Gutierrez-Perez, R v

LORD JUSTICE AIKENS: This is the judgment of the court to which all have contributed.

On 3rd December 2008 in the Crown Court at Snaresbrook the appellant pleaded guilty to causing death by dangerous driving. On 7th January 2009 the appellant was sentenced by His Honour Judge King to a sentence of seven years' imprisonment. The appellant was also disqualified from driving for a period of 10 years and thereafter until she passed an extended driving test. The 109 days spent in custody on remand were ordered to count towards her sentence.

This is an appeal against that sentence with the leave of the single judge.

The facts of this tragic case are chilling. At about 3.00 pm on 18th September 2008 a DVLA official was checking tax discs on cars in Chingford, Essex. He came across the appellant 's Toyota 4x4 vehicle and he saw that it had no up-to-date tax disc on it. He also noted that it had a defective tyre, in the sense that it appeared to be considerably deflated. The official called for a recovery vehicle to remove the offending car. The official continued to check other vehicles in the locality.

He returned to the 4x4 vehicle about 15 minutes later. By this time the recovery vehicle had arrived and the appellant was sitting in the Toyota. The DVLA official went up to the 4x4 and told the appellant that she could not drive the car because it was untaxed and it was due to be removed. She did not reply, but the official noted a strong smell of alcohol coming from her. The appellant started the car engine. This time the official told her that she could not drive because she was drunk. The appellant made no reply and reversed the car into a car parked behind. The official remonstrated with the appellant by saying that she had struck the car behind. Her response was simply to say, "Report it". She pulled out and drove off.

The 4x4 car weaved its way down the road. When it reached the end of the road a neighbour saw the car and the appellant and described the appellant as "staring straight ahead". The appellant swerved left into a second road where she hit some safety cones in the road. These got wedged under the car and were dragged along. The appellant then clipped some wing mirrors of cars and hit two parked cars, one of which contained a mother and her small child. That car shunted forward. The appellant then swerved into safety barriers before crashing into a school wall. Estimates of her speed put her at least to some extent in excess of the speed limit.

This was all taking place at about 3.30 pm, ie at a time when school children were being let out of the school and parents were gathering to meet them. One parent was Mrs Tina Woods. She had her two children with her. Her four-year-old son, Harvey, had run on ahead to the school gates. Her 14-month old baby son, Finlay, was being pushed in a buggy by his grandmother, (Tina's mother). Tina was hit from behind by the appellant's car and the buggy, with the baby in it, was swept under the wheels of the car and then wedged underneath the car between broken gate posts. The buggy and Finlay became trapped in that position.

A number of passers-by and school staff ran to assist. The appellant was pulled out of the car. She appeared dazed and bewildered. The car was eventually lifted up and Finlay was pulled free. He had clearly suffered very serious injuries. Although a passer-by performed CPR emergency treatment on him and he was taken off to hospital very quickly, he was declared dead at about 16.20 that afternoon.

The appellant was arrested at the scene. She told the arresting officer that she had consumed two bottles of cider about an hour prior to the incident. She subsequently gave a blood alcohol reading of 52 milligrams; the legal limit is 35 milligrams.

When the appellant was interviewed by the police about how much alcohol she had drunk she stated that she was going through a bad period in her life because her home and the restaurant she owned had been repossessed and her husband had been violent towards her. She said that she had thought about taking her own life and she had taken a number of sleeping pills. Then she had decided not to go ahead with the attempt on her life but to drive to hospital for help instead. The appellant said that she had no memory of the accident but she was remorseful when she found that she had killed a child. Further tests on her blood established that she had indeed taken sleeping tablets.

When Judge King sentenced the appellant he identified what he regarded as the aggravating features in this case. These were:

The judge noted the appellant's previous good character, but also commented that, on the evidence, she had little choice but to plead guilty. The judge accepted that the appellant was remorseful. However, we note that it appears that the appellant had not at the time of sentencing read the victim impact statement. The judge noted that the appellant had a background of depression and broken relationships. He stated that he took account of the matters said on her behalf in mitigation but that custody was inevitable. The judge noted that the effect of her actions had been devastating.

The appellant was born on 3rd November 1968, so is aged 41. Before this occurrence she was of previous good character. She had had a clean licence for approximately 20 years. A pre-sentence report dated 6th January recognised the inevitability of a custodial sentence. It said that the appellant was ashamed of her behaviour and was genuinely remorseful. There were three character references before the court.

We also now have a psychiatric report on the appellant dated 9th September 2009. It has been prepared by Dr Harty. The report suggests that it would have been appropriate to have obtained a psychiatric report at the time of the trial. It should be noted that the sentencing judge did canvass this possibility with counsel at the time of the sentence (Counsel then was not Mr Fielding, who has appeared for the appellant on this appeal). In the event a psychiatric report was not prepared at the time of sentencing. However, we do have a report. This confirms that the appellant was not in a state of non-insane automatism at the time of the accident, either as a result of her consumption of alcohol or drugs or a combination of the two. It also confirms her previous state of depression and that she was suffering from alcohol dependency syndrome at the time of the incident.

It is argued by counsel on this appeal that the judge failed to take sufficient notice of the mitigating factors that are in favour of the appellant. He emphasises the remorse of the appellant from the time immediately after the incident, at the time of the PSR and subsequently whilst the appellant has been serving her sentence. Mr Fielding emphasises that there was at no time any malice in the mind of the appellant. He records, correctly, that her driving licence was clean at that time and had been for many years. He also lay stress on the fact that there was no psychiatric report before the judge, although, we should add, that was through no fault of the sentencing judge.

Mr Fielding submits that the contents of the psychiatric report are important. He emphasises that the appellant was living in extremely poor and distressing personal circumstances at the time of the incident. These were so bad that she had even considered taking her own life. Mr Fielding emphasises that there is no likelihood of reoffending.

Mr Fielding rightly recognises that each case of this nature is very fact dependent and he does not urge upon us in particular the facts of any other cases but does urge on us the remarks made by this court in R v Martin.

We have considered these submissions with care. This is a case where the consequences of the dangerous driving were horrifying. Nothing any court can do by way of sentence will ever start to reflect the value of the life of the very young helpless victim that has been lost. Nor can any sentence make up for the devastation caused to the family of the deceased. But sentences are not to show revenge or to show outrage of society. They are society's means of imposing proper punishment and deterrence and of marking its collective abhorrence at the crime that has been committed.

We consider that the sentencing judge correctly identified the six aggravating factors and all the mitigating factors present in this case. We have looked very carefully at the Sentencing Guidelines Council guidelines on "Causing Death by Driving". In our judgment this case falls squarely within Level One. Level One is, we emphasize, the highest category in terms of severity of offence. This means that in terms of sentence it produces the highest starting point for a sentence and the sentencing range is at the longer end of the possible sentencing range. The maximum penalty for this offence is 14 years.

When all the aggravating features and all the mitigating features are taken into account, in particular the fact that this was a first offence and that there was an early plea of guilty, we have concluded that the sentence in this case was absolutely correct. This court will only interfere with a sentence if it is wrong in principle or it is held to be manifestly excessive. In our view the sentence imposed was neither wrong in principle nor manifestly excessive.

This appeal must therefore be dismissed.