R v Daryll Henderson

MRS JUSTICE THORNTON: The applicant seeks leave to appeal a sentence of 10 years' imprisonment imposed as follows: for a count of causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988, 10 years' imprisonment; a second count of causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988, 10 years' imprisonment imposed concurrently, and for a third count of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988, a sentence of two years' imprisonment to be served concurrently, making a total of 10 years' imprisonment.

For the offences of causing death by dangerous driving the applicant was disqualified for 11 years eight months being a discretionary period of five years and an extension period of six years eight months and until passing an extended test.

The application has been referred by the Registrar to the full court.

The facts of the case may be summarised shortly as follows.

On 23 February 2023 the applicant was driving a car in which three friends were passengers. At about 2.55 am on the M25, CCTV cameras recorded the car moving from the outside fast lane of the motorway, across three lanes and onto the nearside of the road. Although the cameras did not record the collision, the applicant drove off the carriageway across the hard shoulder and onto the grass verge, colliding with fencing, lampposts and a tree at the side of the motorway.

Photographs of the car show significant damage, in particular to the front and the passenger nearside. Despite medical attention, two of the passengers, Jamie Baines and Mohammed Quereshi died at the scene. A third passenger Daniel King was taken to hospital and underwent emergency surgery for serious injuries, including internal bleeding, multiple fractures (including to the bones connecting his skull and neck), both lungs were punctured, and his spleen had to be removed.

The applicant was also injured and was taken by ambulance to hospital. A blood sample taken at 9.15 am the following morning, so approximately six hours after the accident, recorded the presence of the bi-products of cannabis (delta-9-tetrahydrocannabinol; THC) in excess of the legal limit, the breakdown product of cocaine, (benzoylecgonine; BZE) was also present above the legal limit. The applicant admitted to smoking a cannabis cigarette whilst driving.

The applicant was originally charged by postal requisition with four offences of causing death by careless driving while under the influence of a controlled drug, contrary to section 3A of the Road Traffic Act 1988 and with one offence of causing serious harm by careless driving, contrary to section 2C of the Road Traffic Act 1988.

On 25 June 2024 the applicant appeared before the Guildford Magistrates' Court. At court the charges were withdrawn and replaced by two charges of causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988 and one charge of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988.

The applicant pleaded guilty to the charges and was committed for sentence to the Crown Court.

On 19 November 2024 in the Crown Court at Guildford the applicant was sentenced, as previously referred, to a total sentence of 10 years' imprisonment and disqualified for a period of 11 years eight months and until passing an extended retest.

The judge opened her sentencing remarks by describing the case as a tragedy. The applicant was responsible for the deaths of two young men and for causing serious injury to a third man who whilst he had survived had suffered severe physical injuries and continued to suffer psychologically. At the time of driving the applicant had the by-product of cannabis and the breakdown product of cocaine in his bloodstream at levels in excess of the legal limit for both drugs. He had admitted smoking cannabis whilst driving and accepted he was in the habit of smoking six cannabis cigarettes a day.

The judge had previously adjourned the sentencing hearing for further evidence and submissions upon a discrete aspect of the relevant Sentencing Council Guideline, namely the difference between driving whilst highly impaired by the consumption of alcohol or drugs (which is a culpability A factor in the relevant guideline) and driving impaired by the consumption of alcohol and/or drugs (where not culpability A). That latter category falls within culpability B. In the event there was no material disagreement between the toxicologists.

The judge set out the position as agreed between the experts as follows:

The judge concluded that the applicant's driving was highly impaired and assessed culpability as within Category A with a starting point of 12 years' imprisonment and a range of eight to 18 years. For the same reasons, culpability in respect of the offence of causing serious injury was Category A and harm was Category 2 with a starting point of three years.

Aggravating features included the loss of two lives and serious injury to a third person, a previous conviction for a driving offence (albeit it was much less serious and the applicant had learnt his lesson from it). The judge said she would ignore the presence of the second drug in the applicant's blood because this had been taken into account in her assessment of the level of impairment of the driving.

