Attorney General Reference No 111 of 2006 [2006] EWCA Crim 3269

Case No 200605163/A5[2006] EWCA Crim 3269
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 5th December 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE BEAN
SIR RICHARD CURTIS
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY -GENERAL's REFERENCE NO 111 OF 2006
(GHULAM HUSSAIN)
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MR M ELLISON appeared on behalf of the ATTORNEY GENERAL
MR S LINEHAN QC appeared on behalf of the OFFENDER
JUDGMENT

LORD JUSTICE KEENE:

This

[1]is an application, under section 36 of the Criminal Justice Act 1988, by Her Majesty's 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]This offender pleaded guilty to manslaughter on 14th August 2006 in the Crown Court at Wolverhampton on an indictment charging him with murder. He was sentenced on 18th September 2006 by His Honour Judge Chapman to 3 years' imprisonment and was disqualified from driving for 5 years and ordered to take an extended driving test.[3]The offender was at the time a 44 -year old taxi driver. The offence arose out of events just after 2.00 am on Sunday 26th February 2006, in West Bromwich. Around that time the victim, a 17 -year -old student called Scott Poll, was with two friends of about the same age, walking along a road called Hollyhedge Road within the built -up area. They had been enjoying a Saturday evening out and had undoubtedly had some drinks. By 2.00 am they were trying to find a taxi. They were passed by the offender driving his black cab. As he passed the three young men, Scott Poll attempted, unsuccessfully, to flag him down, and then shouted "Paki" at him, a shout which it appears the offender did not hear. The offender did a U -turn a little way up the road and travelled back the way he had come. As he did so the group crossed the road so as to be on the same side as the taxi but Scott Poll remained in the carriageway while his friends stood on the footway. As the offender approached Scott Poll, he slowed his vehicle down to a walking pace. There was evidence that at the same time the victim's friends began shouting. The offender then steered to go round Scott Poll, who moved in the same direction, with the result that he remained in front of the taxi. Scott Poll also put his hands onto the bonnet. The offender continued to drive slowly forwards and Scott Poll was moving backwards as he did so. Scott Poll then lost his footing and fell under the front of the taxi.[4]The offender, however, did not stop when Scott Poll went under the front of the vehicle, but instead accelerated away. It is clear, as the judge found, that he realised immediately after the initial collision that something was very wrong. The judge said that he must have realised that the victim was under the taxi because he must have felt the resistance in attempting to steer the taxi; he admitted that the steering felt wrong and heavy - that admission was made in interview - and because of the screams and shouts from the victim. Those screams were sufficiently loud to be audible to other people who were asleep in their beds in nearby properties.[5]Scott Poll became trapped under the front of the vehicle and he was dragged along screaming, including, for part of the time, being driven onto the pavement and over road humps. The offender carried on in this fashion for more than a mile at normal road speeds, despite being aware, as I have indicated, that he was dragging someone beneath his cab, until the body of Scott Poll eventually became dislodged at a roundabout and was left in the road. The offender then continued driving on.[6]The police were alerted and they found the body of Scott Poll. He had died from multiple injuries caused by being dragged against the ground as the vehicle travelled along. The next day the offender had the underside of his taxi steam cleaned. He eventually went to police on Wednesday, 1st March, admitting he had been the driver but initially denying knowing that he had hit anyone. In his second interview, he admitted that when he drove off, he had felt someone under his car for some distance but that he had not stopped out of panic, thinking that he had killed someone.[7]In his basis of plea it was said that the deceased's companions had began shouting and that as a result of that the offender drove off in a blind panic.[8]On the eve of the trial, 11th August 2006, the offender offered a plea of guilty to manslaughter on the basis of gross negligence, the negligence being that he had acted as he had done from the moment Scott Poll had gone under the front of the taxi. Initially the prosecution declined to accept that plea, and the trial began. However, on the second day the prosecution decided to accept the plea and the defendant then entered formally a plea of guilty to manslaughter.[9]The judge indicated in his sentencing remarks that he would allow a 25 per cent reduction in sentence for the plea of guilty. He emphasised that the offender must have seen Mr Poll in the carriageway and, as I have indicated, must have realised that he had fallen beneath the cab.[10]The judge did not suggest that the offender deliberately drove into the victim, but he stressed that the offender had then driven on, knowing that Scott Poll was trapped beneath the vehicle. The judge, at page 26 of his sentencing remarks said that:
"...the further you drove, the longer you continued driving knowing that he was trapped beneath you, the more culpable your actions became, so that after a time I am satisfied that you continued to drive with an utterly reckless disregard for the safety of Scott Poll, and that as a result he died."
