Brown, R v [2005] EWCA Crim 2868

Case No 05/3151/A9[2005] EWCA Crim 2868
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 19 October 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE HOLLAND
HIS HONOUR JUDGE WIDE
Between
R E G I N ACrown-v-
Between
CHARLES JAMES BROWN
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR COLIN AYLOTT appeared for APPLICANTMISS J STANSFIELD appeared for CROWN
J U D G M E N T

LORD JUSTICE GAGE:

[1]On 28th April 2005 at Luton Crown Court this applicant pleaded guilty to an offence of manslaughter. On 11th May 2005, at Chelmsford Crown Court, he was sentenced in respect of that offence to ten years' detention in a young offenders institution. A count of dangerous driving was left on the file on the usual terms. In addition, he was disqualified from driving for twelve years and thereafter ordered to take an extended retest. He applies for leave to appeal against his sentence following refusal by the single judge.[2]The facts of this matter are as follows. Following the break up of his relationship with his girlfriend, at about 3 pm on 5th December 2004 the applicant sent a text message to his mother saying that he did not want to live any more. He then proceeded to drive, deliberately, his Vauxhall Vectra motorcar against the flow of traffic along the hard shoulder of the A1(M) at high speed, before moving into the carriageway, still accelerating and straddling the centre line. He then crashed, head on, into an oncoming car driven by a man called Webb. Mr Webb had tried to take evasive action, but the applicant replicated his actions. Mrs Webb, a young mother who was sitting in the front passenger seat, was killed instantly. Mr Webb sustained a broken arm and minor cuts to his face and head. Their young daughter, aged 2, was in the rear seat of the car and was, miraculously, uninjured. Other vehicles were caught up in the incident, as a result of which the applicant was also severely injured. We are told that his injuries were substantial. He lost his spleen and will be permanently affected throughout his life. He disclosed to a paramedic at the scene that he had been travelling between 60 to 80 mph and that he had wanted to kill himself. He said that he went head on into the other car. He asked about the woman's welfare. He said that he wished he had hit a lorry.[3]In a psychiatric report which was before the court, to which we will make reference again, the author of the report records him as saying in relation to this matter that:
"He focused purely on the speed of his car and picked out the first available vehicle for him to execute his plan. He stated that he had had no thoughts about the passengers of the other vehicle but was concentrating solely on the speed of the car and his own annihilation."
[4]He has one previous conviction, but the judge rightly treated him as effectively a young man of good character.[5]There were two psychiatric reports before the judge, to the second of which we have already referred. So far as that is concerned, the author of the report concluded that there was no evidence of any mental illness. He said in the final paragraph of his report dated 28th April 2005:
"... I am unable to recommend a psychiatric disposal to the court. Mr Brown recognised that his was a foolish and extreme act and appears remorseful about its consequences. He may benefit from reasoning and rehabilitation training within the prison system should he be found guilty."
[6]Today, on his behalf, Mr Aylott has sought to persuade this court that the matter should be stood out of the list in order for a further report to be commissioned in respect of this applicant's mental state.[7]There is no evidence at this stage that he was at the time suffering from any mental disability at all. The suggestion that he may have been at the time comes from his family, who are, understandably, no doubt, extremely anxious about this matter. However, we have concluded that, in the absence of any medical evidence to support this application, it is pure speculation, and we decline to adjourn this appeal.[8]When it came to sentencing this man the judge, having referred to the facts of the driving, said this (page 2F):
"I must and do sentence you on the basis that you did not intend to cause serious injury, let alone kill anyone else, otherwise you would have been facing a charge of murder. There is no suggestion that you are suffering or suffer now from any mental illness."
Pausing there, the judge was doing no more than recording his view of what had been said in the psychiatric report to which we have just referred. Next:
"You are a perfectly intelligent young man and I believe that you must have realised that what you were to do would be very likely to cause the death of, or very serious injury to, someone else. Your own self-centred concerns cast aside any concern for others. ... What you did was in my view more serious than a case of causing death by dangerous driving, hence the charge of manslaughter or unlawful killing. You used your car as a weapon in an attempt to kill yourself but in circumstances where it was bound to be an awful weapon against others. The result was the loss of the life of a fine young woman; a mother, wife and daughter and good friend to those who know her."