Mitigation included genuine and heartfelt remorse, serious injury suffered by the applicant, who would have to live with the knowledge that he had caused the death of two friends (one of whom he was particularly close to), he was suffering from PTSD and depression, incarceration would affect his family (i.e. his partner and two children, one of whom was nine and one of whom was very young).

The judge awarded full credit for pleading guilty at the first opportunity and directed herself to have regard to the principle of totality in determining the final sentence. Considering the offences as one incident and weighing the aggravating and mitigating features led to a global sentence of 15 years' imprisonment after trial, reduced to 10 years to take account of the guilty plea in respect of each of the offences of causing death by dangerous driving, a concurrent sentence of 24 months (reduced from 36 months) would be imposed for the count of causing serious injury.

The applicant was disqualified for a period of 140 months for the offence of causing death by dangerous driving, comprising 60 months for obligatory disqualification (under section 34(4ZA) of the Road Traffic Offenders Act 1988) and an extension of 80 months pursuant to section 35A of the Road Traffic Offenders Act.

On receipt of the appeal against sentence the Registrar of this court identified the following errors in the proceedings:

The offence of causing death by dangerous driving is indictable only. It follows that the magistrates should have sent the charges for trial at the Crown Court pursuant to section 51(1) and (2)(a) of the Crime and Disorder Act 1988. There was no lawful power for the charges to have been committed for sentence as the magistrates purported to do at the hearing on 25 June 2024 and no lawful basis on which the applicant was sentenced on 19 November 2024 at Guildford Crown Court. The Magistrates' Court and Crown Court both acted without jurisdiction, and the proceedings were of no lawful effect.

The either-way offence of causing serious injury by dangerous driving was lawfully committed for sentence and the sentence in relation to that charge remains valid.

In addition, it is apparent from the transcript of the hearing that when dealing with disqualification the judge was clear that it "related only to the offences of casing death by dangerous driving". However, the court extract records that the disqualification was also imposed for the offence of causing serious injury. The parties have confirmed that there was no slip rule hearing at which its imposition was announced in open court and accordingly the sentence remains as announced by the judge (R v Leitch [2024] EWCA Crim 563, [2024] 2 Cr.App.R (S) 32) and therefore a disqualification does not and did not extend to disqualification for the offence of causing serious injury.

In order to correct the errors in relation to the counts of causing death by dangerous driving, this court (and constitution) reconstituted itself as a Divisional Court at a hearing on 25 June 2025. The court treated the applicant as having applied for judicial review of the proceedings in the lower court in relation to the two charges of causing death by dangerous driving and quashed the purported convictions.

One member of the constitution (Mould J) then sat as a District Judge pursuant to section 66 of the Courts Act 2003 in order to send the two counts for trial at the Crown Court. The applicant indicated his intention to plead guilty to the two counts.

At the Crown Court at Guildford on 1 July 2025 the applicant was re-arraigned on the two counts of causing death by dangerous driving. He pleaded guilty. He was then re-sentenced by the same judge in the same terms as at the sentencing hearing on 19 November 2024, save in relation to the period of disqualification for the offences of dangerous driving.

When dealing with the imposition of disqualification for the two offences of causing death by dangerous driving, the judge initially said that it was for a period of "60 months from that November sentence date, plus an extension of 80 months pursuant to section 35A of the Road Traffic Offenders Act 1988". Later, having been asked to take into account the time that had passed since originally imposing the total period of 140 months' disqualification on 19 November 2024, the judge announced that the disqualification was for "140 months less seven months and 12 days ... already served".

To the extent necessary, the judge directed that time served in custody since 11 October 2024 should count towards the re-sentence.

Following this re-sentencing exercise a notice and grounds of appeal was issued dated 1 July 2025 and referred to the full court by the Registrar.

