May, R. v

J U D G M E N T

1. MR JUSTICE DAVID CLARKE: On 3rd December in the Crown Court in Chester the appellant, David May, who is 18, pleaded guilty to causing death by dangerous driving and driving whilst disqualified, together with associated offences relating to insurance and other matters. On 22nd December 2004 he was sentenced by His Honour Judge Elgan Edwards, the Recorder of Chester, to eight years' detention in a young offender institution for the offence of causing death by dangerous driving. He was disqualified from driving for ten years and was ordered to take an extended driving test before obtaining any future driving licence. For driving whilst disqualified a short concurrent sentence was imposed and no separate penalty was imposed on the other matters. He appeals against this sentence by leave of the single judge. He appeals against both the length of the sentence of detention and the length of the disqualification from driving.

2. The facts of this case were tragic. In the early hours of 11th September 2004 the appellant was driving a Vauxhall motorcar. His explanation for the driving of the car was that he had borrowed the car from a friend. He was driving too fast in a 30 mph residential area, familiar to him because he lived in the vicinity himself. He had also been drinking.

3. At about 2.20 am he was going round or attempting to go round a bend in the estate in Winsford where this took place, between Dover Drive and Wingfield Close. It was a left-hand bend. It was one which can safely be taken at speeds up to some 45 mph, but there is a speed limit of 30 mph applying to the road. As he negotiated or attempted to negotiate the bend, he lost control of the car. He collided with a pedal cyclist. The pedal cyclist was a young man called Mark Lucas, 21 years of age, who was killed instantly. After hitting the pedal cyclist, the car continued across the road, smashing through fencing panels into the garden of a house, where it crashed through the patio doors of that house and became embedded in the living room. We have photographs of that scene. After impact the engine caught fire. The noise woke neighbours as well as the residents of that house. The appellant was seen to leave the car. He was seen to climb over the bonnet into the house and then out again, and then to run away, appearing to be dazed and disorientated. There was extensive damage done to the property.

4. Experts in reconstructing accidents assessed his speed at having been at least 45 and up to 51 mph.

5. He made his way home. He told his mother that he had been in an accident and thought that he had hit a lamppost. She described him as being "drunk".

6. He attended at the police station later that morning. When tested for alcohol at around midday (some ten hours after the accident) his alcohol level was within legal limits. But in interview he said that he had drunk three pints of Stella Artois, strong lager, the night before. He had been driving home. He was familiar with the road. It was the first time he had driven that car. He described himself as "not being a good driver". He mentioned an earlier occasion when he had lost control on the same bend. But he also expressed remorse for causing the death of the victim.

7. The appellant had minor previous convictions, but most relevant in this case was that, some six weeks before the fatal accident, for an offence of driving with excess alcohol, he was both fined and disqualified from driving for two years. That was a severe aggravating feature of the present case, as was the fact that he had never held a driving licence nor had driving lessons.

8. There was a pre-sentence report before the court. It recorded the appellant's regret and remorse for what had occurred. He was aware that he had not only taken the life of Mr Lucas but also that he had caused deep grief to the family of that young man, and particularly to not only his parents but also his fiancée and young child who would not now see her father. There was before the court a letter from the appellant's mother, also a testimonial from an employer. The judge also had, and we have carefully read, the moving statement of Miss Verdin, the fiancée of the deceased. We are fully aware, as was the judge, of the extent of the loss suffered by her and their daughter and the wider family.

9. In passing sentence the learned judge said:

"I take into account your guilty pleas, also your age and the references that I have read about you, also everything that has been said very ably said by your barrister. But this is a very bad case of its kind. Only six weeks after a drink driving conviction and a disqualification you were drinking and driving again and you were doing so on a road near to your home where you had previously lost control of a motorcar. On this occasion you lost control again, with devastating results to Mark Anthony Lucas, whom you killed, potentially devastating consequences to the householders and the neighbours of the householders whose house you drove into, embedding your vehicle in the living room of that property.

Furthermore, I have said already, and I am afraid I am bound to say it again, I do not accept that you thought that you had hit a lamppost. You knew you had hit someone and you left him there thinking more of yourself than you did of that injured if not deceased man. Persons who drink and drive and kill must expect severe punishment notwithstanding that you are only 18 and this is your first custodial sentence. I take into account that Parliament has recently increased the penalty for causing death by dangerous driving, but I also remind myself that nothing I can do today, sadly, will bring back Mr Mark Anthony Lucas, a father and a potential husband, had he lived."

The learned judge went on then to pass the sentence which we have described.

10. Mr Jebb, by his cogent and well-argued written and oral submissions, contends that the judge must have taken too high a starting point to arrive at the sentence of eight years' detention. The appellant entered his plea of guilty at the first opportunity and should have been given full credit for that. The judge, if he granted the full normal level of credit, must have taken a starting point of twelve years, which is very close to the new maximum of fourteen years for this offence.

