Dunne, R. v

MR JUSTICE FULFORD: On 15th October 2004 at the Crown Court at Guildford the appellant, who has just turned 18, was convicted of causing death by dangerous driving and thereafter he pleaded guilty on rearraignment to aggravated vehicle taking whereby death was caused. He also pleaded guilty to offences of driving without a licence, failing to report an accident and using a vehicle without insurance, which were committed to the Crown Court pursuant to section 41 of the Criminal Justice Act 1988.

On 9th November 2004 he was sentenced by Judge Crocker to four years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for causing death by dangerous driving, and he was disqualified from driving for eight years and until he passes an extended retest. No separate penalty was imposed as regards any of the other offences. The appellant appeals against both elements of the sentence by leave of the single judge.

The car accident that left one of his friends dead and another seriously and permanently injured occurred in the following circumstances. Between 6 and 7 pm on 11th September 2003 the appellant drove to a fair in Ashford with three others, Nathan Young and Joe Lane, who both sat in the back seat of the car that he was driving, and Nicholas Llewellyn, the deceased, who sat in the front passenger seat. None of the four were wearing seat belts. The appellant had taken his grandmother's motorcar without her permission, and, moreover, as we have just indicated, he was driving without a licence or insurance. Whilst driving along a road called Long Lane he accelerated and overtook a Rover motorcar as it turned left into Short Lane. Simultaneously another car came out of Short Lane, but the appellant managed to drive past it without incident. Following the junction with Short Lane there is a bend in the road to the right. Young thought the appellant was approaching that bend too fast and he told him not to brake because he feared that, because of the speed that the vehicle was travelling at, the appellant would lose control of the vehicle. The speed limit on Long Lane was 30 mph. The police collision investigator estimated that the speed of the vehicle as it entered the bend was in the region of 50 mph. The road was in reasonable condition, although there were some minor potholes and there had been several repairs. It was established that there was no mechanical failure on the part of the vehicle and there was no evidence that any other person or vehicle was involved in the loss of control of the car. The rear nearside wheel touched the kerb and the car veered across the carriageway. The appellant tried to correct this, and the car swerved back towards the nearside and then rolled over twice, before coming to a stop.

Nicholas Llewellyn was thrown through the passenger window. Lane went through the front driver's vehicle. Young and the appellant got out of the car when it came to a stop. The appellant asked Young what he should do and Young said "Just go". The appellant left the scene before the police arrived. He went home. His family then took him to an address in Chiswick, where he remained until his arrest three days later.

The deceased, Nicholas Llewellyn, died as a result of blunt head trauma sustained in the accident causing brain injury. Lane sustained serious head injuries. He remained in hospital for some time, and a metal plate was inserted into his head. He has subsequently developed epilepsy and poor memory. Young and the appellant both sustained minor injuries only.

The appellant, following his arrest, made no comment in the interview with the police but submitted a prepared statement in which he stated that as he approached the bend there was an oncoming car. He developed this account during the course of the trial, and in evidence he was to say that this car had been driving over the white lines and on to his side of the road. However, no other witnesses mentioned such an oncoming car, and the jury's verdict means that they must have rejected that account as being untrue.

The appellant's grandfather gave evidence that he had taught the appellant to drive on private land; and he said that the appellant was good enough to pass his driving test. Moreover, he said that he had taken the appellant to an address in Chiswick after the incident as he did not think he was in a fit state to be questioned by the police.

We observe that there was a moving impact statement from the parents of the deceased before the court below which demonstrated clearly that the appellant had shown little or no remorse after the incident and that he had failed to take the opportunities that were made available to him to apologise to the family of Nicholas Llewellyn.

Against that failure, by the time the reports to which we will turn in a moment were prepared, the appellant had expressed regret for the results of his actions, although he did not and has not at any stage acknowledged that he in fact did anything wrong.

In passing sentence the judge observed that this case showed the tragic results that flow when young people drive illegally and that no sentence could compensate for the death of a son.

The appellant was aged 16 at the time of the crash. He was uninsured and was not legally entitled to drive. He arrogantly claimed he was a good driver, and tragically, as the judge observed, events demonstrated that this was wrong. Instead the judge considered, as he observed in passing sentence, that the appellant was showing off and was driving very fast for the conditions. In the view of the judge the only real mitigation was the appellant's age. But, he observed, it had to be made clear to others that the courts took a very serious view of people who drove when unqualified. Furthermore, the appellant's good character and the contents of a psychological report were taken into account by the judge, who expressly reduced the sentence he would have passed otherwise in the light of the appellant's age. The judge concluded that a detention and training order was not appropriate in this case, no doubt because the maximum available term - that of two years - was too short in all the circumstances.

There were two reports before the court below that we have considered with care.

In the pre-sentence report the appellant did not accept that his driving had been dangerous, although he admitted having previously driven illegally. He said that he felt remorse at the death of his friend. The author of the report indicated that his father had a number of criminal convictions and a bad drug habit, which would have made family life stressful. The appellant had demonstrated significant educational, emotional and behavioural difficulties at school. The risk of him reoffending and causing harm to the public was estimated as being low, although it was recognised that the offence was so serious that no alternative to custody was realistic and that a sentence of detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 would not be disproportionate. However, in the view of the probation officer, the most appropriate sentence would have been a detention and training order.

