Hampson, R. v

We took time for consideration for reasons we shall explain.

This Appellant appeals against sentence by leave of the Single Judge. On 26 August 2005 in the Crown Court at Leicester he was convicted of causing death by dangerous driving. On 6 October H.H.Judge Lea sentenced him to 5 years’ detention under section 91 of the Powers of the Criminal Courts (Sentencing Act) 2000 and disqualified him from driving for 6 years and until an extended test was taken.

On 2 December 2004, the day following his sixteenth birthday, the Appellant bought a Ford XR3i car for £50. The seller told him that the hazard lights did not work and that one of the tyres needed replacing. The car had recently failed its MOT test. Jon Morris, a friend of the Appellant, drove the car to a car park, since the Appellant of course had no driving licence. Nor had he any insurance.

The Appellant drove the car on the car park with two friends as passengers. Jamie Yendell, who was 15, travelled in the front passenger seat. Thomas Copson travelled in the back. Neither the Appellant nor Jamie Yendell wore a seat belt and it is unlikely that Thomas Copson did. Other friends got into a VW Polo driven by Jon Morris.

The appellant then drove out of the car park, followed by Jon Morris driving the VW Polo. It was dark. The weather was fine, but the road surface was damp. Thomas Copson described the wheels spinning as they set off. He described the Appellant driving at high speed, repeatedly flicking the steering wheel from left to right, and driving the wrong way round roundabouts and driving on the wrong side of Keep Left signs. He said that he was thrown about as the Appellant drove at speeds up to 70 m.p.h. and as the Appellant drove on the wrong side of the road. At one stage the Appellant nearly collided with the VW Polo.

On a straight stretch of dual carriageway lit by street lighting on the A6 Jon Morris overtook. The occupants of both vehicles were gesturing at each other. Both passengers encouraged the Appellant to “put his foot down” to catch the VW Polo. The Appellant caught and overtook the VW Polo, but then lost control and struck a lamp post.

An accident investigator later found defects in a tyre, the brakes and the exhaust system, although none of these contributed to the accident. It was concluded that the Appellant, having made a misjudgement while overtaking the VW Polo was unable to correct the mistake. From the Appellant’s counsel we learn that the period of driving approached 10 minutes.

Jamie Yendell and Thomas Copson were trapped in the car. Jamie Yendell died of his injuries. Thomas Copson suffered serious injuries to both long and short bones in his legs and required surgical pinning of the bones and skin grafts. He also suffered cuts and bruises to his face and body. The Appellant was thrown through the windscreen and suffered lesser injuries.

When a police officer asked the Appellant’s name, he said “I’m not telling you anything”. He told another officer that he wanted to go home, not to hospital. He denied knowledge of a white car and said he was not the driver. He was in fact taken to hospital by ambulance. When arrested on 3 December he said he could not remember anything until he woke up in the ambulance. He was not taken into custody because of his injuries, but was rearrested on 6 December. He was interviewed on that day and again on 28 January, but said he could not remember anything. He admitted that he had no sort of driving training and did not know the national speed limit and he said he was unaware of any defects in the car.

The Appellant had been made subject to a Referral Order for 6 months, imposed by the Loughborough Youth Court on 26 August 2004 for threatening behaviour and attempted theft of a bicycle. According to the Pre-sentence report written by Claire Thorpe, a Senior Social Worker, an offence under section 4 of the Public Order Act was committed on 8 September 2004 and on 4 November 2004 the Referral Order was revoked and replaced by a 3 month Action Plan Order. After the accident and when on bail he committed another offence of threatening behaviour in January 2005 and an offence of criminal damage outside the family home in April 2005, after an argument with his parents. Both these offences resulted in conditional discharges. In addition he had convictions in July 2004 for two road traffic offences, of which the Crown Court was aware, but unfortunately Counsel was not able to tell us what the offences were; we must in fairness assume that they were not the most serious.

