R v Gavin Prodger

This appeal is brought with the leave of the Single Judge. On 4 September 2023, in the Crown Court at Maidstone, the appellant pleaded guilty to causing death by careless driving when over the prescribed limit for drugs (counts 2 and 3 on the indictment) and one count of possession of a Class A drug (count 4 on the indictment). The Crown accepted these pleas and no evidence was offered against the defendant on count 1, which was causing death by dangerous driving and a not guilty verdict was entered in respect of that count. The pleas were entered after the pre-trial and preparation hearing and before the case was listed for trial.

On 23 October 2023, the appellant was sentenced by HHJ Statman on count 2 to an extended sentence of 14 years, comprising a custodial term of 12 years and a further 2 years extended licence. The same sentence was imposed in respect of count 3 to be served concurrently and a concurrent sentence of 12 months' imprisonment was imposed on count 4. On counts 2 and 3 the appellant was disqualified from driving for 17 years, being a discretionary period of 8 years and an extension period of 9 years until the passing of an extended test. Deprivation orders were made for the drugs and an Audi car and the victim surcharge was imposed.

This is a tragic case in which Lily Lockwood, who was a child aged 10 years old, was killed by the appellant's careless driving when he was under the influence of drugs. That has caused untold devastation to Lily's family, friends and all those who loved her. On 10 July 2021 at 6.50 pm, 10-year-old Lily Lockwood was waiting to cross Watling Street in Dartford, Kent. The appellant was driving his Audi A1 along Watling Street on the opposite side of the road towards where Lily was standing. CCTV shows Lily looking both ways and then running across the road just after a white van had passed on her side of the road. It then shows the appellant's car colliding with Lily at 6.52 pm. The speed limit in Watling Street was 30 miles per hour. Analysis of the CCTV evidence established that before he reached the point of collision the appellant was travelling between 44 and 47 miles per hour. The emergency services were called and Lily was treated by fire fighters until medical assistance arrived and she was taken to hospital. She had suffered catastrophic injuries and notwithstanding all that was done to save her life she died on 12 July 2021.

The appellant remained at the scene following the collision. He was described by one witness as "screaming and panicking and foaming from the mouth" and by another as being drunk. When the police arrived an officer found him sat on the ground near to the open driver's door of his car. The officer said that the appellant was difficult to understand but recorded that he said "I saw her flying through the air. She came out straight in front of me, no warning, no nothing. I didn’t even brake. Look, is there any skid marks? She was there, just there. I am shaking now." The appellant then told the officer what he said had happened. When the officer seized the appellant's phone, he said he had not been using it.

The appellant was arrested by the police as a result of a preliminary impairment test in which he performed poorly. He was taken under arrest to hospital. He provided a sample of blood 5 hours after the collision, which on analysis was found to contain 68 micrograms of cocaine per litre where the legal limit was 10 micrograms and 1600 micrograms per litre of benzoylecgonine, a breakdown product of cocaine where the legal limit is 50 micrograms per litre. Subsequently the police found 57.8 grams of cocaine in the passenger footwell of the appellant's Audi.

When interviewed by the police on 11 July 2021 the appellant said that he had not seen Lily before the collision. He denied speeding or using his mobile phone. He said he had no problems with his sight and only wore glasses for reading. At a further interview on 14 January 2022, he made "no comment" to all questions put to him.

A report by Dr David Berry, a clinical and forensic toxicologist, stated that the simulate effects of cocaine usually started about 10 minutes after consumption and persisted for 30 to 60 minutes. Dr Berry estimated that with the reading of cocaine in the appellant's system 5 hours later it was likely his reading at the time of the collision would have been 2000 micrograms in a litre of blood. This would have meant that the appellant had consumed a substantial amount of cocaine immediately before driving which would have had a severe adverse effect on his driving at the time of the collision.

The forensic collision expert instructed for the prosecution, having assessed the CCTV evidence "was of the opinion that the appellant's reaction time was impeccable and that he could not have reacted any faster than he did". The weather and visibility were good, the road surface was dry and the appellant's car was in proper working order.

When the appellant's mobile phone was examined there was evidence that he had been using it while driving right up to the point of collision. While it was not the prosecution case that he was holding his phone, as there was evidence it was connected to a Bluetooth device, the appellant had to look at and touch it to make the call and to open applications, select photographs and recipients and send photographs.

The appellant's optician and a consultant ophthalmologist at St Thomas's Hospital both stated that his eyesight was not good enough for him to be able legally to drive. Two weeks before the collision on 26 June 2021, the appellant had had a routine eye test. Without glasses the appellant's eyesight did not meet DVLA standards for driving and he might not have met the standard of glasses. While examining him the optician found the optic nerve in his right eye was swollen and told him he should attend hospital that day. However, he did not do so. He did attend the hospital on 2 July 2021 but left without waiting to be seen for assessment. Subsequently, on 24 July 2021 and 13 September 2021, the appellant drove a vehicle when over the prescribed limit for cocaine and he was charged with those offences on 18 October 2022.