In the psychological report, Dr Ghadiali indicated the appellant's intellectual functioning is at an abnormally and significantly low level and he has long-standing learning difficulties. His emotional and behavioural problems were, in the view of the psychologist, probably caused by an abnormal family life. His father is addicted to crack cocaine, and the appellant had apparently witnessed many scenes of domestic violence. Perhaps unsurprisingly, he has suffered from a psychological adjustment disorder as a result of the accident and he demonstrated features of post traumatic stress disorder. It was stressed that he requires long-term support and supervision.

In support of this appeal Mr Butler, the appellant's solicitor, has succinctly advanced the following matters. First, it is submitted that both the period of four years' imprisonment and the period of eight years' disqualification were separately manifestly excessive. Second, it is contended that the judge failed sufficiently or at all to take into account the following matters: the appellant's age, his previous good character and his timely guilty plea as regards the offence of aggravated vehicle taking. Third, it is suggested that the judge wrongly, and against the weight of the evidence, concluded that the appellant had been showing off at the time of the accident. Fourth, it is argued that in any event this sentence was out of line with the guidelines set out in R v Cooksley [2003] EWCA Crim 996; [2004] 1 Cr App R (S) 1. Mr Butler has suggested that in the case of an adult following a trial, the range of sentence available to the judge was no higher than two to three years and that from that figure there should have been deducted an element to reflect the principal elements of the appellant's mitigation.

Turning to those various submissions, it is clear from the sentencing remarks that the judge very much had in mind the defendant's youth, his good character and the conclusions of the authors of both of the reports. The issue, in our view, is not that the judge failed to take those matters into account, as Mr Butler, as we have indicated, has argued, but whether the overall sentence passed was excessive in light of all the available mitigation.

The suggested timely plea as regards the aggravated vehicle taking is, in the view of this court, of little moment. No additional sentence was imposed in any event for that offence, and, moreover, following the jury's verdict on causing death by dangerous driving, the plea to that count became essentially inevitable.

Having presided over the trial the judge was well placed to determine whether or not the appellant had been showing off; and we do not see any reason to interfere with his conclusions in that regard. At the very least, at the time of the accident he was travelling significantly over the speed limit whilst going round a bend and the engine of the car was heard to have been revving in a high way at the time.

The real argument of merit that arises on this appeal is whether, bearing in mind the guidelines laid down in Cooksley, this sentence in both of its elements was manifestly excessive.

We agree that this case falls into what the court then described as being the category of intermediate culpability, in that the facts as we have described them demonstrate that this terrible crash was the result of either a momentary and dangerous error of judgment or it followed a short period of bad driving. However, we do not accept the suggestion that the appropriate starting bracket for the custodial term was a sentence of two to three years following a trial. The offence was aggravated by the fact that not only was one person killed but another was left seriously and permanently injured. Furthermore, we are of the view that the appellant's attempt to avoid justice was an aggravating feature, as was the fact that he was driving without insurance and without a licence.

The court in Cooksley expressly made it clear that if, for instance, two deaths were to result from an instance of driving of this kind the sentence following a trial could be of the order of five years. In the instant case, although only Nicholas Llewellyn died, as we have just observed, Joe Lane suffered very bad and lasting injuries. In those circumstances a custodial sentence following a trial of four years cannot be said to be, as a matter of principle, manifestly excessive.

The real issue is whether the mitigation in this case, when set alongside the aggravating factors, makes this a sentence with which this court should interfere.

What impresses us is the overall strength of the mitigation available to this appellant. Weighing his intellectual and educational deficits, his troubled and disturbing home life, his good character and youth, and the sense of remorse he eventually came, apparently genuinely, to feel for his actions as against the terrible consequences of this offence, we are of the view that this sentence, solely on the grounds of that particular personal mitigation, was somewhat too long. We consider that the 24-month maximum that is available for a term of detention and training would be an insufficient penalty for this offence and therefore we propose to reduce the custodial term imposed under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 by twelve months, making the overall length three years.

We stress that we are keenly aware of both the views and the anguish of the family of the deceased and the consequences for Joe Lane. As Mr and Mrs Llewellyn recognise in their statement, a custodial sentence will never change or reverse what has happened and imprisonment serves only to make the appellant accountable for what he did. This reduction in sentence is not in any sense meant to detract from the great loss to that family or to diminish the tragedy of the death of their excellent and highly valued young son. It is rather to ensure that, grave though this offence was, this appellant, bearing in mind the particular and powerful mitigation that we have highlighted, should only serve by way of a custodial term a sentence that comes within the guidelines that have been very carefully laid down for offences of this kind. We would stress that if this appellant had not had this particular mitigation or if he had been older, we would have had no hesitation in upholding the sentence imposed by the judge.

As for the period of disqualification, we consider that a period of eight years is significantly out of line with the guidelines again laid down in Cooksley. For dangerous driving of this kind when the offender has a previous unblemished driving record, the ban should be of the order of two years or so. However, with this appellant, by his own admission, he had driven illegally on earlier occasions and accordingly has demonstrated a clear tendency to disregard the rules of the road. He was driving without a licence and insurance, and in a car he had taken without the owner's consent. Those are important factors which raise the appropriate length of the period of disqualification from the starting point of in the region of two years. Accordingly, we consider that a period of five years' disqualification is appropriate in this case bearing in mind all of the circumstances.

In the result the period of custody is reduced by twelve months to three years; the period of disqualification is reduced to five years and the appellant will take an extended retest. To that limited extent this appeal is allowed.