Records of progress under the Action Plan Order noted that the Appellant was deeply affected by the accident and described how it was playing on his mind. The Pre-sentence report said that the Appellant accepted culpability for his friend’s death and expressed a considerable amount of remorse for his actions. He believed that he deserved a custodial sentence and acknowledged that this might help the deceased’s family to move on in their lives. Local opinion, including that of other friends, turned against the appellant. The trial judge in passing sentence said that when giving evidence during the trial the Appellant exhibited an arrogant belief in his abilities as a driver and clearly believed that he could drive as well as anybody else. That view, which we must respect, qualifies the expressions of remorse, although the Appellant’s regret at the death of his friend is not in doubt.

The Appellant’s mother told the social worker that he had started to get into trouble when he began to associate with offenders and that the parents had tried to prevent such association, knowing that the others were committing driving offences. They had reported the April 2005 offence because they felt that the Appellant’s behaviour was deteriorating under the pressure of these proceedings and were desperate to get help for him. At their request, on 6 June 2005 the Appellant was made subject to an Intensive Supervision and Surveillance Programme as a condition of bail. Shortly after that the appellant was charged with a breach of bail and a further Public Order Act offence. These charges were ultimately not pursued, but the Appellant was remanded to local authority accommodation.

The Appellant had started a construction course in March 2005, attending Markfield Community Centre one day a week and doing well, his practical work being described as excellent. He went on to another construction course and later commenced a Princes Trust course, receiving good reports. His father also provided some work experience in fitting gas appliances and central heating systems.

As a result of the remand, the Appellant was placed with a foster carer, but the intensive programme continued and a progress report was before the judge. The Foster carer reported him as being polite and co-operative and wrote a positive letter to the court. He complied with the conditions of his remand and co-operated with the 25 hours a week of supervision and surveillance under the programme, having a positive relationship with his Advocate and others with whom he came into contact. That co-operation continued in the period between conviction and sentence, when the Appellant knew he faced a custodial sentence.

The social worker assessed the risk of reoffending as low.

In addition to letters from the foster carer and the Appellant’s father, there were six other letters from relatives and friends, speaking well of the Appellant. One in particular noted that the offending had occurred at a time when there were family difficulties with which the Appellant struggled to cope.

The judge described the Appellant as showing off. He noted that there was bad driving at excessive speed over a considerable distance, despite warnings from Thomas Copson. He noted the previous offending. He said:

“I have to determine what is the appropriate sentence to pass today by way of detention. I bear in mind everything that has been said, and everything that has been written on your behalf. If some good is to come of this, and from where some people sit in this Court it will be difficult to see that it could, it can only come in your growing up and determining to lead your life in a far better way than you have done thus far, and I suppose the references I have seen give me some encouragement to hope that that may happen. I hope it does”.

The guideline case in R. v. Cooksley [2004] 1 Cr.App.R. (S) 1. At paragraph 32, the Court said:

“We have set out for starting points; no aggravating circumstances – 12 to 18 months; intermediate culpability – two to three years; higher culpability - four or five years and most serious culpability – six years or over. We make clear that starting points only indicate where a person sentencing should start from when seeking to determine what should be the appropriate sentence. There is, however, a danger in relation to the higher starting points of the sentencer, if he is not careful, double accounting. The sentencer must be careful not to use the same aggravating factors to place the sentence in a higher category and then add to it because of the very same aggravating features”.

Of the aggravating factors set out in paragraph 15, the following were relevant:

“(b)

greatly excessive speed; racing; competitive driving against another vehicle; “showing off”.

(c)

disregard of warnings from fellow passengers.

(d)

a prolonged, persistent and deliberate course of very bad driving.

(i)

driving a poorly maintained … vehicle, especially where this has been motivated by commercial concerns.

(j)

other offences committed at the same time, such as driving without ever having held a licence … driving without insurance …

(k)

previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excess alcohol before driving.

(m)

serious injury to one or more victims, in addition to the death(s).”

