Robinson, R v [2009] EWCA Crim 450

Case No 200804040/A8[2009] EWCA Crim 450
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 9th February 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE CALVERT SMITH
HIS HONOUR JUDGE PAGET QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
ROSS ROBINSON
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr C Stables appeared for Applicant
J U D G M E N T
[1]HIS HONOUR JUDGE PAGET: On 23rd June 2008 in the Crown Court at Liverpool before His Honour Judge Globe, the applicant pleaded guilty to causing death by dangerous driving and was sentenced to 9 years' imprisonment. The judge ordered that 35 days already spent in custody should count towards sentence. The applicant was disqualified from driving for 10 years and until he passed an extended driving test. He was represented in the Crown Court, as he has been before us today by Mr Stables. He now renews his application for leave to appeal against sentence following refusal by the single judge.[2]The tragic facts of this case were these. At about 9.45 pm on 16th May 2008 Hannah Stanley was walking along Hillside Road in Huyton, Merseyside. She was pushing a pram with a baby in it and also with her were her daughter and her daughter's 6-year-old friend, Demi. At the junction of Hillside Road and Astley Road a van driven by the applicant mounted the kerb and hit Demi, killing her instantly. The other child, Mrs Stanley's child, was thrown to the ground but mercifully suffered cuts to her face and nothing worse. The applicant stopped the van a few metres away but then fled from the scene, first on foot and later in a taxi to his home address.[3]Earlier that day the applicant had finished work at about 5 o'clock and had driven off in the van that he was entitled to drive but which belonged to his employer. That van was later seen parked in the car park of the Derby Arms public house and it was there for just short of 15 minutes. Later that evening the same van was seen in the car park of The Fusilier public house. At about 9.40 pm the applicant left The Fusilier and got into the van. He then reversed out of the car park at speed and hit a gatepost. He examined the damage but got back into the van and drove off. There then followed a period of dangerous driving which ended with the death of 6-year-old Demi. That dangerous driving included the applicant overtaking a vehicle while it was already overtaking another vehicle; he drove at between 50 and 60 miles per hour; he drove down the wrong side of a dual carriageway during the overtaking manoeuvre before crossing the central reservation again onto the correct side of the dual carriageway in a cloud of dust. He then drove through a red light at the junction of the Manchester Road, at about 60 miles per hour. This was observed by two police officers, who turned their car around and gave chase but lost sight of the applicant. Having driven through that red light he drove through another red light and a taxi-driver who witnessed that described the driving as "erratic" and "mad". Due to the speed and nature of the driving, at a right turn into Astley Road, the applicant lost control of the van, cut the corner, mounted the pavement and struck Demi. As it hit the pavement the van's wheels were observed to have left the ground.[4]Having fled from the scene the police found the applicant's mobile telephone in the van and as a result he was arrested at 4.45 the following morning, some 7 hours after the accident at his home address. When arrested he said: "Is she dead?" When asked whether he had drunk alcohol since the offence, he said "no". He was given a breath test which gave readings that put him over the legal limit, even though that was 7 hours after the offence. He admitted to drinking 4 pints of lager prior to the offence. He was asked whether he had consumed alcohol since the offence, not once but twice, and said "no". That caused a forensic scientist to make a back calculation of the alcohol intake which indicated that the applicant had consumed more than 4 pints of lager prior to the offence or, alternatively, had consumed alcohol nearer to the time of the test and after the accident, which of course, he had denied. The accident report concluded that the van had cornered at too high a speed and there was no evidence of any sort of emergency or heavy braking. When interviewed the applicant made no comment.[5]We have seen and read most moving victim personal statements from Demi's parents, family and friends. They describe the impact that the loss of the child has had on all their lives and how they struggle to cope.