Hussain v R. [2012] EWCA Crim 188

[2012] EWCA Crim 188Case No 200803337A6IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
COULSON J.
T2006/8045
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/02/2012
Before
LORD JUSTICE HOOPERMR JUSTICE McCOMBEMR JUSTICE WILKIE
Between
MOHAMMED AFAHAN HUSSAINAppellantTHE CROWNRespondent
MR. D.I. CRIGMAN QC appeared for Appellant.MR. D. JONES appeared for Respondent.Hearing Hearing date: 26 th September 2008
Judgment
[1]On 26th September 2008 this Court allowed the appellant’s appeal against sentence to the extent of reducing his sentence for manslaughter from 8 years’ imprisonment to 6 years’ imprisonment. We now give the reasons for our decision.[2]The appellant was convicted on 28th April 2008 in the Crown Court at Birmingham before Mr Justice Coulson and a jury of manslaughter (Count 1). No verdict was taken on an alternative count of causing death by dangerous driving, and no evidence was offered on a third count of doing an act tending and intended to pervert the course of public justice.[3]On 23rd May 2008, the appellant was sentenced by the trial judge to 8 years’ imprisonment, less 232 days spent on remand. In addition, he was disqualified from driving for a period of 8 years and until an extended test is taken.[4]He was represented at trial and sentence by Mr Crigman Q.C., who also appeared on the appeal. Mr Jones appeared for the respondent below, and on the appeal. The appellant appealed with the leave of Mr Justice Ramsey.[5]The facts can be briefly stated. At about 7.10pm on Wednesday 25th August 2004 two year old Joshua Berrill was walking along a pavement in Birmingham with two thirteen year old girls, one of whom was his aunt, Millie Robinson. Joshua suddenly ran between parked cars and into the road. Millie screamed and ran after him. They were both struck by a Toyota MR2 motor car being driven by the appellant. The girl was thrown into the air, onto the windscreen. She suffered a broken ankle, cuts and bruises. Joshua was hit on the head by the front of the car and thrown to the road where his head impacted with the road surface. The appellant stopped for a split second and then drove off. Joshua had become caught under the car and the appellant drove on for some 350 metres with Joshua under his car before he was thrown clear. The appellant then drove away without stopping.[6]Joshua suffered multiple head injuries. Despite being conveyed immediately to hospital, he died of his injuries at 01.31 hours the following morning.[7]The prosecution view was that the appellant was faultless in the primary accident. He had done all that could reasonably have been done in the circumstances before and at impact. The appellant had been within the 30mph speed limit. There were no aggravating driving factors at that stage. The offence was committed by driving on. The appellant subsequently abandoned the car not far away.[8]The owner of the car, Wajid Hussain, was arrested and interviewed later that day. He denied being the driver. The appellant attended the police station two days later. There was no evidential link between him and the offence at that time. The appellant denied being the driver.[9]Notwithstanding his evidence at the trial that he was not the driver, the appellant was convicted at what was his fourth trial, albeit only the second which reached the stage of a verdict.[10]In his sentencing remarks, the judge referred to various authorities in ‘motor manslaughter’ cases, none of which were guideline cases. The sentence range he considered appropriate on the authorities was one of 6 to 10 years after a trial. The judge considered that authorities concerning sentencing for death by dangerous driving were of no real relevance to the sentencing exercise before him.[11]The judge referred to Attorney-General’s Reference No.111 of 2006 (Ghulam Hussain) [2006] EWCA Crim 3269, which had factual similarities to the appellant’s case. In that case the offender pleaded guilty to manslaughter, the victim having died after being caught under the wheel of the offender’s car as he drove for about a mile knowing the victim was under the car. Ghulam Hussain was sentenced to 3 years’ imprisonment. The Court of Appeal increased the sentence, stating the correct sentence on a guilty plea would have been 6 years, reducing that by a year to 5 years to reflect double jeopardy.[12]In his sentencing remarks, the judge correctly identified that there was nothing the appellant could have done when Joshua ran into the road. It was every driver’s worst nightmare. However, he said the medical evidence was clear. It was not the initial impact that killed Joshua, it was the brain damage sustained when he was dragged along the road. The jury convicted the appellant on the basis they were satisfied that he knew Joshua was under the car. The appellant had barely driven a car before that day. He had not passed a driving test. It was an aggravating factor that he was behind the wheel of the car at all. The judge stated that this was a hit and run incident of the worst sort. The appellant panicked in order to save himself and as a consequence Joshua died. The judge found the second aggravating feature was the appellant’s conduct both before and during the trial. He lied on a number of important matters. He lied to the police from the outset.