The court said (at paragraph 28) that the most serious culpability might be indicated by the presence of three or more of these aggravating factors. We take note that the condition of the vehicle did not in fact contribute to the accident and that the previous motoring offences cannot have been of the most serious kind. The learned judge did not analyse which category this driving fell into. We consider that it was in the most serious category.

Of the mitigating factors listed by the court in Cooksley (in paragraph 15), the following were relevant:

“(d)

genuine shock or remorse (which may be greater if the victim is either a close relation or a friend).

the offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence) …”.

The helpful submissions of counsel concentrated on the arguments that the sentence did not take sufficient account of the shock and remorse, and particularly of the age of the Appellant and the evidence that he showed clear signs of changing his attitude and behaviour after committing the offence during a period when he had gone off the rails.

Counsel referred us during the hearing to a single previous decision of this Court: R. v. Dunne [2005] EWCA Crim 1269. That case undoubtedly has similarities to the present case, but we had unfortunately not received advance notice of the intention to cite it and we decided to take time for consideration to provide an opportunity for further consideration of other cases.

Dunne was a case of causing death by dangerous driving by a youth who had been 16 at the time. He drove without a licence or insurance a relative’s car taken without permission (and in that connection pleaded guilty to aggravated vehicle taking whereby a death was caused). Despite a warning from a passenger he drove at excessive speed on a bend and lost control. One passenger was killed, another seriously and permanently injured. The Appellant left the scene before the police arrived. He was convicted after a trial. The judge described that appellant as arrogantly claiming to be a good driver and having been showing off. Pre-sentence and psychological reports indicated a troubled and disturbing home life and long-standing learning difficulties. He was of previous good character, although he accepted that he had driven illegally on earlier occasions, and he showed remorse.

Dunne was sentenced to four years’ detention, the judge having observed that the only real mitigation was his age. This Court did not regard the sentence as manifestly excessive as a matter of principle for the offence, but having turned to the mitigation it reduced the sentence to three years because of the overall strength of the mitigation, “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 …”.

Each case differs. The present case involved more prolonged bad driving and the element of competitive driving, but no attempt to avoid justice by leaving the scene. The present Appellant had fewer personal difficulties and was not of good character, but the advantage, we think, of signs of putting his life in order, albeit somewhat belatedly. Although the present case is clearly more serious that Dunne, we have thought it appropriate to look carefully at the sentence of five years, bearing in mind the age of this Appellant. While clearly Dunne turns on particular facts, we should not wish to exhibit an inconsistency with another carefully considered judgment of this Court.

Since the decision in Cooksley, the Sentencing Guidelines Council in its guideline Overarching Principles: Seriousness, listed (in paragraph 1.25) as a factor indicating significantly lower culpability “Youth or age, where it affects the responsibility of the individual defendant”. That is not a new principle. We recognise that a lengthy custodial sentence may bear more severely on a defendant of 16 than on someone older. We also recognise the particular importance of rehabilitation, if that is possible, of a youth of that age.

However, we have looked at other cases involving defendants of a similar age. Sentences of similar length have been upheld for bad cases even where the appellant was 16. One example is R. v. Foster [2003] 1 Cr.App.R. (S) 547, where a sentence of five years on a plea of guilty was upheld on an appellant aged 16 at the time of the offence, after a moderately persistent course of bad driving during a police chase. In a somewhat less serious case than this, R. v. Akhtar [2004] 1 Cr.App.R.(S) 463, three years was upheld on a 16-year old, after a plea of guilty. In both those cases the appellant was of good character and showed remorse.

It is unfortunate that Dunne was cited to us late and in isolation. We conclude that the decision on appeal in Dunne was particularly influenced by the court’s view of his unusual personal circumstances, as revealed in the reports prepared in that case. It follows that to uphold the present sentence would not be to reach an inconsistent conclusion. This was a bad case. It was a severe sentence on a youth of 16, but it cannot be said to be manifestly excessive. The sentence on an older defendant on the same facts would have been longer. It took sufficient account of his age and the mitigation available. The appeal must be dismissed.