The earliest date on which this court could hear the resumed appeal has been today, 22 July. Newly instructed Counsel on behalf of the Appellant, Ms Mawer appears today.

There are two appeals before us: the original appeal against the sentence imposed for causing serious injury by dangerous driving and the new appeal dated 1 July 2025 in relation to the two counts of causing death by dangerous driving.

The following grounds of appeal are advanced before us. The sentence is said to be manifestly excessive on the basis:

In oral submissions before us today, Ms Mawer has submitted that the evidence pointed to an impairment arising from a momentary lapse of concentration, rather than high impairment of driving. She had three primary submissions on this basis. First, the THC reading or the level of cannabis in the blood is not a reliable guide to the extent of the impairment. This, she said, was supported by authorities and the relevant Sentencing Council Guideline. Secondly, there was no evidence the applicant was suffering from the presence of drug products. Thirdly, the circumstances of his driving do not point to a high level of impairment, including he had driven 125 miles prior to the incident without any issues, eyewitnesses do not identify impairment in their evidence and finally the manner of the driving itself cannot form the basis for an assessment that the driving was highly impaired.

We are grateful to newly instructed counsel Ms Mawer for her preparation and for her clear, helpful and thorough submissions. She has said all that could be said in relation to the grounds of appeal on behalf of her client.

The relevant sentencing guidelines require the court to determine culpability by reference to specified factors. For culpability A the factors include: "Driving highly impaired by consumption of alcohol and/or drugs". Driving impaired by the consumption of alcohol and/or drugs where not culpability A falls into culpability B.

The judge adjourned the sentencing hearing to enable the production of expert reports to assist her decision-making and for further submissions in relation to the level of impairment of the driving. As matters transpired the toxicologists were in material agreement and the judge's sentencing remarks record a number of agreed propositions, as this ruling has already set out.

In our view the judge was entitled to conclude that the applicant's driving was highly impaired by the consumption of drugs. The by-product of cannabis and the breakdown product of cocaine were in his bloodstreams at levels above legal limits, approximately six hours after the crash. The applicant had admitted smoking cannabis whilst driving and was in the habit of smoking six cannabis cigarettes a day. The toxicology evidence was that cannabis can negatively affect a driver's vigilance and car-handling performance. Smoking cannabis, as the applicant had done, provides a rapid and highly efficient delivery of the drug from the lungs to the brain. In addition, the evidence was that at the time of the crash the applicant was coming down from the high of cocaine ingested 24 hours previously, the associated effects of which include exhaustion, fatigue and disorientation resulting in delayed reaction times, lack of co-ordination and poor decision-making. The effects are known to impair driving.

Alongside the evidence of the consumption of drugs the judge had evidence in relation to the applicant's driving. We have watched the footage of the car veering suddenly from the fast lane of the motorway, across the other lanes and disappearing off the side of the road across three different road surfaces. The cameras do not record the moment of impact when the car crashed into fencing and trees, but photographs show the car crumbled beyond recognition. This was a catastrophic loss of control of the car which can only be explained, as the judge found, by the applicant being highly impaired by his consumption of drugs.

We reject the submission that it was incumbent on the judge to adjust the starting point for culpability A because there was only one culpability factor present. The guidelines do not say this. Culpability A is reserved for the most serious cases of dangerous driving. In our assessment this was one of them.

Category A has a starting point of 12 years' custody and a range of eight to 18 years for a single offence and a single death. The judge had to balance the aggravating and mitigating features and to reflect the totality of the offending. The applicant's driving had caused two deaths and serious injury to a third person. The offences were aggravated to a minor degree by his previous driving-related conviction. The significant mitigating factors identified were taken into account by the judge but assessed as outweighed by the aggravating features such that an increase in the starting point from 12 years to 15 years in custody was justified.

We do not consider the judge's approach can be criticised. The judge expressly took account of totality, and the uplift still fell within the category range for a single offence and a single death.

