R v Adam Ali [2025] EWCA Crim 870

[2025] EWCA Crim 870
IN THE COURT OF APPEAL
CRIMINAL DIVISION
London
WC2A 2LL
Venue ON APPEAL FROM THE CROWN COURT AT MINSHULL ST, MANCHESTER
Between
R E XCrown
(HIS HONOUR JUDGE USHER) [06GG0420122]
Case No 2025/00692/A5 Tuesday 15 April 2025
B e f o r e:
LORD JUSTICE EDIS
MR JUSTICE CAVANAGH
HIS HONOUR JUDGE MANSELL KC
(Sitting as a Judge of the Court of Appeal Criminal Division)
____________________
ATTORNEY GENERAL'S REFERENCE
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
____________________
- v -
Between
ADAM ALI____________________Computer Aided Transcription of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_____________________Mr N Holland appeared for Attorney GeneralMr N S Ross appeared for Offender____________________J U D G M E N TDate 2025-04-15
[1]This is an application by His Majesty's Solicitor General for leave to refer to this court, under section 36 of the Criminal Justice Act 1988, a sentence that she considers to be unduly lenient and should therefore be increased. We grant leave.[2]The court has received extremely helpful submissions from Mr Holland on behalf of His Majesty's Solicitor General and from Mr Ross on behalf of the offender.[3]On 28 November 2024, the offender pleaded guilty to two offences. Count 1 charged an offence of causing death by dangerous driving, and count 2 charged an offence of causing serious injury by dangerous driving.[4]On 27 January 2025, in the Crown Court at Manchester Minshull Street, the offender was sentenced by His Honour Judge Usher to four years' detention on count 1 and to a concurrent term of 18 months' detention on count 2, making a sentence of four years' detention in all. There were orders of disqualification from driving made in respect of both offences: on count 1, seven years' disqualification (the minimum permissible period of five years, and an extension of two years) in relation to the period during which the offender would be in custody. There were also orders to take an extended re-test and to pay the necessary surcharge.[5]The offender is Adam Ali. He is now 20 years of age, having been born on 31 July 2004.[6]The offences which resulted in his conviction and sentence occurred on 15 October 2022, when he was aged 18. He pleaded guilty to those counts on 28 November 2024 at a stage in the proceedings which the judge determined should result in credit against the sentences of 20 per cent. Neither side complains about that, and we will be faithful to the judge's determination as to the credit for the guilty pleas.[7]The facts which gave rise to the indictment can be shortly summarised. The offender was driving along a road in an urban area of Greater Manchester which had a speed limit of 30 mph. He had three passengers in the car with him. The road was wet. Tram tracks were set into the surface of the road which might also represent a hazard of skidding in the event that a car drove at a significantly excessive speed. The offender drove along that road at a speed of over 60 mph. He lost control of the vehicle which collided with a lamp post. One of his passengers was tragically killed. Another was seriously injured. That passenger has not sought to support the investigation into what happened, and therefore the extent of his injuries is not entirely clear.[8]The submission of the Solicitor General is advanced on three bases: first, that the judge erred in placing this offending too low in the sentencing range in the sentencing guideline; secondly, that the downward adjustment after identifying the appropriate starting point within the appropriate range for mitigating features was too great; and thirdly, that the period of the disqualification from driving was too short.[9]It is unnecessary to go into very much more detail about this incident than we have already explained. We should record that the young man who died was Ben Burbidge, who was then 16 years old. The young man was injured was Justin Saidi, then 17 years old. A third passenger, who appears to have been uninjured, was Keenan Pardy.[10]The only evidence of why this journey was being undertaken came from the offender when he was interviewed by the police. It is unfortunately the case that he has a history of minimising the extent of his guilt, and his account of the circumstances which led to the offending is not therefore wholly reliable. During that interview he maintained that he had been driving at 30 mph, within the speed limit, rather than at a speed of over twice the permitted speed.[11]At all events, the offender said that he had picked up his passengers shortly before the collision and that they were going for a ride without ay particular destination in mind. He had known Mr Burbidge for a short period of time, but had not met the other two before.[12]We have seen CCTV footage of the horrifying crash. It is absolutely clear that the car being driven by the offender was being driven at a very dangerous speed for the road and weather conditions.[13]The vehicle had no mechanical defect which might have contributed to what happened. Tests on the offender showed no presence of either drugs or alcohol in his system. The cause of the accident was therefore attributed to the speed at which the vehicle was travelling and possibly to the driver's lack of driving experience.[14]The offender's driving history featured as a relevant consideration in the sentencing exercise. He first obtained his full driving licence on 28 May 2022. By the time of this incident in October of that year, he had already been caught speeding and was awaiting a speeding awareness course. It is accepted before us that that is a factor of relatively limited significance.[15]However, what occurred after the incident in October 2022 is of rather more importance. At the point of the incident, the offender had no previous convictions or cautions and was a person of good character, subject only to the speed awareness course to which we have already referred. However, afterwards, instead of driving in a careful and restrained way, as might be expected of somebody who had caused the death of a friend in a terrifying accident, the offender has committed significant road traffic offences. On 22 December 2023, when he was aged 19, he was dealt with for two offences of speeding in June and July 2023, and an offence of driving without due care and attention, committed in July 2023. Among other orders made by the court was a disqualification from driving for six months. On 14 August 2024, he fell again to be sentenced for offences which had been committed on 15 June 2024, when he was still aged 19. He was then sentenced for offences of driving without due care and attention, driving while disqualified, driving without insurance, driving otherwise than in accordance with a licence, and possession of a Class C drug. The circumstances surrounding those offences reveal a deeply worrying and significant event. At this point it should be remembered that the offender was awaiting trial for the offences with which we are dealing today. He had been convicted and disqualified the previous December, as we have recorded. Despite all that, he was driving a vehicle which collided with another vehicle, causing damage, while he was trying to park it. A nearby witness enquired whether the offender proposed to leave his details, having caused that damage. The offender said that he would, but then drove away in order to escape the scene through a narrow space between various obstructions, including a vehicle belonging to the witness. He caused damage to that vehicle. At that time he was seen to have a balloon which contained nitrous oxide in his mouth. Afterwards, a number of nitrous oxide cannisters were found in the car.[16]Although all of the offences were dealt with by the magistrates comfortably within their sentencing powers, that was a serious incident, particularly in the context of the offender's history.[17]The judge was required to apply the Sentencing Council guideline. The offences were committed after the increase in the maximum penalty for causing death by dangerous driving from 14 years' custody to life, and the sentence was imposed after the new guideline reflecting that increase had come into force. Culpability in that guideline is divided into three categories, A, B and C. Category A includes as a factor which would justify including an offence within it:
"Speed significantly in excess of speed limit or highly inappropriate for the prevailing road or weather conditions."
The first factor is: 18. "Deliberate decision to ignore the rules of the road and disregard for the risk of danger to others"