We now turn to the sentencing hearing. The appellant was 53 years old at conviction and had no previous convictions. The judge was provided with detailed Sentencing Notes from the prosecution and defence. He was also provided with a pre-sentence report and psychiatric evidence in relation to the appellant. The judge was provided with victim impact statements from Lily's mother, stepfather, grandmother and sister, all of which were read to the court. At the start of his sentencing remarks the judge took great care to address Lily's family and acknowledged how difficult and emotional the sentencing hearing was as they had to look back to events in 2021. There was nothing that he could say that would give them any comfort for their loss. The judge then turned to the facts of the case. He said that based on the expert evidence there was agreement between the parties that the appellant could not have reacted any faster than he did. The judge said that the amount of cocaine and the benzoylecgonine (a product of cocaine) in the appellant's blood was substantially over the legal limit and he concluded that the appellant's use of cocaine substantially aggravated the speed he was driving at. The judge found that the appellant knew that he could not see properly as he had been to Specsavers and had been referred to hospital in relation to his eyesight and that it was not contested that without his glasses the appellant did not effectively meet the required standard to drive.

The judge said that he had been told that even with glasses there was a real possibility that the appellant would not meet the appropriate standard for driving. The judge said that he bore in mind that in the moments before the appellant collided with Lily he had been using his mobile phone.

The judge then referred to the following matters of mitigation. The appellant's late guilty pleas to which he was entitled to 15 per cent credit, the appellant's letter of remorse and the letters written by his parents. The judge also had regard to a psychiatric report prepared by Dr Waheed and the appellant's GP records and said that, although this was not a case to which the Sentencing Council Guideline in relation to sentencing offenders with mental disorders applied, he did bear in mind that the appellant had some difficulties with his mental health and had attempted to take his life.

As to remorse the judge said that:

The judge noted that at the time the offences were committed the maximum sentence for counts 2 and 3 was 14 years' imprisonment, although that had subsequently been increased to one of life imprisonment. The judge made it clear that although there were revised guidelines which he could look at with care, he approached sentence on the basis that the maximum sentence was one of 14 years' imprisonment. The judge then referred to the Sentencing Council's Guideline, Causing death by careless driving when under the influence of drink or drugs. In the guideline culpability A is described in these terms:

The judge determined that, in relation to culpability, two category B factors applied, namely driving at speed that is inappropriate for the prevailing road or weather conditions and driving impaired as a result of a known medical condition and/or in disregard of advice relating to the effects of medical condition or medication (whether the medication does not form the basis of the offence). The judge concluded as follows:

The judge identified the fact that Lily was a 10-year-old child as an aggravating factor. The personal mitigation the judge referred to was that the appellant had no previous convictions and his mental health together with his guilty pleas. The judge then determined that the appellant was dangerous and he did so based on the pre-sentence report and all the other evidence before him. The judge said that the report indicated that the appellant had very little victim empathy. He had a long usage of both drink and drugs. The probation officer's opinion was that the appellant was not at a stage where he was able to take responsibility for his actions and that he had a disregard for the safety of the others which the judge said was particularly evident in the light of the subsequent driving convictions.

The pre-sentence report indicated a high likelihood that the appellant would commit offences within the next 2 years and that there was a high risk of these offences causing serious harm to the general public. The judge said that the probation officer had adopted a slightly different test to the one that he was required by the Act to consider, being a significant risk of serious harm in relation to further specified offences. The judge said that although its imposition for someone with no previous convictions was a last resort, he was satisfied in the circumstances that it was right and proper to impose a concurrent extended sentence on counts 2 and 3 of 14 years, comprising a custodial term of 12 years and an extended licence of 2 years. For possessing cocaine the sentence was one of 12 months’ imprisonment concurrent.

We now turn to the grounds of appeal. The appellant appeals on three grounds. First, the appellant's case was wrongly placed in category A in the sentencing guideline. Second, the starting point taken was too high, but third it was wrong in principle to impose an extended sentence. As to the first ground, Mr Dein KC for the appellant submits that the judge's analysis of the facts did not permit a finding that the facts of this case fall within category A. In particular, the judge did not make a finding of fact that the standard of driving was just below the threshold for dangerous driving; the culpability B factors identified by the judge were not extreme examples of culpability B factors; and the judge did not make any finding that they were. This therefore was a case which fell within category B of the guideline which has a starting point of 9 years and a category range of 6 to 12 years. The Crown submit that on the facts of this case the judge was correct to place this case in category A and he was entitled to equate an extreme example of category B factors with an aggregation of more than one category B factor, namely engaging in a brief but avoidable distraction, driving at 47 miles per hour in a 30 mile per hour zone and driving with eyesight which was far less than the DVLA minimum requirements.