The case law relied upon by the applicant does not assist. Sentencing is a fact-specific exercise. In any event the cases relied upon deal with single offences, and it is not said before us that the judge failed to reflect any factors relevant to sentencing in her assessment.

Accordingly, it is not reasonably arguable that a term of 15 years after trial reduced to 10 to reflect credit for plea was manifestly excessive.

For an offence of causing death by dangerous driving, disqualification from driving for a period of not less than five years, in the absence of special reasons (and it is not said here that there were any) was obligatory (section 34(4ZA) of the Road Traffic Offenders Act 1988). Pursuant to section 35A(4)(fc) of the Road Traffic Offenders Act 1988 an extension period equal to two-thirds of the sentence had also to be imposed. The applicant remains disqualified until passing an extended driving test by virtue of section 36 of the Road Traffic Offenders Act 1988.

Disqualification for a minimum period of two years and until passing an extended driving test for the offence of causing serious injury by dangerous driving is also obligatory (section 34(4)(a)(iia) and section 36 of the Road Traffic Offenders Act 1988). On its own, the extension period to be applied is half the sentence imposed (section 35A(4)(h) of the Road Traffic Offenders Act). However, pursuant to section 35B of the Road Traffic Offenders Act, the court is required, to consider the diminished effect of disqualification as a distinct punishment in a case where the person disqualified is also subject to an immediate custodial sentence for another offence and at its discretion to apply an uplift period to the disqualification.

The purpose of disqualification is to protect the public as well as punishing and deterring offenders. The Parliamentary intent behind sections 35A and 35B of the Road Traffic Offenders Act is to ensure that the appropriate period of disqualification should be served in the community rather than when an offender is in custody. Whilst there is a judicial discretion under section 35B of the Act, ordinarily a judge would be expected to give such an uplift, such uplift as to cause the disqualification period all to be served upon release (R v Needham) [2016] EWCA Crim 455, [2016] 2 Cr.App.R (S) 26 at [25-31]).

At the re-sentencing on 1 July 2025 when dealing with the imposition of disqualification for two offences of causing death by dangerous driving, the judge stated that the disqualification was for "140 months less seven months and 12 days ... already served". However, neither section 34(1) or section 35A(4)(fc) of the Road Traffic Offenders Act permits a reduction respectively of the qualification period or the extension period. The same result could however have been achieved in the Crown Court by directing pursuant to section 384 of the Sentencing Code that the sentence imposed on 1 July 2025 takes effect from 19 November 2024.

It is necessary for this court to correct the error in this regard which we have the power to do pursuant to section 29(4) of the Criminal Appeal Act 1968 by directing that the sentence takes effect from 19 November 2024. The length of the disqualification remains as imposed by the judge, namely 140 months comprising 60 months with an extension period of 80 months.

In addition, the judge fell into error in not imposing disqualification for the offence of causing serious injury by dangerous driving. We have considered whether we are precluded by section 11(3) of the Criminal Appeal Act from correcting the error. Section 11(3) provides as follows:

We have come to the view that we are not so precluded from imposing the disqualification, provided the length does not extend beyond the period imposed for the offences of causing death by dangerous driving in circumstances where concurrent custodial terms were imposed for each of the three counts.

Accordingly, applying the relevant statutory provisions and the checklist at paragraph 31 of Needham, we impose a disqualification period of 24 months pursuant to section 34(4)(a)(iia) of the Road Traffic Offenders Act and an extension period of 12 months pursuant to section 35A(4)(h) of the Act (being half of the 24-month custodial term imposed). Exercising our discretion under section 35B of the Act we consider that the appropriate uplift is 68 months, making a total disqualification period of 104 months. This will ensure that on release, having served two-thirds of the 10-year sentence for causing death by dangerous driving, the applicant will be disqualified for a further 24 months which constitutes the obligatory disqualification under section 34 of the Road Traffic Offenders Act. The applicant will remain disqualified until passing an extended driving test.