[11]The Attorney -General, today, accepts that some mitigating features were present in this case. The offender was of previous good character. He was a married man with two children and effectively in employment. He pleaded guilty on the eve of trial and he acted as he did in fear and panic. Nonetheless, the Attorney -General emphasises what is undoubtedly the aggravating aspect of this case, namely that the offender drove on for over a mile over speed humps, dragging the victim's body, under the cab, with the result that Scott Poll died.[12]On behalf of the Attorney -General, Mr Ellison submits that a sentence of 3 years' imprisonment, in those circumstances, was unduly lenient, and failed to reflect adequately the gravity of this offence and the culpability of the offender. The culpability, submits Mr Ellison, began in deciding to continue moving forwards once the offender realised that Scott Poll had fallen under the cab, but it became more significant when the offender decided to continue to drive, knowing that Scott Poll was underneath the vehicle. It is that aspect, it is said, which makes the case a highly culpable one despite initial panic experienced by the offender. He must have been aware of the high risk of death to the young man who was beneath the cab. Mr Ellison also stresses the way in which the offender then tried to conceal what he had done by having the car cleaned and by later maintaining he had not known the victim was under the car.[13]On behalf of the offender, Mr Linehan QC emphasises the considerable experience of the sentencing judge. He contends that the judge understood the fear of violence that in this particular part of country can affect innocent people, particularly at 2 o'clock in the morning. It is contended that the judge gave proper weight to the factors in this case and did not err in the sentence which was passed. The situation, argues Mr Linehan, was not of the defendant's making. Late at night he acted out of complete panic and in fear. This was not a cool, rational decision, but one really which was an instantaneous reaction to the situation in which he found himself. He is, it is again emphasised, a man of positively good character and Mr Linehan also argues that the 25 per cent discount for the plea of guilty could well have been greater. Indeed, he submits it should have been the normal maximum one -third because this offender had not had leading counsel's advice until very shortly before the plea of guilty to manslaughter was offered. In addition, emphasis is laid upon the fact that the defendant was blameless up until the point when he drove on after the deceased had fallen under the taxi. This is not a case where there was a deliberate driving by the offender into the deceased.[14]We acknowledge that sentencing for offences of manslaughter by gross negligence is never an easy process. The guidance on causing death by dangerous driving in a case such as this may be of some relevance because the mitigating and aggravating factors identified in the guidelines for those cases may sometime apply; but their value tends to be somewhat limited, and such is the case here. It is to be borne in mind that death by dangerous driving has a maximum sentence, even now, of 14 years, whereas the maximum for manslaughter is life imprisonment. Manslaughter when using a vehicle can vary considerably in its characteristics, and various factors may be relevant in the individual case. Whether there was any animosity by the defendant towards the deceased will be relevant, as will whether the gross negligence was prolonged or shortlived and whether it took place in the context of some other offence, such as seeking to steal the vehicle. The consequences, such as the number of deaths, would also be relevant.[15]There are a number of decided cases concerned with sentencing for motor manslaughter in recent years, but none purport to be guideline cases. The facts vary hugely, but on a plea of guilty the sentences at first instance tend to suggest a bracket of between 4 and 7 years, with most tending to be in the upper half of that range (see the decisions in R v Sherwood (1995) 16 Cr App R(S) 513, R v Gault (1995) 16 Cr App R(S) 1013, Attorney -General's Reference 68 of 1995 [1996] 2 Cr App R(S) 358, R v Ripley (1997) 1 Cr App R(S) 19, and the Attorney -General's References No 16 of 1999 and 14 of 2001 [2000] 1 Cr App R(S) 524 and [2002] 1 Cr App R(S) 106).[16]In the present case one is faced with an offender of good character and mature years. We entirely accept that. He was not at the time engaged in any unlawful activity and he pleaded guilty. We are unpersuaded that the judge should have given any greater discount than the 25 per cent which he allowed here. This offender had ample opportunities to offer a plea to manslaughter at the various earlier hearings in this case. He was at that time advised by counsel. In all those circumstances a plea offered on the eve of trial merited no more than the 25 per cent discount which the judge allowed him.[17]Coming to the circumstances of the case, we accept that the offender here did panic. The consequences of his actions, however, were quite devastating, not only for his victim but also for the victim's family. A relatively young life was cut short by the offender's action.[18]Three factors seem to this Court to make this offence particularly serious within the sort of range to which we have referred. The first is that this offender put his own fear ahead of the life of another person. He may have acted instantaneously, as is submitted, but he was aware that Scott Poll had gone under the cab and was trapped there but, in that knowledge, he accelerated away, choosing to risk Mr Poll's life. As the judge said, this exhibited an utterly reckless disregard. Secondly, even though the offender may have driven initially because of fear or panic, he persisted in driving with his victim being dragged along under the vehicle for over a mile. That is a factor which weighs particularly heavily in this Court's assessment of the appropriate sentence. The offender must have been well away, from the victim's two friends long before that point was reached. Thirdly, even when the body of Scott Poll fell from beneath the cab, the offender did not stop and try to render any assistance in case assistance might have been of value at that stage. Instead, he simply drove on. All these actions show a wanton disregard for the life of another person.[19]We are satisfied that, even taking account of the late plea of guilty and the other mitigating factors in this case, the sentence of 3 years' imprisonment was unduly lenient. At first instance the sentence here, on this late plea, should have been one of 6 years' imprisonment. As this is a reference, we have to make allowance for what often is called double jeopardy, in other words for the fact that this man is being sentenced a second time for this offence.[20]For that reason, we quash the sentence of 3 years' imprisonment, but we put in its place a term of imprisonment of 5 years. The 12 days spent on remand will still count towards the serving of the sentence. The other parts of the sentence passed by the judge below stand as they were.

Cited in 3 later judgments