O'Callaghan, Mrs McPartland, and her granddaughter, Bethany, aged four. Mrs Briggs had got to the middle of the carriageway and was holding her arms out-stretched with the lollipop in her hand and her back to the traffic stationary behind her at the traffic signals at the junction, which were red. All seemed to be well. The pedestrians then stepped into the road. Mrs O'Callaghan had virtually reached the other side of the carriageway, with Mrs McPartland and Bethany still in the middle of it behind her, when the offender, having driven through the red traffic lights, continued on through the pelican crossing. In doing so, he struck Mrs Briggs, Mrs McPartland and Bethany with his front nearside wing.

[8]Taking into account the linked phasing of the traffic signal and the pelican crossing lights and the time taken for the pedestrians to reach the point of collision, a collision investigator concluded that the traffic signal would have been on red for between 13 to 16 seconds before the collision and between 10 to 13 seconds before the offender crossed the stop line. Witnesses described him as having gone straight through the red traffic lights and then through the people crossing the road at the pelican crossing without any apparent attempt to avoid them, or to slow down.

[9]Mrs Briggs was thrown into the air, and then seemingly landed on the roof of the offender's car before falling into the carriageway, suffering significant, but not permanent, injuries. Mrs McPartland was thrown back towards the central reservation, landing on the pedestrian barrier, suffering fatal injuries. Bethany, though to some extent cushioned from the impact by her grandmother, was thrown forward by about ten feet, landing on her knees with her face touching the road. She appeared to be unconscious, but happily there was no long term serious injury to her. One witness, a motorist who was stationary at the lights at the time, described the collision as "arms and legs everywhere".

[10]The offender momentarily slowed down after the collision, but he nevertheless drove away. He overtook a vehicle at a speed of 50 to 60 miles an hour and then drove round the nearside of vehicles that were stationary in the rush hour conditions. He forced an on-coming vehicle to brake sharply to avoid a collision. A witness described him as swerving in and out of traffic. He then left the main road and travelled along a single lane road controlled by a 30 mile per hour speed limit. In doing so, he overtook a bus at about 40 to 45 miles an hour, forcing the driver of the bus to brake sharply in order to create a gap between himself and the motorist in front so that the offender could enter the gap. The offender then kept trying to move out in order to overtake the car in front. He eventually overtook on the nearside three stationary cars waiting to turn right. In doing so, he drove across the path of an on-coming vehicle, which was forced to brake sharply to avoid a collision.

[11]Some three quarters of a mile from the scene of the collision the offender collided with the off-side wing mirror of a vehicle in the on-coming lane. He continued to drive at a speed of about 60 miles per hour, overtaking at least five vehicles and straddling the centre of the white line before disappearing from view.

[12]As we have indicated, Mrs McPartland died. She died the following morning from head and multiple injuries. Mrs Briggs was in hospital for two weeks with severe head trauma and bruising to her face and legs. Bethany suffered minor cuts and bruising.

[13]The offender did not give himself up to the police or attend the police station. He was arrested the following afternoon at his mother's home. He told the police that he had been going to hand himself in, having learned of the fatality. He added that he was "really sorry for the family". He said in interview that he had left the garage without paying for the petrol because he had had no money to pay for it. He maintained that the traffic lights at the junction had been green for him. He described the accident in the following words:

"The next thing I know is I've seen a traffic lollipop lady standing in the middle of the road. Two people were crossing. I didn't see it till the last minute. If I swerved one way I was going to hit the lollipop lady; if I swerved the other way I was going to hit other people. I saw a gap in the middle -- that's the way I went because if I would have braked I could have skidded. My passenger had warrants for his arrest and he kept telling me 'just drive'. I made the choice, that's down to me. I was aware of the speed limit. I approached the junction at about 40 miles per hour."

[14]The police officer asked him if he knew that he had hit people. He said:

"I'm not sure -- it happened so fast. I must have hit something or someone but I just don't remember ... I really didn't think I hurt anyone at all. I obviously have hit them ... I know I've done wrong."

[15]He told the officers that he was a heroin addict, but denied that he had been under the influence of drugs at the time of the offence.

[16]In mitigation, Mr Coughtrie, who appears for the offender again today, told the judge that he had been addicted to heroin for some three years and that the reason he was out in his car that morning was to try to find some drugs.

[17]Mr Jafferjee, who appears on behalf of the Attorney General, has referred the Court to the recent sentencing guideline case of R v Cooksley and Others

[2004] 1 Cr App R(S) 1

. That was a case in which the Lord Chief Justice gave sentencing guidelines for the offence of causing death by dangerous driving, having regard to the now increased maximum sentence for that offence of ten years' imprisonment.

[18]In the course of his guidance, the Lord Chief Justice identified four broad categories of seriousness of this type of offence. More precisely he set out four starting points: the first when there were no aggravating circumstances, for which the Court indicated a sentencing bracket of 12 to 18 months; the second of intermediate culpability, where it indicated a bracket of two to three years; third, higher culpability, where the Court's bracket was four to five years; and most serious culpability, where the Court put the starting point at six years or over. All of those brackets and starting points are on the basis of conviction after a plea of not guilty.

