R v Dhiya Al Maamoury

This is an appeal against a custodial sentence brought by leave of the single judge. The sentence was for a total term of 13 years 6 months' imprisonment and was imposed on 16 September 2024 at Wolverhampton Crown Court, on two counts of causing death by dangerous driving and two counts of causing serious injury by dangerous driving.

That bare recital is in itself sufficient to identify a tragic outcome of the driving in question. The lives of two young people have been lost. One, Liby Charris, was 16; the other, Ben Corfield, was 19. Of the two victims who were gravely injured, Ethan Kilburn was 21; the other, Ebonie Parks, was 20. Immensely moving victim personal statements of the families of all the victims and of the two victims who themselves survived were either read out in the court below or were read on the papers. This court has itself studied those statements, which detail the profound and irreversible impact of the events in question both on the victims who survived and on the families of all the victims. The loss, pain and heartbreak caused is incalculable. As the judge in the Crown Court rightly stated, no sentence that the court can impose can possibly put the clock back. Nor can any sentence be seen as an attempt to put a value on the loss of these human lives.

The facts, in outline, are these. On 20 November 2022, what was described as a "car meet" was arranged on social media. It seems that such meets had occurred locally before. The purpose of this particular meet was for drivers to cruise up and down roads in the Oldbury and Smethwick area to show off their cars (some of which had been modified) or to drive at speed or indeed, on occasion, to race. Numerous spectators would watch from the streets.

On the night in question the appellant drove a distinctive blue Nissan Skyline car which had a white bonnet. It had been seen in the area from around 2300 hours that night. There was CCTV footage of the car being parked in the forecourt of a Shell garage before driving off in convoy with other cars to the car meet. At that stage, the appellant had two adult sons in the car with him, he himself being the driver.

There had been some rain that night but the rain had eased off. The conditions at the time in question were said to be of good visibility although at the critical time the road had been described as damp. It may be observed that some 30 minutes before the ultimate collision, this being around 2300 hours, a witness, a man called Mr Hale, had noticed the back end of the appellant's vehicle "stepping out", that is to say swinging out as it went around a traffic island. This had caused Mr Hale to comment to a friend "that car looks lethal".

The appellant had in fact imported the Nissan from Japan some 18 months earlier. The car itself was well over 20 years old. It is said that the appellant and at least two of his sons had a shared interest in cars and mechanical engineering. At all events modification had been made by the family to the car. Those modifications included the addition of a 2.5 litre turbo engine, fresh injectors and pumps, the replacement of a radiator for a larger aluminium one and the addition of an intercooler to the engine. Further, the gearbox, brake pads and exhaust system had been changed. It is, however, to be emphasised that the vehicle was roadworthy and indeed had passed its MOT some 6 weeks earlier.

At a later stage following the meet the appellant drove the car on its own down one side of a dual carriageway. Having reached a roundabout he then drove the Nissan round it to come up on the other side of the carriageway. He was seen to accelerate causing the car tyres to spin. There was some available video footage of the incident and also eyewitness evidence. The crash itself was to occur some 200 metres away from the roundabout. It was in an area where there was a 40 mile per hour speed limit. The collision expert instructed subsequently was to determine that at this stage the appellant's vehicle had been travelling at average speeds of between 54 and 57 miles per hour. It was not disputed that the appellant, as he had come out of the roundabout, had deliberately very sharply accelerated so as to cause flames to come out of the exhaust. It was accepted that in doing this he was trying to show off to spectators who were watching. As he drove, the tyres lost grip with the road causing the car to steer towards the central reservation of the dual carriageway. The appellant tried to correct and overcorrected. The car then yawed clockwise and the vehicle was turned the other way, towards the footpath on the left of the road. The appellant then lost control of the vehicle completely and it crashed into the footpath and into pedestrians who were watching. It then went on to hit a brick wall causing part of it to collapse.

It seems that the police had in fact been trying to combat illegal street racing that evening and had issued numerous dispersal notices across the city although it was not suggested that the appellant himself knew that. In fact, police had been called to the area having received reports of street racing and, as it happened, arrived almost immediately after the collision had occurred. The carnage was then revealed. Sadly, two of those people had to be pronounced dead at the scene notwithstanding attempts to resuscitate them. So far as Ethan Kilburn was concerned he was taken to hospital. He had a left-side hip fracture and a fractured right forearm. He did not require surgery but had to use crutches for 3 months and undergo extensive physiotherapy. He has suffered flashbacks and inevitably there has been a profound psychological impact. Ebonie Parks was also taken to hospital. Her injuries included a collapsed right lung, fractures to various ribs, cuts to a kidney, a blocked artery, multiple fractures of her hip bone, a fracture to the lower left bone, a fracture to the left shoulder bone, a fracture to the thumb and fingers and lacerations to the skull and face area and elsewhere. She, following surgery, was in intensive care for 4 days and spent a further 17 days on a ward and thereafter had to use a wheelchair for some 6 weeks. She may never regain the full range of motion in at least one hand. Again, and unsurprisingly, the psychological impact has been profound. As it happened, the two sons of the appellant had shortly before the collision got out of the car and so the appellant at the critical time was on his own in the car. He himself was wholly unhurt in physical terms at the time of the crash. He was arrested at the scene and interviewed. When asked questions he was less than frank as to what had happened.