11. Reliance is placed on the guideline case of Cooksley and Others [2004] 1 Cr App R (S) case 1, where the court considered in detail the advice of the Sentencing Advisory Panel on sentencing for offences of causing death by dangerous driving and set out various starting points for the courts to adopt from then on.

12. We will return to those in a moment, but it is right to make a number of more general points about sentencing in cases of this sort. The first is an obvious one. Every such case represents a human tragedy which has devastated a family. Nobody can turn back the clock. No term of imprisonment or other punishment can reconcile the bereaved family with their loss nor cure their grief. No one must be tempted to measure the length of the sentence passed against the value of the life which has been lost, because that was priceless.

13. Secondly, these cases, unlike so many other types of case before the courts, do not involve an offender who intended to do harm to his victim. There are all cases of dangerous driving caused by lack of care, often a particularly gross lack of care amounting, in common parlance, to recklessness. But some proportionality must be maintained between these cases and the sort of offences of violence in which serious injury is positively intended.

14. Thirdly, proportionality must be maintained between this case and other similar cases which come before the courts around the country. The court should strive to achieve consistency as far as possible. That is the purpose of having guideline cases, which lay down starting points, whilst at the same time emphasising that no two cases are wholly the same. The fact that a sentence is passed in the Crown Court which is lower than some might expect in order to remain consistent with those guidelines, or indeed the fact that in some cases sentences are reduced in this court, may come as a disappointment to those most closely affected but it does not mean that the court has failed to recognise the nature or depth of the loss which they have suffered.

15. Mr Jebb's submission in the present case is that, bad though this case was, it was not at the very top end of gravity which would justify taking a starting point so close to the new maximum sentence of fourteen years, particularly having regard to the young age of this appellant.

16. Cooksley was, of course, decided before that increase, but this court held last week in Gray on 29th April 2005 that it would be wrong to regard the increase of the maximum as justifying an across-the-board proportionate uplift in the entire range of sentences for this offence. The increase was, however, principally introduced to cover cases in the highest level of gravity and it was of direct relevance to the present case, because this case does fall, as was conceded before the judge, into the category identified in Cooksley as being a case of the most serious level of culpability, where in Cooksley it was suggested that sentences of six years and upwards towards the maximum of ten were appropriate. The court adopted the advice of the Sentencing Advisory Panel as regards that most serious culpability category, though it generally held that they should be cases in which at least three of the aggravating factors set out in paragraphs (a) to (i) of the panel's report were present. In this case there is in fact only one of those present, namely the element of alcohol. But we are satisfied that this case could be properly regarded as in that top category of seriousness. It had three serious aggravating features outside outwith the actual manner of driving. First, the previous conviction for drink driving. Secondly, associated with it, the fact that he was disqualified, and so recently. Third, the fact that, although no other person was suffered physical injury let alone death, very serious damage was done, causing great alarm to the residents of that house. We would add to those matters the fact that he ran away from the scene and did not present himself to the police until hours later. As to this, the judge did not accept that the appellant thought that he had hit a lamppost and did not know that he had hit a person. The single judge, granting leave, pointed out that this finding, namely that he knew he had hit someone, was not supported by the evidence; and we agree that there is some force in that criticism. But we attach little weight to it in the context of setting the sentence. Undoubtedly the appellant knew that the accident involved more than merely hitting an lamppost in the light of the evidence as to how the car finished up embedded in the house. The fact that he absented himself from the scene was properly to be regarded as a significant factor. The question which remains is: where should this case be placed within the wide band of cases within the category of most serious culpability, and did the sentencing judge take sufficient account of the youth of this appellant?

17. We have reminded ourselves of a number of decisions, including two in which this court reduced sentences on young men of this sort of age which were cases again of the highest level of culpability, namely Corkhill [2002] 2 Cr App R (S) case 18; and Cook, which was decided together with Cooksley and involved two fatalities. Both those were cases in which higher sentences would have been likely to be passed in the light of the new maximum.

18. But in all the circumstances we are persuaded that the Recorder of Chester did go too high in the present case. The starting point was justifiably a double figure starting point. In our judgment, however, the notional starting point of twelve was too high.

19. We have done our best to balance all the factors in this case to arrive at the proper sentence for this appellant. Having regard to all the matters to which we have referred, we conclude that the proper sentence of detention in a young offender institution here, in substitution for eight years passed by the judge, is one of six-and-a-half years.

20. There remains the question of the length of the disqualification. The learned Recorder gave no reasons for the very long period which he imposed. It must be remembered that when it ends the appellant will not be eligible for a driving licence until he has passed not only the standard driving test but the extended driving test, which is a very much more demanding test. When he is released from his custodial sentence a long time from now, it will be in the public interest that there will be a time in the foreseeable and not too distant future that he can be rehabilitated so as to become a proper driver, if indeed he intends to drive again, because he has expressed the view that he will not. A long disqualification does tend to impair any prospect of rehabilitation in the future. On the other hand, it is an important part of the punishment element. In our judgment the disqualification was unnecessarily long. But we do not reduce it anywhere near the time when he will be released from custody. We reduce that term from ten to seven years. The appeal is allowed to that extent.