As to the second ground the appellant submits that the driving itself did not show signs that the appellant was substantially impaired notwithstanding the quantity of drugs consumed and the expert evidence described his reaction time as "impeccable". The appellant remained at the scene, and that there were a conglomeration of mitigating features. Therefore taken together a starting point of 12 years, increased for aggravating and mitigating features to 14 years, which was the maximum sentence before discount for guilty pleas, was too high and manifestly excessive. The Crown maintain that the judge's approach to the determination of the appropriate sentence cannot be faulted.

As to the third ground, the author of the pre-sentence report thought that the appellant had been driving whilst disqualified. That was wrong. However, it was based on this mistaken understanding of the factual position that the probation officer disagreed with the statistical tool which placed the appellant as a low likelihood of committing a seriously harmful offence within the next 2 years and then assessed the likelihood of reoffending as high. The appellant submits that there was no proper evidential basis to find him dangerousand a determinate sentence would have met the justice of this case from all points of view. The Crown submit that the judge was entitled to find the appellant dangerous.

We recognise that in any case where there has been a death caused by careless driving the sentencing judge is inevitably presented with a difficult sentencing exercise. There is no doubt that the sentencing judge considered this case with great care and compassion. We can take the first two grounds together. We have considered the CCTV footage, all the papers in the case and the findings of fact made by the judge in his sentencing remarks. In relation to culpability the guideline explains the following:

Culpability is then divided into three categories A, B and C, with A being the most serious. Culpability A is described as "Standard of driving was just below threshold for dangerous driving and/or includes extreme example of a culpability B factor". Culpability B then lists five different factors. Culpability C is not relevant for present purposes.

The judge did not make any finding of fact that this was a case where the standard of driving was just below the threshold for dangerous driving. We consider he was correct not to do so. We also consider that the judge was correct to identify the two culpability B factors that he did, namely driving at a speed which was inappropriate for the prevailing road conditions and that the appellant's driving was impaired as a result of his poor eyesight. However, the judge did not find that on the evidence before him that either of these factors were extreme examples of a culpability B factor. Again, the evidence before the judge would not have justified such a finding.

Despite his level of intoxication the appellant stopped the car quickly. It is a crucial point that the agreed evidence was that the defendant could not have reacted any quicker than he did and it is the speed at which he was driving that is determinative of his culpability. There was no finding that this was just below the threshold for dangerous driving and in these circumstances it will be wrong to aggregate this with another culpability B factor, namely his poor eyesight and placed this in category A under the guideline. This was not therefore a case where on the evidence the standard of driving could be placed in culpability A.

We recognise that there may be cases where, under the generality of guidelines, the presence of several factors may justify moving up to a more serious category of culpability or harm. But this was not one of those cases. The starting point was therefore 9 years' custody with a category range of 6 to 12 years' custody and the starting point adopted by the judge of 12 years' custody was too high. We agree that the appellant's offending was aggravated by reason of Lily's vulnerability as a child and pedestrian. It was also aggravated to some extent by the possession of Class A drugs in the footwell of the car.

There is also the personal mitigation identified by the judge and having read the evidence placed before us, the appellant's attempts at suicide and decline in mental health show that what has happened has had a significant impact on him. We accept Mr Dein's submissions that this is a man who is appalled at what he has caused. The judge's finding that the appellant has not shown remorse is also inconsistent with the letters written by his parents to the court, which set out the impact of what their son has done has had on him and they say in clear terms that the appellant was full of remorse.

We consider that the aggravating factors outweigh the mitigating factors and that the starting point should be adjusted upwards to 10 years' custody to which there should be applied a discount of 15 per cent to give credit for the guilty plea. This gives a sentence of 8 years 6 months' custody.

In relation to the third ground, we have considered the evidence contained in the pre-sentence report. There was an important error in the pre-sentence report which fed into the probation officer's assessment that the appellant's further risk of reoffending was high. This was an important error as the appellant had otherwise been categorised as having a low likelihood of committing a serious harmful offence within the next two years. In these circumstances and given all the evidence about the appellant, we do not consider this justified a finding of dangerousness. Accordingly, we quash the sentence on count 2 and impose a sentence of 8 years 6 months' imprisonment. We quash the sentence on count 3 and impose a sentence of 8 years 6 months' imprisonment to be served concurrently to the sentence on count 2. On count 2 and count 3 the appellant is disqualified for driving for 13 years 8 months, being a discretionary period of 8 years and an extension period pursuant to 35A of the Road Traffic Offenders Act 1988 of 5 years eight months and until the passing of an extended test.