Wilson, R v [2010] EWCA Crim 991

Case No 200906305 A2[2010] EWCA Crim 991
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 25th March 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE JACK
RECORDER OF REDBRIDGE
HIS HONOUR JUDGE RADFORD
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
COLLETTE WILSON
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Miss A Foshuene appeared for Appellant
J U D G M E N T
[1]MR JUSTICE JACK: On Tuesday 26th August 2008, at about 1.30 in the morning, a terrifying and tragic accident occurred. A minibus carrying members of a steel band which had been playing at the Notting Hill Carnival left the road at Vauxhall Cross in South London, mounted the pavement and carried on for about 60 metres until it came to rest against a park wall. It had meanwhile hit five pedestrians. Two died of their injuries. One other sustained serious injuries to her leg, as well as less serious injuries to her face. As a result the leg is 1 centimetre shorter than the other and she walks with a prosthesis. A man was dragged beneath the bus and suffered a minor skull fracture. The first man to be struck suffered minor injuries. The accident occurred because the driver, Collette Wilson, the appellant on this appeal against sentence, had fallen asleep at the wheel.[2]On 9th November 2009 she was sentenced to five years' imprisonment on two counts of causing death by dangerous driving and to one year on one count of dangerous driving. All sentences were concurrent. The count of dangerous driving was no doubt included to reflect the non-fatal injuries to the three other pedestrians. The appeal has the leave of the single judge.[3]The circumstances leading to the accident were as follows. The appellant, now aged 33, was the treasurer of the Southside Symphonies steel band. She had played with them since she was eight. She assisted with the band's organisation and it was frequently she who drove the van to and from engagements in hired minibuses, as she was doing on this occasion.[4]On Saturday 23rd August the band had taken part in the National Steel Band competition in Hyde Park. The appellant had risen at 7 am and had got to bed at 2 am. The next day, the Sunday, the band played at the Notting Hill Carnival. Again she rose at 7 am and she got to bed at about 2.30 am, before rising again at 7 am. So over these two nights she had about nine or nine and a half hours' sleep. On Monday 25th August the band again played at the Carnival, and it was on their return that the accident happened. They had left at about 1.30 am. There had been a problem with a flat tyre and some public disorder and also congested traffic in the vicinity of the carnival.[5]The appellant reached Vauxhall Cross without incident and negotiated the roundabout. She recalled seeing the word "Brixton" written on the filter lane to South Lambeth Road and after that remembered no more. That was 160 metres from the point where the bus pointed the pavement. The bus entered South Lambeth Road but failed to follow the right hand curve of the road and instead took a straight course, mounting the pavement as we have described. All the passengers in the bus, including adults, were asleep at the time. Fortunately, none of them were injured. After the bus had halted the appellant got out, asked that the emergency services be called and then sat down sobbing traumatically.[6]Evidence was available to the Crown Court from Professor Horn, an expert on sleep. He concluded that the appellant had fallen asleep through exhaustion. It was his view that she must have known that she was losing consciousness but fought against it. He said that people did not recall sleepiness before falling asleep. His evidence was that, prior to falling asleep, drivers are always aware that they are feeling sleepy, that there is always a feeling of profound sleepiness and they reach a point where they are fighting sleep. He said that falling asleep culminates in a series of micro-sleeps. A micro-sleep is the slow closure of the eyelids followed by a slow opening lasting 5 to 7 seconds in total. The micro-sleeps increase as the sleep level increases.[7]The prosecution commented that it was comparatively rare for a driver to fall asleep in an urban situation with the stimulae that that provides, rather than, for example, on a motorway, and that this was an indication of the appellant's level of tiredness.[8]The appellant is now 33. She has a long-term partner by whom she has a son, now aged 8, and she had a second son in February of this year. She worked as a team leader in the cash department of Tesco. She could not afford to continue her studies after leaving school, but had obtained a degree in social work as a mature student. The judge had letters speaking of her excellent qualities. She is somebody who helps others and is looked up to. She was the longest serving member of the band.[9]The judge also had statements from the families of the two women who had died, one aged 35 and the other aged 22. The letters spoke of their qualities and said how bereft the deaths had left them. They make harrowing reading.[10]In passing sentence, the judge stated that the appellant had driven when she was tired to the point of exhaustion, that she had been awake for 19 and a half hours when she began the 45 minute journey, and that she was responsible for the safety of the 15 others in the minibus. He said that the appellant must have known that she was too tired to drive, but decided to take the obvious risk to get her passengers home. He referred to Professor Horn's evidence and that the appellant would have had warnings of impending sleep. The appellant could, he said, have stopped for a break or refreshment.