The appellant is a man in his mid-50s. He was of previous positive good character, having no previous convictions of any kind. Strong personal character references were put in on his behalf. He had just one prior endorsement for exceeding the 30 mile per hour speeding limit on one occasion. Further mitigation was advanced to the effect that he had caring responsibilities for his ill wife and for one of his sons. Regrettably the pre-sentence report that was prepared identified no true remorse on the part of the appellant at that time. It was stated in the pre-sentence report that the appellant focused on the predicament in which he found himself and did not focus on the consequences of his actions. This perhaps is to be added to the fact that he had not been frank in interview and indeed had maintained a plea of not guilty up until the door of the court. However, Mr Balbir Singh, counsel on his behalf, has assured us that the appellant does indeed feel true remorse for what he has done. It may be that, as the judge said, the appellant was at that time not able to recognise the true horrors of what he had caused - we hope he does now.

Much of the debate before the judge and much of the debate before us has focused on the Sentencing Guidelines applicable to offences of causing death by dangerous driving and to offences of causing serious injury by dangerous driving. The maximum sentence for causing death by dangerous driving is, under the amended legislation, life imprisonment. The maximum sentence for causing serious injury by dangerous driving is 5 years' imprisonment. Those guidelines relate to one particular offence. The guidelines for assessing culpability are in effect the same for causing death by dangerous driving and for causing serious injury by dangerous driving. The highest category of culpability under the guidelines is culpability A. Any one of the identified factors is capable of bringing the driving into that level of culpability. A number of those factors, as set out in the guideline, demonstrably are not present in this case: for example, intoxication or evasion of the police. But some at least had prospective application. These are as follows:

Some attempt was made before the sentencing judge, and was maintained before us, to persuade the court that this was a category C case. We, as did the judge, regard that as wholly untenable. One only has to consider the circumstances of this case to assess that the appellant was at the least driving at an inappropriate speed for the conditions and further that the standard of driving was very much beyond being simply "just over" the threshold for dangerous driving. We therefore reject that particular point at the outset.

Under the guidelines the starting point for one offence of causing death by dangerous driving where category A culpability is involved is 12 years' custody, with a sentencing range of 8 to 18 years' custody. The starting point for one offence of causing death by dangerous driving where the culpability is category B is 6 years' custody, with a range of 4 to 9 years' custody. As to causing serious injury by dangerous driving where (as accepted was the case here) the harm is at the highest level, the starting point, where the culpability is category A, is 4 years' custody, with a range of 3 to 5 years; and where the culpability is category B, the starting point is 3 years custody with a range of 2 to 4 years' custody.

In the Crown Court the prosecution had submitted that this was a culpability B case. In argument, however, the judge queried that, suggesting that this might be in terms of culpability a category A case albeit at the lower end, as involving an "obviously highly dangerous manoeuvre". That was then debated before the judge. At all events that in the result was the conclusion the judge reached. He, amongst other things, said this in the course of his sentencing remarks:

Having assessed those aspects, the judge necessarily also had to take into account the fact here of two counts of causing death by dangerous driving and two counts of causing serious injury by dangerous driving, which obviously had to be reflected in the overall sentence that was to be passed. Doing that, he indicated that the total sentence, had there been a trial, would have been 15 years' imprisonment. With allowance of 10 per cent by way of credit for the late pleas that resulted in the sentence of 13½ years' imprisonment imposed, achieved by a combination of concurrent sentences on each count and with counts 1 and 2 being taken as the lead counts.

We turn, then, to the submissions made to this Court. On behalf of the appellant Mr Singh argues that this sentence was excessive. He has, in essentials, three grounds. First, he says that the case was wrongly categorised in terms of culpability and in consequence the judge took too high a notional figure of 9 years. Second, he says that, even if the notional figure could be justified, an increase of 6 years to allow for the other counts was simply much too much. Third, he says that the judge unreasonably downplayed the mitigation available to the appellant, in particular his previous good character. He also submits that the judge had no basis for finding, as the judge appears to have done, that the appellant knew that there was a police presence and police concern before the fatal crash occurred.

