Murray, R. v [2007] EWCA Crim 2476
[1]"It is right to observe, in this case, that there are two features which, in my judgment, pursuant to the guidance in R v Richardson make this a high culpability case. The first is the fact that this defendant had consumed alcohol. It is right to note that, on the most favourable reading to this defendant, he was almost two and a half times over the legal limit. Consumption of alcohol, in this case, whatever the preceding circumstances was deliberate. It undermines the ability of any driver to apply his full concentration to the road. The more drink that is taken, the more disastrous the consequences can be."Then he went on:
[2]"The next matter that I must deal with is the issue and nature of the driving. It is clear in the way that the Crown has opened this case to me that there was undoubted lane weaving. But I must be careful not to double count. At its root, it seems to me in causing that to have occurred would have been the amount of alcohol consumed by this defendant. But weave he did; that was seen by a number of witnesses, and it seems to me, looking at it most favourably to the defendant, the period which I am dealing with here, albeit that it was not continuous, was that this course would have occurred through that which the witnesses observed over a period of some 6 minutes, if one looks at their global recollection in their witness statements.[3]But the most serious high culpability factor in this case must be that multiple deaths have occurred."[4]"[It] is not arguable. The degree of weaving was less important than its cause, viz the amount of blood alcohol." In short, the single judge took the same stance as the sentencing judge, that the lane weaving was something that was in effect caused by and subsumed into the amount of alcohol that had been consumed. We are bound to say that, for our part, it is perhaps a pity that a Newton hearing was not held to determine the scale of the erratic driving that was perceived by various witnesses, some of whom described it as taking place over a prolonged period. If that course had been followed, and if the outcome had been that the court had been satisfied beyond reasonable doubt that this erratic driving had taken place over a substantial period of time, we cannot help feeling that that might have had, or at least should have had, a material impact on the sentence.[5]"It is right to observe, in this case, that there are two features which, in my judgment, pursuant to the guidance in R v Richardson make this a high culpability case." That, it seems to us, is a term of art. The decision in Cooksley, which was later reviewed in Richardson, which identifies the various aggravating and mitigating factors that may arise in cases of this kind, went on to set out what were described as four starting points for a sentencing judge: first, no aggravating circumstances at all, 12 to 18 months; intermediate culpability, two to three years; higher culpability years, four or five years; and most serious culpability, six years or over.[6]"There is, however, a danger in relation to the higher starting points of the sentencer, if he is not careful, double accounting. The sentencer must be careful not to use the same aggravating factors to place the sentence in a higher category and then add to it because of the very same aggravating features." These cases are always very difficult for a trial judge, and we are bound to say that perhaps the appellant was fortunate in not having to face up to a Newton hearing, but we must approach this case as the judge has found it, and he has found in terms that there were two aggravating features, consumption of alcohol and the fact of multiple death, which in his opinion put this case within the third of the four categories to which we have referred; a category which puts the starting point, following the adjustment in Richardson at four and a half to seven years. Again, this is but a starting point, and indeed the aggravating factors which are referred to in the judgment are not a code against which an assessment of the circumstances is to be tested. Each case must be viewed on its own facts and the starting point may in the event lead to a very different finishing point. Nonetheless, we do think that the learned judge ought to have started from four and a half to seven years following a trial. He might have been justified in going above that starting point to reflect, in particular, the extent to which this driver was over the legal limit. This was not a casual drink or two; indeed it was not, we suspect, the mere disposal of half a dozen cans of beer 12 hours earlier. There is really no explanation that was furnished to the judge as to how this man was two and a half times over the limit at 10.30 in the morning. Further it was also right that some account should be taken of the lead-up to this accident in which the lorry was seen to drive erratically, and the outcome of course has been the death not of one person, but of four persons, two parents and two very young children. We have to say that we do not have a great deal of sympathy with the appellant in the predicament that he faces, but we feel compelled by the approach of the learned trial judge, in indicating, having only just read Richardson, that he placed this case in the high culpability bracket. In consequence we feel that it would not in that context be possible to support a sentence after a trial of something in the region of nine years. In our judgment, the judge could certainly go beyond the starting bracket, but allowing for the guilty plea and indeed the personal mitigating circumstances of this particular appellant, in our judgment this sentence of six years was excessive and we reduce it to four and a half years. To that extent, this appeal is allowed. MR ALCOCK: Could I raise please one matter that was referred to in the sentencing remarks. This court, in reflecting the view taken by the judge, placed the case in the higher sentencing bracket, so category 3, stating that the period of custody as a result of that bracket is four to five years. In Richardson that bracket was changed at paragraph 19 from four and a half to seven years, and I refer to that now because that was part and parcel of the remarks which your Lordship made. MR JUSTICE DAVID STEEL: Yes, we will adjust the transcript to reflect that. LADY JUSTICE HALLETT: Thank you, Mr Alcock. Mr Christie, I would, if I may, put a shot across your bows, as the bows of everybody else in court. Counsel were asked, as I understand it, to confirm a time estimate. I appreciate you did not know how long we would take to consider this difficult case, but it was always going to be a difficult case. 30 minutes was the time estimate, including judgment, and it is one of my pet grievances that people do not remember it is to include judgment. MR CHRISTIE: My Lady, noted. May I delay matters very briefly further just in relation to the order that has been granted in relation to legal aid in this case. Your Ladyship will have seen the basis upon which it has been granted, namely for junior alone rather than for leader. I was instructed in this case by an insurance company operating in the free marketplace and took the view that leading counsel should be instructed for it. The learned single judge may not have known I was not instructed without any junior, I know not, but he says, Mr Christie may attend if he wishes, but otherwise it can be returned to other junior counsel. The position obviously, in my respectful submission, is that it would be unthinkable for me not to do the case in all the circumstances, and of course this is a matter that has, as you have recognised, some considerable sensitivity given the facts of it. Also, if I had returned it to somebody else I anticipate that they would, with all the papers, have taken rather a longer time to deal with it, so I wonder whether the court would review that and allow for leading counsel to attend today. LADY JUSTICE HALLETT: Mr Christie, my Lord was showing his Commercial Court background by asking what are the terms of the policy that allow the insurers not to pay for an appeal, but I assume you have satisfied yourselves -- MR CHRISTIE: We investigated that matter very thoroughly, but they are adamant and obdurate. LADY JUSTICE HALLETT: Mr Christie, if the insurance policy does not cover your services, we have no doubt that Mr Murray was entitled to the services of counsel he had if you were available, which you were, and therefore the representation order will cover your representation of him. MR CHRISTIE: I am very much obliged.