Bennett, R v

MRS JUSTICE SWIFT: On 8th September 2008 at Worcester Crown Court the appellant pleaded guilty to causing death by dangerous driving. On 17th October 2008, before Mr Recorder Crigman QC, he was sentenced to 5 years and 4 months' detention in a young offender institution, with a direction under section 240 of the Criminal Justice Act 2003 that the one day he had spent on remand in custody should count towards the sentence. In addition he was disqualified from driving for 7 years and ordered to take an extended re-test. He appeals against sentence by leave of the single judge.

The appellant, who was 17 years old at the time of the relevant offence (he is now 18) and who had passed his driving test only 3 months previously, spent the evening of 8th May 2008 with his best friend, Kieran Powell. They went to a barbecue, then to a bar in Hereford and after that on to a nightclub. They were drinking throughout the night and, by the early morning, they were both said by witnesses to be drunk.

The appellant was driving. At about 2.30 in the early morning of 9th May, they left the club and made their way to his car. The intention was that he would drive Kieran Powell back to his father's home at Tillington, a short distance from Hereford. He drove along an A road and then turned left at a junction towards Tillington. While negotiating that junction, his car mounted a mini island in the centre of the road and knocked down a bollard on the island. The impact was sufficient to cause debris from the car and oil to be deposited at the scene. The rear nearside tyre of the car was damaged. Following that incident, the appellant continued on his way. Within 75 metres or so, the damaged tyre had deflated completely, making the car difficult to steer. It veered onto the nearside grass verge before, at a point about 370 metres from the traffic island, travelling on to its wrong side of the road, over the offside grass verge and colliding with a tree, causing the injuries to Kieran Powell from which he died. The appellant himself was rendered momentarily unconscious but was otherwise uninjured. The speed of the car on impact was estimated to be about 22 miles per hour.

The emergency services attended. The police spoke to the appellant, who failed a roadside breath test. He was taken to the police station and breathalysed again. His reading was 99 micrograms, the legal limit being 35. When interviewed he admitted that he had been drinking and said that he had little recollection of what had happened after leaving the club. He recalled walking back in the direction of his car, but he could not remember any of the journey. However, he accepted at that early stage that what he had done was wrong and accepted responsibility for his actions.

There was available to the Recorder a pre-sentence report, which recognised the likelihood of a custodial sentence. The appellant made clear to the author of that report that he accepted responsibility for his friend's death and wished to be punished for it. The author of the report assessed that there was a low risk of him re-offending provided that he moderated his alcohol consumption.

There were 12 character references available to the Recorder, which spoke highly of the appellant's capacity for work, his sporting abilities and his personality. They also stressed the very real remorse he feels for the consequences of his offending.

In sentencing the appellant the Recorder referred to the part in these tragic events played by the appellant's decision to drive at a time when he was nearly three times over the legal alcohol limit for driving. He observed that the impact with the traffic island and bollard should have been a shocking reminder to the appellant that he was wholly unfit to drive. However, he had chosen to ignore that warning and to drive on. Several metres down the road he had struck the nearside verge. The marks left on the road showed that his rear tyre had deflated. That would, the Recorder said, inevitably have affected the handling of the car and was a second reminder that he should have stopped. Yet still he had carried on. He had driven a further 250 metres before his car went out of control and crashed. In all he had driven for about a mile-and-a-half in that condition.

The Recorder concluded that the offence should properly be categorised as one falling within Level 1 of the Sentencing Guidelines Council's Definitive Guideline for Causing death by driving. The starting point for the sentence was, he said, 8 years' detention after a trial. That starting point must be increased to take account of three factors. The first of those was the fact that, just two weeks before this offence, the appellant had received a fixed penalty for being drunk and disorderly. The second factor was the extremely high level of alcohol in his blood and the third factor was the two warnings to which he had referred and which the appellant had disregarded.

The Recorder said that mitigating factors were the appellant's good character, his age, his lack of driving experience, the fact that the victim was his best friend, his genuine remorse and the fact that in every other respect he was a caring, hard working, honest youth. His aspirations to join the Army would be destroyed by the sentence he would receive. He had admitted responsibility and had pleaded guilty at an early stage for which he would receive a full discount.

We observe at this stage that cases such as this present judges with very difficult problems in sentencing. It is clear from the moving victim personal statements that we have read that Kieran Powell's family has suffered a devastating loss as a result of the appellant's offence. No sentence imposed by a judge can compensate them for that loss. It is not the purpose of the sentencing exercise to do so. Its purpose is to assess the extent of the offender's culpability and to pass a sentence appropriate to that culpability and in accordance with the relevant sentencing guidance. It is plain from the generous letter which has been written to this court (and which was not available to the Recorder) that Kieran Powell's family fully understand that. In their letter, they express the view that it is not in anyone's interest for the appellant to be in custody for any longer than is absolutely necessary. It is clear from those words that they support him in this appeal.

