R v Bradley Cain

The applicant is now aged 27. On 4 October 2023, in the Crown Court at Maidstone, he pleaded guilty to one charge of causing death by dangerous driving and two summary offences, namely, failing to stop after a road accident and failing to report that accident. On 23 November 2023, he was sentenced by His Honour Julian Smith ("the judge") to ten years and ten months' imprisonment. The surcharge was correctly recorded by the Crown Court in the sum of £228.

The applicant's applications for an extension of time (298 days) and for leave to appeal against that sentence have been referred to the full court by the single judge.

On 2 September 2023, the applicant drove to the home of Harry Abbott, a friend of his, and the two men went to the Hopfest Festival in Faversham. They arrived at about 3.15 pm. They stayed there, drinking throughout, until around 8.30 pm. During that time Mr Abbott saw the applicant taking cocaine.

Mr Abbott took the applicant some of the way home and dropped him at a location that he had requested, although there was subsequently an abusive phone call from the applicant, complaining that he had not been taken all the way home. Despite that, the applicant was at home by around 9 pm.

However, for reasons which have never been cogently explained, the applicant then walked to Mr Abbott's house to pick up his car. The CCTV footage shows the applicant topless and plainly intoxicated. He arrived at Mr Abbott's house at about 9.20 pm. He drove his car off the driveway, scraping his own car along Mr Abbott's car as he left the drive. He then drove onto Church Road. He drove fast, erratically and without lights. He took a route which was not the obvious or natural route home. Again, he has never explained where he was going or why he was on that stretch of road.

Lisa Chapman was aged 28 and the mother of three children. She had attended a christening close by at the Charing Heath and Lenham Heath Memorial Hall. She had gone to get something from her car for her 3 year son, Billy, who was with her. Her car was parked on the other side of the road from the Memorial Hall.

A witness heard the loudly revving engine of the applicant's car as it approached. It was speeding toward where Lisa and Billy were. It was swerving and being driven erratically. Billy was in the road and Lisa, seeing the danger, grabbed him and threw him off the road and into the bushes to safety. However, tragically, she was left with no opportunity to save herself. She was struck by the applicant at speed and was thrown into the air. She suffered catastrophic injuries. Although Billy was found to be essentially unharmed, with just some cuts and bruises, he had been saved at the cost of his mother's life.

The applicant did not stop or even slow down. A driver approaching from the other direction estimated the applicant's speed shortly after the accident at around 70 mph. That driver had to swerve his own vehicle out of the way of the applicant's car. The applicant then ploughed his car into a road sign and abandoned it. The damage to the car indicated that it had been travelling very fast when the collision occurred.

The applicant fled to his home address nearby. When the police found him in his bedroom he was asleep, although he was covered in mud and dried blood and there was a very strong smell of alcohol in the room. He was arrested. He denied that he had been driving and denied that he had been involved in a collision. He was clearly in a drunken state. A back calculation suggested that there would have been more than twice the permitted alcohol level in his blood at the time of the accident. Further tests showed that he was twice the limit for cannabis and three times the limit for cocaine.

The following day the applicant again denied that he had driven his vehicle into Lisa Chapman and claimed no knowledge of the offence. Even when the police put to him various statements by witnesses and the CCTV footage, he continued to deny the offending and he made no comment to the particular questions put to him in interview. He pleaded guilty at the plea and trial preparation hearing.

The judge had extensive material before him at the time of the sentencing exercise. There were moving personal statements from Lisa's brother and father which leave the reader in no doubt about the lifelong pain and suffering caused to them by the applicant's offending. There was a pre-sentence report in which the author assessed the future risk of the applicant causing serious harm to the public as falling into the medium category. The report set out the relatively extensive history of the applicant's drug abuse, which had started at an early age and which had resulted, amongst other things, in a previous conviction for possession of cannabis. In addition, there were letters to the court, not only from the applicant, but from his mother, sister and grandmother, and other character references.

In his sentencing remarks, the judge outlined all the material that he had considered, together with the various sentencing guidelines that were relevant. The judge put the applicant’s culpability into category A of the relevant guidelines. He concluded that, had the applicant been convicted after a trial, the sentence would have been one of 14½ years' custody. He discounted that by 25 per cent to reflect the applicant's guilty plea, which reduced the sentence to one of ten years and ten months. He imposed no separate penalty for the offences of failing to stop and failing to report the accident, having taken those into account in sentencing for the principal offence.