The first factor is:

[18]It has been submitted to us, and we accept, that in the circumstances of this case those two separate factors are really describing the same thing, namely, a deliberate decision to drive at a speed which was highly inappropriate for the prevailing road and weather conditions and which was significantly in excess of the speed limit.[19]Other factors listed in the culpability A list which are commonly seen in cases of this kind were not present in this case. There was no racing; there was no police chase; there was no impairment by alcohol or drugs, and so on.[20]Category B has a factor which is also designed to reflect driving at excessive speed. It says:
"Driving at a speed that is inappropriate for the prevailing road or weather conditions (where not culpability A)."
[21]Culpability C is where the standard of driving was just over the threshold for dangerous driving.[22]There are similar culpability factors for the offence charged in count 2, but in respect of that offence there are also two categories reflecting the harm which, in a case of causing serious injury by dangerous driving, will vary between cases. In a case of causing death by dangerous driving, the harm is always at the highest possible level since a death has been caused.[23]If the case is categorised for count 1 purposes as a culpability A case, that gives rise to a starting point of 12 years' custody and a range of eight to 18 years. If the proper categorisation is B, the starting point is six years' custody and the range is four to nine years.

The Sentencing Hearing

[24]The judge had a pre-sentence report about the offender. It recorded a number of positive aspects of his life and character. He was attempting to secure a university degree and had good prospects for his future. He was married and determined, so far as it could be seen, to lead a constructive and successful life. However, the author of the pre-sentence report also recorded on the other side of the scales that the extraordinary driving history of the offender meant that he poses a high risk of harm to the public.[25]There were character references and letters placed before the judge on behalf of the offender, including letters by the offender himself to the judge, and a letter addressed to the parents of the deceased, Ben Burbidge.[26]Victim impact statements made by Mr Burbidge's parents and two of his sisters, which were read out during the sentencing hearing, describe in clear and moving terms the unbearable trauma caused by the loss of their much loved son and brother.[27]Prosecuting counsel suggested that this was a case which might fall into culpability B on the basis that it fell somewhere between A and C. Defence counsel submitted that the proper categorisation was in culpability C.