In this case, the relevant guidance is contained in the Sentencing Guidelines Council Definitive Guideline on Causing death by driving. The Guideline identifies the appropriate range of sentences for a first-time offender aged 18 or over convicted after a trial who has committed an offence falling within one of three of defined Levels of seriousness. Levels 1 and 2 are defined thus.

“Level 1.

The most serious offences encompassing driving that involved a deliberate decision to ignore or a flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others.

Level 2.

Driving that created a substantial risk of danger.”

The Guideline lists the factors that are likely to characterise a Level 1 offence. The factors of potential relevance to this case are:

“• A prolonged, persistent and deliberate course of very bad driving AND/OR

• Consumption of substantial amounts of alcohol or drugs leading to gross impairment.”

The relevant characteristics of a Level 2 offence include

“• Driving whilst ability to drive is impaired as a result of consumption of alcohol or drugs…”

The sentencing range for a Level 1 offence is identified in the Guideline as 7 - 14 years’ custody with a starting point of 8 years. The Guideline identifies various additional aggravating and mitigating factors to be taken into consideration when determining the appropriate level of sentence. One such aggravating factor is the disregard by the offender of warnings about his driving.

The mitigating features identified in the Guideline include the fact that the victim was a close friend or relative. They also include the fact that the offender's lack of driving experience contributed to the commission of the offence.

For the appellant, Mr Davidson does not dispute the decision by the Recorder to characterise the appellant's offence as a Level 1 offence for the purposes of the Guideline. However, he criticises his decision to increase the starting point of 8 years by reason of the three factors cited in his sentencing remarks.

As to the first of those factors (the fixed penalty for being drunk and disorderly) he contends that it should not have been taken into account since it was an isolated incident and unconnected with driving. As to the high level of alcohol, Mr Davidson submits that, by characterising the offence as Level 1 rather than Level 2, the Recorder had already taken the alcohol level into account so that it should not have been regarded in addition as an aggravating factor. So far as the two “warnings” were concerned, Mr Davidson suggests that a sober driver may have heeded those warnings and an experienced driver would have appreciated from the feel of the car that the rear tyre had deflated. Given the appellant's lack of experience and drunken condition, however, it is doubtful whether he would have done so. He suggested that the Recorder should not have treated the so called “warnings” as a further aggravating factor.

In his compelling submissions before us, Mr Davidson has argued that the Recorder failed to give sufficient weight to the appellant's genuine remorse at having caused the death of his best friend and to his lack of driving experience. In addition he submits that the Recorder failed adequately to take into account the appellant's age and good character and the personal mitigation available to him. He further prays in aid the letter from Kieran Powell's family to which we have already referred.

In considering the case we have available to us a prison report which describes the appellant as “pretty much a model prisoner”, who has recently acquired enhanced status and is taking advantage of the educational opportunities available to him. That report, together with the letter from the family, is material which was not available to the Recorder when sentencing the appellant.

We agree with the Recorder that the offence was properly characterised as a Level 1 offence and that the starting point for an adult first offender after a trial was 8 years. The judge expressly reminded himself that he must avoid “double counting” the high alcohol level by using it to determine the appropriate Level for the offence and in addition as an aggravating factor. However, he took the view that a distinction must be drawn between the offender whose level of alcohol was twice the legal limit and an offender whose level, like this appellant's, was almost three times the limit. We consider that he was entitled to take that view. We also consider that he was entitled, to the limited extent that he did, to take account of the recent fixed penalty for being drunk and disorderly which, as he pointed out, should have alerted the appellant to the fact that the consumption of alcohol to excess was liable to involve him in serious trouble. The incidents which occurred shortly before the fatal collision demonstrate just how dangerous the appellant's driving must have been. He cannot have been unaware of the collision with and virtual destruction of the bollard on the traffic island and his failure to stop then is, in our judgment, also capable of amounting to an aggravating feature.

The question then arises as to whether the Recorder took sufficient account of the very substantial mitigation available to the appellant. The most significant mitigating factor was his age. There was also his remorse at the loss of his best friend. The Recorder accepted that as genuine, as we do and, as it is plain from their letter, do the family of Kieran Powell. He was frank and honest from the first and has acknowledged the justice of any punishment that he might receive. There was then his lack of driving experience which, although not the prime cause of the collision, may have made some contribution. Finally, there was his character, to which a number of witnesses attested, and the effect of this offence on his own life, in particular the loss of his chosen career. In addition, we have the further information about his good conduct and progress in custody which do him credit.

The Recorder found in effect that the aggravating and mitigating factors cancelled each other out, resulting in a notional sentence of 8 years’ detention after trial and (having given him appropriate credit for his guilty plea) an actual sentence of 5 years and 4 months’ detention. In our view, having regard in particular to the appellant's age, the mitigating factors were such as significantly to outweigh the aggravating factors, with the result that the starting point used by the Recorder was excessive. In our judgment, the appropriate starting point would have been 6 years’ detention which, after appropriate credit for the appellant's guilty plea, would result in a sentence of 4 years. Accordingly we quash the sentence of 5 years and 4 months' detention and substitute a sentence of 4 years, less the one day spent in custody on remand. To that extent the appeal is allowed.