The judge found the following aggravating features:

[11](1) the two deaths;(2) that other people were injured;(3) the appellant's responsibility for those she was driving home;(4) the appellant knew that she was exhausted and should not be driving;(5) the appellant took no steps to avoid falling asleep.

The judge found mitigating features in:

[12](1) the appellant's good character and hitherto unblemished driving record;(2) the references that the judge had read about the appellant;(3) her plea of guilty;(4) her personal background and her having care of her young son.[13]During mitigation by the solicitor advocate on the appellant's behalf, the judge had stated that although the appellant had not entered her pleas at the first opportunity, in circumstances we need not relate, he would give the appellant full credit. The judge's sentence of five years therefore suggests that he took a starting point of sentence following trial of seven and a half years.[14]In cases such as this there is no sentence that can begin to redress the consequences of the driving. It is the duty of the sentencing court, and of this court in reviewing sentence, to fix upon the sentence appropriate to the facts of the case in accordance with the law. The approach is to be found in the sentencing guideline on causing death by dangerous driving, to which the court is required to have regard by section 172 of the Criminal Justice Act 2003. Paragraph 3 in the introduction provides, in part, as follows:
"Because the principal harm done by these offences (the death of a person) is an element of the offence, the fact that primarily determines the starting point for sentence is the culpability of the offender. Accordingly, for all offences other than causing death by driving: unlicensed, disqualified or uninsured drivers, the central feature should be an evaluation of the quality of the driving involved and the degree of danger that it foreseeably created. These guidelines draw a distinction between those factors of an offence that are intrinsic to the quality of driving (referred to as determinants of seriousness) and those which, while they aggregate the offence, are not."
[15]The guideline provides three levels of seriousness. Level 1 is the most serious. It encompasses driving that involved a deliberate decision to ignore, or a flagrant disregard for, the rules of the road and an apparent disregard for the great danger caused to others. The starting point is eight years, with a range of seven to 14 years. Level 2 is driving that created a substantial risk of danger. There the starting point is five years and the range four to seven years. Level 3 is described as driving that created a significant risk of danger. The starting point is there three years and the range two to five years. The guideline further states characteristics of conduct which are likely to fall within level 3. Those include driving while knowingly deprived of sleep or rest.[16]As to a case where there is more than one death, the guideline states, in paragraphs 19, 20 and 21, that the seriousness will be greater in most cases where more than one person is killed since it is inevitable that the degree of harm will be greater. Paragraph 21 states:
"Where more than one person is killed, that will aggravate the seriousness of the offence because of the increase in harm. Where the number of people killed is high and that was reasonably foreseeable, the number of deaths is likely to provide sufficient justification for moving an offence into the next highest sentencing band."
[17]It was submitted to the judge that this was a Level 3 case with aggravating features. We consider that the fact of the two deaths, with three others injured, one permanently, takes it into Level 2. It is also submitted that the judge was wrong to treat it as an aggravating feature that the appellant knew that she was exhausted and should not be driving. That, it is submitted, is what made the driving dangerous, and so in effect it is double counting to treat it as an aggravating feature.[18]We consider that it can increase the seriousness of the offence that it was so obvious to a defendant that they were in no fit state to drive. We are not satisfied that the appellant was here in that situation when she set off. We do not think that it is shown that she made a conscious decision to drive having positively realised that she was unfit. She should, however, have realised as she drove and sleep came nearer, that she must stop.[19]We have said sufficient of the aggravating features in this case. We have also to take account of the mitigating features, which are the appellant's positive good character, including her unblemished driving record over a substantial number of years. We have also to take into account her personal situation and the situation as to her children. Her son has been badly affected by his mother being in prison and there have been some behavioural problems. The new baby is with his mother at the moment in Holloway. Holloway has facilities to keep a mother and baby together until the baby is nine months old. There are other women's prisons where there are facilities to keep mother and baby together until 18 months. It is urged on us therefore that a three year sentence would avoid separating a mother and her new child. We are told also that although family members and friends would very much like to be able to assist if they could with caring for the new baby if it became necessary, there is nobody who has actually felt able to step forward to do so.[20]We have concluded that in all the circumstances relating to the appellant's driving and the mitigation arising from her good character, a sentence in the order of three and a half years would be appropriate, but, taking account of the situation of the new baby, which we regard as of considerable importance, we think the right course is to pass a sentence of three years. We have concluded that the judge's sentence was in any event substantially too high. He did not, however, have to consider the position of the new child. The sentences of five years on the two counts of causing death by danger driving will be set aside and the appeal will be allowed accordingly. The sentence on the count of dangerous driving will remain unchanged.