The judge recorded those submissions and said:

"In my judgment, driving at this speed on that road in those conditions is most definitely not driving that was just over the threshold for dangerous driving. … The particular facts of this case put your case towards the bottom of category A and the top of category B."
[28]The judge held that the accident had happened because the offender was a young man showing off to his passengers. He identified, therefore, the starting point of category A as 12 years' custody, with a range between eight and 18 years. He took as his starting point the figure at the bottom of that range, namely eight years' custody.[29]The judge then increased that to reflect the aggravating features. The principal aggravating factor was the injuries caused to the victim of count 2. The judge might have identified the risk of serious injury or death to the third passenger, but he said that that would be double counting. He therefore increased his sentence, before consideration of matters of mitigation, to a figure of ten years in order to take into account the commission of the offence in count 2 because he proposed to adopt the usual practice in cases of this kind of imposing a sentence on the most serious offence which was designed to reflect the overall criminality of the offender. The sentence for the offence in count 2 would therefore be imposed, as it ultimately was, to run concurrently with that on count 1. He then moved to evaluate the sentence before discount for the guilty plea by applying the mitigating factors to that figure of ten years' detention.[30]The judge identified, as the principal matter reflecting on mitigation, the age of the offender at the time when the offence was committed. He was 18.[31]The judge then went on to explain his approach to the offending which had occurred following the commission of these offences. He said:
"I have made clear that your post-offending record does not aggravate your culpability in this case and I have referred to the case of Darrigan from 2017."
He explained that the significance of the offender's behaviour after the fatal accident had occurred was that it wholly undermined any protestation of remorse. The judge said that he did not accept that there was any genuine remorse. What he therefore identified after that thought process was mitigation arising from the age of the offender at the time of the offence. This he described as "very considerable mitigation", which reduced that ten year term to one of five years. Allowing 20 per cent credit for the guilty plea, that resulted in the term of four years' detention, which we recorded at the start of this judgment.[32]It is right to record that the judge found that the offender is dangerous for the purposes of the dangerousness provisions in the Sentencing Code. He held back from imposing an extended sentence because of the age of the offender at the point when he was sentenced and at the point when he committed the offence. He said:
"The fact that you are still young and still have time to mature and hopefully radically rethink your attitude to car crime means that I can pull back from imposing an extended sentence."
[33]It is, of course, right to say that the offender's age was a very significant factor in deciding what the right sentence should be in this case. It is also right to say that it operated in his favour, both in halving the term of the sentence of detention and in avoiding the imposition of an extended sentence.[34]We have recorded in summary form at the start of the judgment the submissions made by Mr Holland on behalf of the Solicitor General. Mr Ross, on behalf of the offender has submitted to us persuasively, both in writing and orally this morning, that the sentence imposed by the judge was one which was properly open to him; that the judge had identified all relevant factors, and had followed an entirely appropriate process in giving effect to those various factors. He submits that the judge's sentence was an appropriate and proportionate one with which we should not interfere.