There were before the judge, as there was before this court, impact statements which record the devastating effect which this incident has had on the family of the deceased.[9]In grounds of appeal and submissions to this court today, Mr Aylott has prayed in aid a number of factors. First, he relies upon the applicant's age and his guilty plea. Further he submits that the judge chose to treat him as a young man of good character. He submits that this was an impulsive action of a young and immature man. All these matters should be taken into account when considering what the appropriate sentence was for him. He submits that the ten years sentence which the judge passed upon him did not accurately reflect the lack of criminality in what he did. It equates to a sentence of fifteen years on a conviction, and so, submits Mr Aylott, is too long.[10]Next, he relies on the personal mitigation available to the applicant. His health, as we have indicated, has been affected by the incident; and, as we have also said, it was an impulsive action of a young man who was very distressed at the time by the break up of the relationship with his girlfriend.[11]Mr Aylott has referred the court to a number of decisions of cases heard in this court dealing with motor manslaughter. They are: R v Gault (1995) 16 Cr App R (S) 1013; R v Wright [2004] 1 Cr App R (S) 40; R v Franks [2005] 1 Cr App R (S) 13; and R v Ballard [2005] 2 Cr App R (S)186. We have carefully looked at those decisions. Mr Aylott recognises that there is no case which equates to the facts of this case. Indeed, in Ballard, the court said, in a passage with which we agree at page 190 paragraph 15:
"No two cases are the same."
[12]This case illustrates that point very forcibly. We do not glean any real assistance from any of the cases that have been cited before us, save to say this: there was not in this case the elements of criminality pointed out by Mr Aylott that appear in the others, namely hostility or aggressive action towards a member of the public and the consumption of drugs and alcohol.[13]The judge, when sentencing this applicant described his driving as "appalling". In the judgment of this court, it is difficult to think of a course of deliberate driving which could be more serious and more dangerous. The object was for the applicant to kill himself, but in so doing it was inevitable that others would be put at very considerable risk. On any objective view of what he did it was almost certain that at the very least one and indeed several other people would be injured. As it turns out, one was killed and another quite seriously injured. The applicant said that he wanted to run into a lorry, but when faced with a car he took action to prevent the driver of the other vehicle avoiding a collision.[14]This was, undoubtedly, a very severe sentence and one passed on a young man. But, as the judge pointed out, this was an offence of manslaughter and not death by dangerous driving. The maximum for the latter is now and was at the time of this offence fourteen years. The sentence was bound to reflect the fact that he had pleaded guilty to a more serious offence, for which the penalty was at large. So far as his guilty plea is concerned, on the facts of this case, it seems to us that a guilty plea was inevitable.[15]We agree with the observations made by the judge in the passages of the sentencing remarks to which we have referred. As we have just said, this was a severe sentence, but, in the exceptional circumstances of this case, we have concluded that it is not one with which we should interfere. This application for leave to appeal against the sentence of imprisonment must be refused.[16]There remains an application for leave to appeal against the period of disqualification of twelve years, upon which we have not as yet heard Mr Aylott. We are minded to be to some extent sympathetic in relation to that matter but we will now hear Mr Aylott on it. (Submissions then followed.)

LORD JUSTICE GAGE: So far as the period of disqualification is concerned, we give leave to appeal against that. We quash the disqualification period of twelve years and for it substitute a period of disqualification of eight years. The requirement to take an extended test will remain.

[18]MR AYLOTT: To the extent the appeal has been successful, albeit on a limited basis, are your Lordships at all minded to grant legal aid for the purposes of today? (The Bench conferred.)

LORD JUSTICE GAGE: We have been assisted by your submissions. We will make a representation order for counsel.

[20]MR AYLOTT: I am very grateful.

LORD JUSTICE GAGE: Thank you very much, Mr Aylott.