In the course of his arguments, both written and oral, Mr Singh developed the following particular points, amongst others. This was, he submits, a single momentary incident of dangerous driving, which did not last over a sustained period of time or length of road. There had been no racing and there had been no evidence of any aggressive driving beforehand. He stresses that no harm was foreseen or intended; and he says it was a hideous mischance that the victims were standing as bystanders on the pavement at that particular spot. He goes on to submit that the acceleration of the car away from the roundabout could not be considered an "obviously highly dangerous manoeuvre", albeit he necessarily accepts that it was deliberate and it was done with a view to showing off. It is also true, as he accepts, that the speed was significantly in excess of the applicable speed limit; but again he says that this was over a relatively limited period of time and distance. Moreover, the crash itself was occasioned when the appellant had tried unsuccessfully to correct the initial skid. He also adds that the appellant had previously driven a car in the preceding months without any issues or accidents.

Overall, he says, that whilst the material cause of the incident was the appellant’s loss of control occasioned by the combination of speed and acceleration, he says that, in terms of culpability, if this case was not to be put within category C then it should be put in category B and not in category A. In any event he argues, as we have said, that the uplift the judge gave for the other counts in the indictment could not be sustained, given that everything that occurred arose out of one incident.

For the prosecution Ms Heeley KC supports the judge's reasoning and the judge's conclusion: which she says were properly open to the judge. Whilst the prosecution had below suggested that this was a culpability B case, she submits that the judge was entitled to take a different view and to find that this was a category A case for the reasons he gave. She emphasises that attention must be given to the context in which the dangerous driving occurred as well as to the actual dangerous driving itself. Further, she stresses that in accelerating away from the roundabout at speed the appellant had acted deliberately and with a view to showing off. Moreover, in doing as he did and in significantly exceeding the speed limit he knew that there would be spectators and pedestrians watching nearby. Overall, she submits that the judge's approach was justified and that at all events his notional figure of 9 years could not be faulted. She further goes on to submit that an increase to 15 years before credit for plea properly reflected the fact that here there were two deaths and two seriously injured other victims. Thus, she argues, this sentence cannot properly be described as manifestly excessive.

We turn to our decision on the matter. As we have already indicated, we put to one side the suggestion that this was in terms of culpability to be assessed as a category C case. Further, as to mitigation the judge did have regard to the appellant's previous good character and caring responsibilities. But he was, in the circumstances of this case, in our judgment, entitled to give relatively limited weight to such factors. We also do not regard the judge's finding that the appellant was aware of police presence prior to the crash to be of significance. What was of significance was that the appellant clearly knew what a "meet" involved and knew that at the time he was deliberately showing off in accelerating as he did.

We can accept that whilst the circumstances here present in various respects come close to constituting various of the factors set out in culpability A none squarely or obviously does so. In particular, as to the judge's finding that this was an "obviously highly dangerous manoeuvre" we accept that that can indeed be queried. It is to be noted that, under the factor set out in the guideline, the manoeuvre required for the purposes of the guideline is heavily qualified. It not only has to be highly dangerous but also has to be obviously so. That raises the bar high. But all that said, we do not consider that that vitiates the judge's ultimate conclusion that a notional figure of 9 years was appropriate. Not only was what the appellant did, on any view, very dangerous, in circumstances of him knowing that there were spectators and pedestrians around, but he also was significantly in excess of the speed limit and was, even if not racing, showing off. Further, he was not in a modern high-performance car engineered and designed to accommodate high-speed acceleration but, as he knew, was in an older model which had been heavily adapted and converted; and which, as illustrated by the previous incident that had been witnessed by Mr Hale, at least had a tendency to swing or swerve if driven inappropriately.

We consider that the combination of all the circumstances in this case at the very least took this case to the cusp of culpability between category A and category B. As the bottom of the range for category A is 8 years and as the top of the range for category B is 9 years, we see no error in the end result in the judge selecting a figure of 9 years as he did - the more so, when, whilst allowing for mitigation, there were additional aggravating factors involved.

As to the judge's increase of 6 years from that starting figure to reflect the totality of the offending and the totality of the counts on the indictment, we can see no error in that either. Not one young person was killed but two. Not one young person was gravely injured but two. That necessitated a very significant uplift in this particular case; and we conclude that an increase of 6 years was one properly open to the sentencing judge.

In conclusion, of course it is to be accepted that the appellant did not intend to cause this harm; but he cannot escape the catastrophic consequences of his wilfully reckless driving in circumstances such as these. A sentence overall of 13½ years' imprisonment no doubt was on the severe side and certainly cannot be described as a "lenient" sentence. But there was no particular reason why the sentence should be lenient, given the circumstances of this case. In any event, that is not the question for this court. The question for this court is whether such a sentence was manifestly excessive. This court is of the opinion that it was not. Accordingly, we uphold the sentence and we dismiss the appeal.