[13]In mitigation, the judge said the appellant was only 19 at the time of the accident. His IQ was low. The judge gave him credit for the fact that at the time of the incident he was of good character. There had been two convictions since the index offence. They were not directly relevant, but tempered to a degree the character references provided. It was a mitigating factor that the original impact had not been his fault, although that was no different to the position in Ghulam Hussain. Joshua was under the wheel for considerably less than the victim in Ghulam Hussain. He was entitled to credit for the time spent in custody up to the first trial in May 2007 and on conditional bail since, but delay was of minor relevance. Millie Robinson, who suffered a relatively minor injury, had to relive the moment she lost Joshua on four occasions.[14]A pre-sentence report was before the sentencing judge, concluding that there was a low likelihood of reconviction, but that the appellant posed a high risk of harm to the public. However, the judge found that on all the information available to him, the appellant did not pose a serious risk of harm to the public, and that an indeterminate sentence was not appropriate.[15]A psychological report by Dr. Craig concluded the appellant suffered from a learning disability, with only 0.3% of the population falling below his overall thinking and reasoning ability.[16]The judge considered that the aggravating and mitigating factors set out above broadly balanced each other out. Taking the range he had taken from the authorities of 6 to 10 years, and comparing this case to the most similar case of Ghulam Hussain, the judge concluded by passing the sentence of 8 years’ imprisonment.[17]We turn to the grounds of appeal. The appellant’s first ground was that the judge was wrong to disregard the case of R v Richardson and Others [2006] EWCA Crim 3186 as being of no real relevance because it related to death by dangerous driving as opposed to manslaughter. It was submitted that the line between the two offences was very narrow, and that the absence of almost all of the aggravating features in Richardson plus the presence of some of the mitigating features listed, meant the case did have relevance to the appellant’s case.[18]Second, it was submitted that the sentencing judge was wrong to make a direct comparison with the facts of Ghulam Hussain. It was argued that there were important features of Ghulam Hussain’s case which made it significantly worse, and the judge failed to make any proper reduction for the factors which made this case less serious. Those were the youth and low IQ of the appellant, the fact he drove for a distance of about 350 metres, the fact that the appellant may have driven some part of that distance not realising that Joshua was trapped, the fact that there may have been potentially fatal injuries sustained on the primary impact (which was in no way the fault of the appellant) and the fact that the appellant had little driving experience. Ghulam Hussain was a mature man of 44, a professional (taxi) driver, not of low intelligence, drove a mile having realised immediately that the victim was caught under his car, but still continued to drive.[19]Thirdly it was submitted that insufficient weight had been given to the fact that no blame could be attached to the appellant for the initial impact and there was no evidence that the appellant was speeding or driving carelessly or dangerously before the impact. The prosecution expert stated that this was “every driver’s worst nightmare”. The appellant had done everything he could to avoid the collision. In such circumstances, the likelihood of panic was high and this was an important mitigating feature.[20]Fourth, it was impossible to exclude the possibility that whatever contribution to death was made by driving on, that Joshua had already had already received grave or even fatal injuries by the initial impact. It was submitted that the sentencing judge appeared to disregard this possibility, attributing death exclusively to the dragging along the road.[21]Fifth, it was completely unfair for the judge to say that delay was of minor relevance. Delay was an important mitigating factor for the appellant and further distinguished the case from that of Ghulam Hussain. The offence occurred on 25th August 2004, 3 years 9 months before sentencing. The police delayed charging the appellant until November 2006, despite having sufficient evidence much earlier. The appellant was tried on 4 occasions between May 2007 and April 2008. The appellant had been remanded in custody in November 2006 until June 2007, and was thereafter on bail with stringent conditions. It was submitted that all this delay, for an appellant ill-equipped for intellectually dealing with such matters, should significantly reduce his sentence.[22]Sixth, the offence was committed when the appellant was 19 years and 2 months old, and of (at the time) good character. He was living at home with full support of a caring and loving family.[23]Finally, it was submitted that the judge failed to adequately reflect that the appellant had a very low IQ of 58. Only 0.3% of the adult population had a lower IQ. Such significant limitation impinged upon his capacity to react in a crisis, to his driving ability, and to coping with the delay in the proceedings.[24]It was argued that overall, the Judge pitched the whole sentencing exercise too high and failed to comply with important sentencing principles, resulting in a sentence that was manifestly excessive.