[19]Mr Jafferjee invited the Court to consider the aggravating features of the case, which the Court also spoke about in its guidelines, and which have been a traditional feature of sentencing in this type of offence. He suggested that the case fell into the highest category of most serious culpability, with a starting point of six years' imprisonment or more on a plea of not guilty, or the lesser category of higher culpability with a bracket of four to five years' imprisonment if the Court separated from the seriousness of the offence in that bracket some discrete aggravating circumstances. One way or another, it appeared to the Court that he suggested a starting point of something very near six years' imprisonment, and probably more having regard to the aggravating features.

[20]The indicators for the high starting point he itemised in the following way: aggressive driving; driving too fast in rush hour traffic; blatant disregard of a red light traffic at a busy crossroads, a sign that had been showing for at least ten seconds before the offender crossed it and with other vehicles stationary at the stop line; the fact that the pedestrians who were struck were using a pelican crossing additionally controlled by the lollipop lady wearing her obvious uniform; the fact that the pedestrians had already reached the middle of the road; and the fact that the offender took no evasive action.

[21]Mr Jafferjee then invited the Court to consider, in addition, the following aggravating features.(1) the offender was driving without insurance and without a full driving licence, his provisional licence being no longer valid;

(2) he had previous convictions for motoring offences, including driving whilst disqualified, no insurance and no licence;

(3) in addition to causing the death of Mrs McPartland, he had caused serious injury to Mrs Briggs;

(4) he was, as the judge found, anxious to get away, having made off from the garage without paying for petrol;

(5) the reason for the journey was to acquire heroin;

(6) he failed to stop;

(7) he continued to drive dangerously after the fatal collision over a significant distance; and

(8) he was subject to a 18 months Community Rehabilitation Order at the time of the offences, imposed in June 2003 for theft from shops.

[22]Mr Jafferjee also pointed to two mitigating features: first, the offender's plea of guilty at the earliest opportunity; and, second, he displayed an element of remorse, as the judge below described it, that is to say after the police officers found him in his mother's home and arrested him.

[23]Mr Jafferjee submitted that, in the light of all those factors, both those going to the categorisation of the seriousness of the offence and the discrete aggravating features, the sentence of three and a half years' imprisonment was unduly lenient. He said that it failed to mark the true level of culpability of the offender's driving and it also failed to mark the various aggravating factors to which he referred.

[24]Mr Coughtrie submitted that the sentence was not unduly lenient. He maintained that the Judge took the view that this case did not fall into the most serious of the Cooksley categories, most serious culpability, but into the lesser category of higher culpability, for which the bracket was four to five years on a plea of not guilty. On that approach, he said that a three and a half year period of imprisonment on a plea of guilty would have been suitable, even after allowing for the discrete aggravating factors. He pointed out that, one way or another, the Judge took into account all the material facts of the case.

[25]In our view, the offence in its immediate circumstances was one of a very high level of dangerous driving, involving, as it did, driving through traffic lights which had been showing red for a considerable time and then through a pelican crossing on which there were pedestrians and Mrs Briggs in her very visible uniform, her arms out-stretched and her baton in her left hand, all of them obviously in his path. How he could have failed to see and heed all those warning signs and drive straight through them beggars belief. In our view, the offence itself clearly falls into the most serious of the four Cooksley categories indicated by the Lord Chief Justice, that of the most serious culpability. As such, the appropriate starting point on conviction following a plea of not guilty is, as we have said, six years or more.

[26]It is then necessary to consider, without double counting by reference to that starting point -- and there is scope for overlap here -- the aggravating features, and also to allow for such mitigating features as there are. We have referred to the numerous aggravating features:including; the fact that he was driving uninsured and without a licence; the fact that he not only caused the death of Mrs McPartland, but also serious injuries to Mrs Briggs, and, no doubt, would have caused serious injury to the child but for Mrs McPartland's instinctive bravery in shielding her from the impact; the fact that he failed to stop when he must have known that he had caused, at the very least, serious injuries to one or more of the pedestrians on the crossing; and the associated fact that thereafter he drove aggressively and dangerously over a considerable distance in the morning rush hour in a bid to distance himself and his passenger from the scene of his crime. There were also the facts of his previous motoring convictions, his breach of the Community Rehabilitation Order and that he was driving that day in an attempt to find drugs.

[27]Against all those seriously aggravating factors, his mitigation is meagre: his early plea of guilty -- an inevitable plea in the circumstances -- and the fact that he showed, but not before his arrest, some element of remorse.

[28]In our view, the appropriate starting point on a plea of not guilty, having regard to the high level of culpability for the offence itself and the additional aggravating features to which we have referred, would have been a sentence of seven years' imprisonment. Having regard to his plea of guilty and such little other mitigation as there has been, the appropriate sentence below would, in our view, have been one of five and a half years' imprisonment.

[29]We are therefore of the view that the Attorney General's Reference is well made and that the sentence of three and a half years' imprisonment was unduly lenient. Having regard to the double jeopardy for the offender occasioned by the Reference, that is to say that he has had to face the ordeal of a sentencing decision twice, we shall grant the Reference and substitute a sentence of four and a half years' imprisonment.