Discussion and Decision

[35]Our starting point in assessing this application is that the final sentence imposed on this young offender of four years' detention was, in the context of an offence of this kind, a sentence which was simply too low. It is always possible to identify different parts of the chain of reasoning which led to a particular outcome and to identify how they might or should have been dealt with differently. We will undertake that exercise when we come to explain what we consider the appropriate sentence should have been.[36]It may be that the judge was deflected to some extent by the submissions made by counsel about the appropriate categorisation of this offence, and it may also be that he was deflected from having full regard to the events which post-dated the offending, having considered the decision of this court in R v Darrigan [2017] EWCA Crim 169. Darrigan was a fact specific decision about a particular case. It would be wrong to extract from it the proposition that conduct after the commission of an offence can never be relevant in a way which is adverse to the person who is to be sentenced. At [11] the court said:
"… There are cases of serious offending by a juvenile followed by delay in disposal of the proceedings where that juvenile can demonstrate by keeping out of trouble that he or she has left criminality behind. Alas that is not the position here. On the contrary, the subsequent offending shows that a short period of custody made no difference to the trajectory of this appellant's offending and neither did a series of non-custodial sentences. …"
[37]In other words, the court was not saying that the subsequent offending was irrelevant. The point that was being made was that it is irrelevant to the classification of the culpability and harm involved in a particular offence. It is – or may be – highly material when deciding how the case should finally be disposed of. That proposition was also made clear by this court in R v McDonnell [2021] EWCA Crim 281, where, at [19], the court said:
"Mr English's submission in his written grounds that 'as a matter of chronology' it was not possible for the second offence to aggravate the first, is correct as far as it goes. The second offence was not relevant to the starting point for the first offence. It was not a previous conviction for the purposes of section 65 of the Sentencing Act 2020 (formerly section 143(2) of the Criminal Justice Act 2003); see the reasoning in R v Darrigan [2017] EWCA Crim 169. But it was relevant to whether the suggestion of a community disposal or suspended sentence was realistic."
[38]The position, in our judgment, therefore, was that the judge was required to go through the steps in the guideline, as indeed he did, and to arrive at a just and proportionate sentence at the conclusion of the process. The offences committed by the offender after October 2022 were relevant to the last part of that exercise, undermining mitigation which might otherwise have been available.[39]As we have indicated, we consider that the final figure at which the judge arrived was unduly lenient. A sentence of four years' detention is simply too short for offending of this seriousness. We will, therefore, approach our sentencing exercise in determining what sentence ought to be imposed in place of the judge's sentence on count 1, which we will quash.[40]We start with the categorisation of these offences for culpability purposes. In our judgment, there is no question but that these are culpability A offences of a serious kind. The starting point for a culpability A offence is 12 years' custody. We are prepared to accept that some adjustment to that starting point was appropriate to reflect the fact that there was a single culpability A factor present here, whereas commonly there are multiple – or at least several – such factors. We consider that, having regard to the fact that this was a case where very excessive speed was the critical feature of the dangerous driving, an appropriate sentence of detention, before further adjustment, would have been one of ten years. To that must be added a term to reflect the fact that one person was killed, another person was significantly injured, and a third person was placed at serious risk of harm. We consider that those factors warrant an increase in the sentence of detention at this stage of the process to 12 years' detention.[41]We turn to the mitigation. We consider that the only significant mitigation available to the offender is his age, both at the time when the offending took place and at the time of sentence. He was not far past his 18th birthday at the time of the offence. That takes him into the adult range of sentencing, but he does not move, at the moment of his 18th birthday, into a condition when he is treated as a fully mature, developed adult. He is entitled to a reduction to reflect this factor. We consider that the judge's reduction of 50 per cent was excessive. We consider that an appropriate reduction from our term of 12 years down to eight years would be just and proportionate. The matters of personal mitigation which we refer to above are included in the assessment of the relevance of youth in this case, and are, as we have said, undermined by the offending committed after this offence.[42]In particular, we agree that the judge was right to reject any mitigation based on remorse. We recorded earlier in this judgment the fact that the offender has minimised his responsibility for what happened when interviewed subsequently, and there is some sign of that continuing into the pre-sentence report. But the most significant factor negating remorse is his continual offending after the event. It might be thought that a person who was genuinely remorseful, having done what he did, with the terrible consequences that it had, would have successfully mended his ways so that he was no longer a danger to the public. The offender has spectacularly failed to do that and we, like the judge, reject any mitigation based on remorse.[43]Therefore the eight years, based on age and personal mitigation, falls to be reduced further only by reference to the guilty plea. As we have said, we will adhere to the judge's assessment of that factor and discount the eight years by 20 per cent, with a small amount of rounding in the offender's favour, which produces a sentence of 76 months' detention (six years and four months) on count 1. There is no need to adjust any of the other orders made by the judge, except that it is necessary to adjust the extension to the disqualification to reflect the increased time that the offender will now spend in custody.[44]The disqualification period was five years. Contrary to the submissions made by the Solicitor General, we consider that that was proportionate and appropriate in the case of a young offender of this age. To that we must add a further period of 38 months, being 50 per cent of the custodial term of detention which we have now imposed. Accordingly, the total disqualification on count 1 is eight years and two months. All the other orders made by the judge can stand as they were. ______________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________

Cited in 1 later judgment