R v Frederick Rogers

This is an appeal against a sentence of 10 years' imprisonment passed on the appellant for an offence of causing death by dangerous driving. The offence was committed in June 2021, at a time when the maximum sentence for that offence was still 14 years' imprisonment.

The appellant entered his plea of guilty at a PTR, at a late stage of the proceedings, albeit before trial, and he was afforded an appropriate credit of 15 per cent for that plea by HHJ Chambers, the sentencing judge. That means that the notional sentence after trial was one of 12 years' imprisonment, which is the starting point for an offence falling within category A in the current Definitive Sentencing Guideline. Mr Bhatia KC, who appears today for the appellant, as he did in the court below, correctly concedes that it was appropriate for the judge to apply the current guideline and he also concedes that category A was the appropriate category because of a number of features to which the court will refer.

The incident occurred shortly before midnight on 23 June 2021, in a residential area on the outskirts of Wolverhampton. The appellant was driving a Volkswagen Golf car, and he had a passenger, a friend of his. He was travelling well in excess of the 30 mile per speed limit at somewhere between 56 and 61 miles per hour. He drove through a red traffic light and collided with a Ford Fiesta which had driven through an amber signal at the same set of traffic lights, also at high speed. The speed of the appellant's vehicle on impact was around 72 miles per hour. The Fiesta was driven by the co-defendant, Ethan Holness, who was 17 years old at the time.

There were two passengers in Holness’s car, James and Michael Sheridan, who were brothers. Neither of them was wearing a seatbelt, and the collision tragically caused the death of James Sheridan, the rear seat passenger. He was just approaching his 21st birthday. It turned out that the Fiesta had been stolen a couple of days previously and that Holness was implicated in the theft. It had fake registration plates attached to it.

Both drivers remained at the scene of the collision and spoke to the police. The appellant was responsible for calling the authorities in the first place. He submitted to a breath test at the roadside, which showed that he had a reading of 55 micrograms of alcohol per 100 millilitres of breath at that stage. That test was administered at 1.45 am and therefore almost 2 hours after the collision. The officers who spoke to him had noted that his eyes were glazed and that his speech was slurred. A drugs swipe taken from him showed a positive reading for cannabis. In interview he subsequently admitted that he had smoked a joint with a friend earlier that day when they had been celebrating a football match and relaxing together. The evidence therefore shows that, at the time when he was driving, he was impaired both by the consumption of alcohol and drugs.

Police officers, having spoken to both drivers, also spoke to witnesses of the collision. They examined the scene and they seized CCTV footage. The appellant was taken to hospital and there were subsequent blood tests which endorsed the findings in relation to the amount of alcohol in his system.

The judge in sentencing took the starting point in category A of 12 years' imprisonment after trial. He decided that this was a case of culpability A because he said there was a deliberate decision to ignore the rules of the road and to disregard the risk of danger to others. The appellant’s speed was significantly in excess of the speed limit and highly inappropriate. It was almost twice the appropriate level. He also said:

It means that there were three category A factors which the judge had identified: the deliberate decision to ignore the rules of the road and disregard of danger of others; driving significantly in excess of the speed limit, and what the judge described as something “approaching highly impaired” driving as a result of the consumption of alcohol and drugs.

On behalf of the appellant Mr Bhatia makes three points. The first point is that the starting point of 12 years was too high. Although he properly conceded that the appellant’s driving was enough to put the matter into category A, he submitted that the judge failed to take effective notice of the changes in the law and that although it was perfectly proper to apply the current Sentencing Guidelines, some downward adjustment should have been made. He suggested that this was not a prolonged course of dangerous driving as one sees in other cases but a single incident, and that there was a split second decision to jump the red lights which led to the tragic consequences we have described.

We are unable to accept those submissions. If the appellant was driving whilst significantly intoxicated for a period of time at 55 or 61 miles an hour, the decision to drive through the red traffic lights cannot be described as a split second decision nor as an isolated single incident. Therefore, there was nothing wrong, in our judgment, with starting the sentence in this case at 12 years.

Next Mr Bhatia submitted that there were very significant factors in relation to mitigation which the judge failed properly to take into account. There were no relevant convictions, and there was a third party involved, namely Holness (the driver of the other car) which was an unusual feature. Holness was also responsible for bringing about the death of Mr Sheridan. The appellant had stayed at the scene and phoned for the police and the ambulance service. There was genuine remorse which was reflected in the pre-sentence report. The appellant had a role of primary carer for his father who had suffered from a significant heart attack. Mr Bhatia therefore submitted that these factors, plus all the other personal mitigation which was referred to in the pre-sentence report should have led the judge to adjust the starting point of 12 years downwards by a significant level. Thirdly, Mr Bhatia submitted that there had been delay of some 14 months in charging the appellant. Whilst of course, any delay thereafter could not be prayed in aid there should nevertheless have been some adjustment for that.

It seems quite clear from the way in which the judge looked at the matter and structured his sentencing remarks that he did take into account all of the mitigating features. Although delay is not specifically referred to, the judge did round down the discount that he gave for the guilty plea and that was more than sufficient to take into account any matter of that nature, even assuming that 14 months’ delay in bringing charges could be regarded as something which would give rise to any mitigation at all. The judge plainly took the view that this was very serious driving offending and he was right to do so. The fact that somebody else was driving dangerously at the same time is not really an excuse for the appellant’s dangerous driving, nor does it afford mitigation of any substance.

The judge obviously would have considered that there were a number of culpability A factors and would have treated these as aggravating factors before adjusting downwards for the mitigating factors, which is why he ended up at a notional sentence after trial of 12 years' custody.

There is also a further feature to take into consideration. The judge looked at the appellant's previous convictions and considered that there was nothing relevant of any recent commission, and therefore he did not treat the convictions as an aggravating factor. However, it is quite clear from the pre-sentence report that after this incident the appellant had a further conviction for drug impaired driving, which suggests that he did not learn the lessons that he should have done from being involved in an incident of this nature. It would have been open to the judge to have treated that as a significantly aggravating factor but benignly he chose not to do so. In those circumstances, it seems to us that no criticism can be made of the judge's decision to reach a notional sentence after trial of 12 years.

We are of course encouraged to hear of the appellant's progress in custody. We were told this morning by Mr Bhatia that after 2 months he became an enhanced prisoner, that he is now working in the horticultural area of the prison grounds, and that he has completed five of the six courses that have been available to him to a high standard. That is very laudable and we wish him success in those continuing endeavours. However, none of those matters can really impact upon the question of whether the judge at the time reached a sentence which was manifestly excessive. One has to bear in mind that although there was somebody else involved in this dangerous driving, and that this was a very serious collision, on the facts this was one of the most serious types of case of its kind, and that had to be reflected in a commensurate sentence.

For those reasons, despite Mr Bhatia’s beguiling submissions, we dismiss the appeal.