Attorney General's Reference No. 157 OF 2004 [2005] EWCA Crim 537

Case No 04/7262/A6[2005] EWCA Crim 537
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 4 March 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE NEWMAN
HIS HONOUR JUDGE TILLING
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 157 OF 2004
(RYAN KEITH GREEN)
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MR MARK ELLISON appeared on behalf of the ATTORNEY GENERAL
MR THOMAS BRADNOCK appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE LATHAM:

[1]In this case the Attorney General asks leave to refer to this court under section 36 of the Criminal Justice Act 1988 a sentence of a community punishment order of 240 hours together with a curfew order imposed on this offender for the offence of causing death by careless driving. The sentence was imposed on 29th November 2004.[2]The offender, who is 22 years of age, had pleaded guilty at a significantly earlier stage to causing death by careless driving, albeit that had not been his stance when he was first interviewed after the accident by the police.[3]The circumstances of the offence were that the offender, who comes from St Hélèna, went drinking with the victim, who was his best friend, Robert Cowie, also from St Hélèna, during the evening of 12th February 2004. They had both consumed several pints of lager. They walked to the offender's home, where his friend suggested that the offender should take them both for a drive whilst they discussed certain personal problems which the friend had. The offender was ultimately persuaded to take the car and drive, albeit he must have appreciated that he was significantly affected by alcohol.[4]In the course of the drive the offender was driving along the A30 at a speed which was estimated by the driver of one oncoming vehicle of about 60 mph and for whatever reason swerved to the offside of the road where, as a result, there was a nearside-to-nearside collision with an oncoming car. The friend was killed. The driver of the oncoming car was fortunately only injured.[5]When the appellant gave a sample of blood it proved, on analysis, to contain approximately two-and-a-half times the permitted level of alcohol.[6]In the first instance he gave no explanation for what had happened, but he later indicated that he believed that the other car had come on to his side of the road. However ultimately, as is apparent from his plea, he accepted full responsibility for the death of his friend and has undoubtedly been devastated by that fact and has shown very real remorse.[7]In those circumstances the Attorney General has submitted to this court that the community penalty sentence was unduly lenient.[8]We have been taken to the aggravating and mitigating features as submitted by Mr Ellison on the Attorney's behalf. As he points out, this was an unnecessary journey, at a time when the appellant must have known that he was affected by drink. He was more than twice the limit and he at the time was driving uninsured. The mitigating features are that he pleaded guilty at an early stage; he has shown real remorse; he is relatively young and is of good character.[9]We have also, in considering the appropriateness of the sentence, taken into account the fact that the family of the deceased have not indicated any desire for any form of revenge. The position is that his mother is finding it hard to cope with the death of her son but believes that it was an accident and apportions no blame on to the offender. She says that she has no hard feelings towards him and there would be no problem between them if he returned to the island.[10]Mr Ellison has taken us to the judgment of the Lord Chief Justice in R v Cooksley and others [2004] 1 Cr App R (S) 1 at page 1 and submits to us, this being a case where the maximum sentence available at the time was one of ten years' imprisonment, that the facts in the present case put it into what was described in Cooksley as the intermediate category: that is one in respect of which the appropriate sentence should be one of two to three years. Accordingly he submits that this is not a case where a community penalty was appropriate. In particular he submits that the case of Stephen Scotney, that is Attorney-General's Reference No 77 of 2002 [2003] 1 Cr App R (S) 111 at page 564, is not on all fours with this case. That was the case which the sentencing judge in the present case considered provided him with appropriate guidance in determining how to approach the difficult sentencing exercise. In Scotney it was again a case where a young man had taken a car out under persuasion when he was unfit through drink. It was also a case where there was no insurance and the trial judge imposed a non-custodial sentence. This court in its judgment concluded, having in particular regard to the fact that the evidence from the deceased's family was to the effect that to send the appellant to prison would be devastating to them, said as follows at page 572:
"The sentence here was a lenient sentence. It was a merciful sentence. It was a case, in our judgment, in which a degree of mercy and leniency was well justified. It was not unduly lenient. We shall not interfere with what, in our view, was a properly exercised sentencing judgment."
[11]Having considered with care the submissions of counsel and the judgments of this court in both those cases the first thing that we would seek to say is that we do not accept that this case clearly falls into the intermediate category which would justify a sentence of two to three years' imprisonment. However, we do consider that the proper sentence in this case would have been one of eighteen months' imprisonment. The case of Scotney, where the amount of alcohol in question was only one-and-a-half times the limit, coupled with the very special mitigating circumstances in relation to the deceased's family, in not precisely analogous of this case. It follows that we consider that the sentence was indeed not only lenient, as in Scotney, but unduly lenient, and accordingly we give leave to the Attorney General to refer the sentence.[12]There are, however, factors in this case which make it difficult for us, it seems to us, to consider that it would in any way be appropriate to substitute a sentence of imprisonment on this offender today. The position is that he has completed 178 hours of his community penalty. In other words, he is well over two-thirds of the way through. We would in any event have had to consider with care the extent to which the sentence should be discounted for double jeopardy bearing in mind that this is a case where the offender had been given a non-custodial sentence in the first instance.[13]Bearing in mind all those matters, we do not consider that it would be appropriate, despite our conclusion in principle as to the sentence, to interfere with it. Accordingly, as we have said, although we give leave to refer, we do not intend to make any change to the sentence that was imposed.