[6]In passing sentence the learned judge saidthat the devastation caused by the death of Demi Royle to her family was immense. The victim personal statements were heart rending. No sentence could reconcile the family to their loss. On 16th May the applicant had 1 pint of beer in the Derby Arms public house and his van was next seen at The Fusilier public house. The court was satisfied that between 5.30 pm and 9.30 pm the applicant had been drinking. When he left The Fusilier, he reversed into a gatepost but that early warning had not deterred him from driving and he drove away. His driving from then until the collision had been appalling and it was compounded by his observation to the probation officer that he was unaware that he was driving so badly. That was further evidence of the extent of his inebriation. He drove at between 50 to 60 miles per hour and overtook on the wrong side of the road. He also travelled at excessive speed down the wrong side of a dual carriageway. The applicant also drove through red traffic lights at speed. His driving had been described as erratic and mad. When he hit the kerb in the residential area where the accident occurred he lost control. It was extremely fortunate that he had not killed more people in the group on the pavement. There could not have been a more clear cut case of prolonged persistent and deliberate bad driving. It was aggressive and at excessive speed. There was also the aggravating feature of driving with excess alcohol. The applicant's actions were further aggravated when he ran from the scene. It was noted that when arrested he had denied that he had drunk anything after the accident and his breath test showed him to be over the limit. He admitted that he had drunk 4 pints of lager. The court rejected the applicant's proposition in the pre-sentence report that he had drunk 4 pints before the accident and two bottles at home afterwards. The toxicologist had concluded that he had consumed considerably more than 4 pints, or had consumed alcohol nearer to the time of the test. The latter explanation was rejected. The court was satisfied that he had consumed considerably more than 4 pints before he made the journey. That made the journey highly dangerous. The case was well within the top category of one involving an extremely high level of culpability. It was noted that the applicant had previous convictions for motor related crime and a conviction for being drunk and disorderly. His only real mitigation was his plea of guilty. Maximum credit had been indicated for the early plea, but the applicant had contested the facts and sought to minimise his culpability regarding the amount of alcohol he had consumed. Credit was given for the plea, but in the circumstance that was limited to 25 per cent. The sentence was 9 years' imprisonment.[7]The applicant was born on 29th October 1983, so that he is now 25 years old. He had seven previous court appearances for 12 offences between January 1999 and November 2002. These included three offences of taking a vehicle without consent and that must mean driving uninsured and one offence of being drunk and disorderly.[8]In the pre-sentence report the applicant accepted full responsibility but his account differed from that of the witnesses in terms of how fast he was travelling and how much he mounted the pavement. He said on the evening of the incident he had drunk more than he intended. After 4 pints of beer he set off home. He accepted that he knew that he was over the drink drive limit. The applicant denied speeding and deliberately going through a red light. He accepted that he drove over the pavement with at least two wheels and lost control of the vehicle. Afterwards he heard shouting and screaming and panicked and so ran from the scene. While waiting for the police to arrive at his home the applicant said he drank two bottles of beer.[9]The applicant lived with his partner and they had three children. He had served as a soldier and afterwards worked as a self-employed landscaper and builder. His consumption of 4 pints of lager must have affected his ability to drive and in that sense his use of alcohol was problematic. He was clearly upset about causing the victim's death and was fully aware of the terrible consequences of his actions. He accepted that he had to be appropriately punished.[10]There were before the judge, as there are before us, a number of character references which we have looked at. In advancing the appeal before us, Mr Stables makes two points: firstly, that the learned judge took too high a starting point, and secondly, that the judge did not reduce sufficiently the sentence for the plea of guilty.[11]Dealing with the length of sentence, Mr Stables accepts that this was a case which must fall into the highest category identified in the guideline case of R v Richardson [2007] 2 Cr App R(S) 36, so that the range of sentence falls somewhere between seven and 14 years. In our judgment, it was such a bad case that the trial judge was justified in taking a starting point of 12 years had this been a contested case.[12]We turn to the second ground, namely that insufficient reduction was made for the plea of guilty. On 2nd June there was a hearing at which the trial judge said in terms that he would give the applicant maximum credit if he pleaded guilty at the trial in three weeks' time:
"...I am entirely satisfied that at this point in the proceedings it would be correct to give him maximum credit for indicating the guilty plea. If that is tendered in three weeks' time, as is indicated today, I will give him the maximum credit that the Sentencing Guidelines Council guidelines suggest he should receive."
That was said to Mr Stables. The learned

judge then addressed the applicant directly and said:

"The court has noted your indication of a guilty plea. I will consider the full facts, and I will give you the maximum credit I have just indicated when the matter comes before me in three weeks' time. I will have all the papers then, as will your counsel, and I will consider what the appropriate sentence will be. I need to repeat to you, it is an extremely serious offence - I am sure you are aware of that - and there will have to be a lengthy period of custody, but you will be given credit for your guilty plea."
[13]At the hearing in three weeks' time there was before the court the pre-sentence report which we have just summarised. That report was signed on 20th June and in that report, as we have just recited, the applicant told the writer that he had had a drink after the incident and before his arrest. At the time of his arrest, of course, as again we have mentioned, he had twice said that he had had nothing to drink after the accident.[14]In the Crown's opening it had been made clear what the toxicologist's opinion was and that led the learned judge to query at the sentence hearing what was said in the pre-sentence report. We take from Mr Stables' own advice on appeal a recital of what actually happened at that hearing, there being no transcript before us. The learned judge was unable to accept what was said in the pre-sentence report as the basis for sentence and referred to the toxicology evidence. Following submissions the learned judge indicated that he would, if the defence wished, hear evidence from the defendant on the issue of post incident consumption and whilst remaining on the Bench allowed some time for instructions to be taken. The defendant's instructions were taken, thereafter it was indicated to the learned judge that the defence did not wish to call evidence or have a Newton hearing. It was indicated that the defendant appreciated and accepted that he would be sentenced on the Crown's case and specifically on the basis that he had consumed more alcohol than the 4 pints admitted before the collision and on the basis that there had not been a post incident consumption of drink.[15]When passing sentence what the learned

judge actually said in relation to mitigation was this:

"In terms of mitigation I have noted the references submitted on your behalf, all of which do give you credit. However, the real mitigation relates to your guilty plea. I said to you when you indicated your early guilty plea that I would give you maximum credit for it. It was implicit in what I said that that was on the basis that there was no contest as to the facts. As it has turned out, there has been a contest as to the facts, you have sought to minimise your culpability in relation to the amount of alcohol that you drank and I have rejected that account. That attempt in my view was a clear attempt to minimise your culpability to a significant extent and it has failed. You must be given significant credit for your guilty plea but I regret that in the circumstances of your plea before me today, I cannot give you maximum credit. I limit the credit to 25 per cent."
[16]Mr Stables submits that the learned judge should have given the applicant full credit nevertheless, because although the applicant had prevaricated and maintained, as late as 20th June to the writer of the pre-sentence report that he had had some drink after the accident, he did not maintain that account and was sentenced on the basis that he had not had anything to drink after the accident.[17]We can understand the trial judge's remarks just quoted and while we do not say that a judge cannot take account of a change of story advanced in a pre-sentence report, and although very far from saying that he was not entitled to take the view that he did, nevertheless, we have to look at what was the correct sentence in all the circumstances in this case, bearing in mind that the change of account was not persisted with and was expressly abandoned and that the applicant had been promised full credit if he pleaded guilty.[18]In those circumstances it seems to us that full credit should have been given. We therefore give leave to appeal. We uphold the starting point of 12 years but we give full credit to the applicant for his plea by reducing the sentence from one of 9 years to one of 8 years' imprisonment. To that limited extent the appeal is allowed.

LORD JUSTICE RIX: Permission is granted and the appeal is allowed to that limited extent. The appellant is not here so in the ordinary way he has seven days to apply if he wishes to take the matter any further.

[20]MR STABLES: I will ensure that the decision is conveyed and that he understands the position, but I cannot imagine the case will go any further.[21]May I just raise this final matter? I do hope your Lordships will not think me impertinent to raise it at this stage. Following the refusal of leave by the single judge the defendant's family clubbed together in order to pay privately for today. Given that his application and then the appeal has to a limited extent succeeded, I think I am right in saying that should your Lordships be minded your Lordships have power retrospectively to grant a representation order for today's hearing. I do not know whether your Lordships may be content to do that?

LORD JUSTICE RIX: Yes, in the ordinary way it would follow that we would grant a representation order. Thank you Mr Stables.