[25]We were assisted greatly on the appeal by Mr. Jones, who explained that the Crown’s case at trial had been put on the basis, not of unlawful act manslaughter or gross negligence, but on the basis of reckless manslaughter, the appellant knew that it was a child who was under the car rather than some other object, that he foresaw the risk of serious injury or death by continuing to drive and yet chose to take that risk and death resulted. When sentencing, the judge said the appellant was convicted on the basis the jury were satisfied that the appellant knew that Joshua was under the car. The judge made no finding as to what point the appellant realised that Joshua was under the car, and the appellant had of course given no evidence on this point, because he said he was not the driver. It was unlikely that the appellant saw the child hit the ground and then drove over him. To do so deliberately would be murder. This was, however, a case of the appellant being reckless as to causing the child serious injury or death. Something wrong was happening to the car almost instantaneously after the collision. He drove on for some 30 seconds. The question wasthe speed of realisation by the appellant.[26]We approach this case on the basis that, at some point which one cannot exactly define on the evidence but would have been earlier rather than later, the appellant knew that Joshua was under the car.[27]The prosecution expert, Mr. Shay, gave evidence that the appellant had been travelling at about 30 mph, there were skid marks, and at the end of the skid marks he would have been travelling at about 12 mph. Joshua was therefore hit at some stage between 30 mph, slowing down to 12 mph, but it was not certain as to exactly what speed impact took place. Having braked hard, the car momentarily stopped before accelerating away fast, with Joshua trapped in the suspension, which according to Mr. Shay would have affected both the steering and the noise of the car. Witnesses described the vehicle veering from left to right as it accelerated away. The witness Mr. Lamont described Joshua being thrown forward on impact, then being picked up under the suspension as soon as the car accelerated away. The appellant drove for about 350 metres before he turned right at which point Joshua’s body came out from under the car. He drove on without slowing at all.[28]It is clear that the appellant panicked, he knew he was unlicensed and knew he had been involved in an accident. If he had simply remained stationary when he stopped after the initial impact, there would have been no charges against him.[29]We were also assisted by Mr. Jones as to the impact injury. In his sentencing remarks the judge said “the doctor said expressly that there was no evidence of an impact injury”. The Crown’s case was in fact that it was possible that there had been some serious impact injury, obliterated by the injuries sustained in being dragged along the road, and that it was difficult to separate the injuries, but the pathologist Dr. Ackland’s conclusion was that it was probably the case that all or most of the serious injuries came from the dragging rather than the initial impact. There was nothing to show there was death on impact. In Dr. Ackland’s opinion, in road accidents, one could normally say when death was instantaneous. The jury must have found that whatever injuries he suffered on the original impact, did not cause his death. We do not consider that on the evidence, the extent of the injuries suffered by Joshua at the point of impact is of material significance in this case from the point of view of mitigation.[30]It was an aggravating feature that the appellant drove away, even after death occurred, and that he denied to the police that he was the driver with the consequent further suffering for the family. If he had told the truth the whole case would have been over and done with much quicker.[31]We take into account as mitigating features the appellant’s very low IQ, Dr. Craig’s report, the appellant’s positive good character and the numerous references.[32]The case of R v Richardson and Others [2006] EWCA Crim 3186 obviously offered some help, but this was more serious than dangerous driving in that the appellant knew the child was under the car and knowingly took the risk by driving on of killing Joshua or causing him serious injury. Richardson had limited relevance.[33]The appellant’s submissions on delay have little merit. The case from start to finish took nearly 4 years, however much of the delay was caused by the appellant. The judge rightly found this delay to be of minor significance in the sentencing process.[34]In his sentencing remarks

the judge said (at 7G – H):

“I have already indicated to you the range of sentences in the reported cases from between six to ten years, and I have already indicated that the most similar to this, Ghulam Hussain, was a case in which there was an eight year term of imprisonment.”
This was calculated by the judge on the basis that Ghulam Hussain was given a 6 year term of imprisonment by the Court of Appeal, after a guilty plea which attracted a discount of 25%.The sentencing judge then referred to the aggravating and mitigating factors of the appellant’s case before continuing, (at 8B – C):
“In my judgment it seems to me that the aggravating and mitigating factors broadly speaking balance each other out, and in those circumstances the appropriate sentence in your case is a term of imprisonment of eight years.”
[35]We consider that the driving in the appellant’s case was significantly less culpable than Ghulam Hussain. The appellant is much younger and suffered from a low IQ limiting his ability to deal with matters in a crisis, as evidenced by Dr. Craig’s report. The appellant drove for a shorter distance. Ghulam Hussain was a mature 44 year old, professional driver with no suggestion of low intellect.[36]Mr. Crigman submitted before us that the proper sentence would have been one of 5 years. We do not agree. We consider the appropriate sentence to be one of 6 years’ imprisonment.[37]For these reasons, the appellant’s appeal against sentence succeeded to the extent of reducing his sentence from 8 years’ imprisonment to 6 years’ imprisonment, less 232 days. The remainder of the sentence is affirmed.