The issue on appeal is straightforward. On behalf of the applicant, Mr Brown contends that in arriving at the notional term of 14½ years, the judge gave insufficient discount for the applicant's mitigation, including his age, his lack of previous relevant convictions, his remorse, the positive elements of his character that the judge found to be present, his determination to rehabilitate himself, and that the background to the driving had been impulsive and immature.

We note, therefore, that no point is taken on the judge's conclusion that this was an offence where culpability fell into category A, nor with the 25 per cent discount for the applicant's guilty plea.

Pursuant to the Sentencing Council guideline in respect of causing death by dangerous driving, the first step is to determine the offence category. The factors that indicate that culpability may fall within category A include many that are of direct application here. They include:

deliberate decision to ignore the rules of the road and disregard the risk of danger to others;

prolonged, persistent and deliberate course of dangerous driving;

driving while highly impaired by consumption of alcohol and/or drugs;

and speed significantly in excess of speed limit.

Often the presence of one of these factors will justify a finding of culpability in category A. Here there were no less than four of those factors present. The applicant knew that he was in no fit state to drive, but he drove anyway and killed an innocent woman by doing so. He was fortunate that Billy was not also killed, although he has of course been deeply traumatised by witnessing his mother's death. There were also other aggravating factors, including the applicant's decision not to stop after hitting Lisa Chapmam. Indeed, it is right to say that the applicant's conduct after he had crashed into Lisa Chapman was thoroughly reprehensible. It even extended to his persistent denial that he had anything to do with her death. This was, therefore, a very high category A case.

The maximum term for the offence of causing death by dangerous driving is life imprisonment. In accordance with the sentencing guidelines, the recommended starting point for a category A offence is 12 years' custody. There is, however, a recommended range of between eight and 18 years' custody.

In our view, a significant increase above the 12 year starting point was justified by reference, not only to the sheer number of culpability A factors, but also the other aggravating factors to which we have referred. These factors justified a significant increase above those 12 years starting point. Indeed, we consider that, prior to a consideration of the mitigating factors and the discount for the guilty plea, a notional term that was at or close to the recommended term at the top of the range (18 years) would have been justified in this case.

The remaining question for us is whether the mitigating factors should have led to a lesser starting point than the judge's 14½ years. We do not think so.

First, there is nothing to suggest that the judge did not take all the mitigating factors into account. In his sentencing remarks he referred to them all. Mr Brown properly accepted that that meant that this was all a question of the weight to be attached to those various mitigating factors.

Secondly, we consider that the mitigating factors in this case were not particularly compelling. The applicant was aged 25 at the time of his driving, so his age is hardly a mitigating factor. Moreover, in respectful disagreement with the judge, it seems to us that the applicant has at least one relevant previous conviction, namely the possession of cannabis. That is significant, not for itself but because it demonstrates that the applicant has been a regular drug user for over a decade. That was obviously one of the prime causes of this tragedy.

We accept the points made about the applicant's positive character and his belated remorse. Those do not weigh particularly heavily in the balance in this case because of the nature of the criminality, but we accept that those are mitigating factors which would have reduced the sentence.

However, we should make it clear that we reject the suggestion that this driving was somehow impulsive. The applicant had made the decision to go back to his friend's house to pick up his car, despite the fact that it must have been apparent to him that he was in no fit state to drive. When he got into the car, his intoxication would again have been apparent to him because of the damage he did to his own car when leaving Mr Abbott's drive, and yet he carried on driving. He drove too fast and erratically for some distance before he collided with and killed Lisa Chapman.

Finally, because we are of the view that a starting point before taking into account the mitigating factors would have been close to the recommended top of the range of 18 years, reducing that starting point to 14½ years demonstrates that the judge did give weight to all of the mitigating factors.

In the round our conclusion is this. This was an appalling case of causing death by dangerous driving. It had tragic and permanent consequences for Lisa Chapman and her family. The term of ten years and ten months' imprisonment was not manifestly excessive. On the contrary, we would suggest that it was slap bang in accordance with the guidelines.

In consequence, it is unnecessary for us to consider separately the question of an extension of time. We note, however, that no cogent reason has been provided for the lengthy delay in this case. It appears that the applicant changed his solicitors about nine months after he was sentenced, but it is trite law that that cannot ever be a good reason for such a lengthy delay.

Accordingly, for all those reasons, we decline to extend time and we refuse this application for leave to appeal against sentence.