England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		10 June 2005

Friday, 10 June 2005

LORD JUSTICE GAGE:

1. This is an application by the Attorney General's under section 36 of the Criminal Justice Act 1988. The Attorney General seeks leave to refer to this court for review a sentence which is said to be unduly lenient. We give leave.
2. On 13 September 2004, the offender, Russell John Ellis, now aged 26, pleaded guilty to an offence of death by dangerous driving. Sentence was adjourned initially for a Newton hearing. In the event the offender abandoned his challenge to the factual basis for the sentence and on 6 December 2004 he was sentenced to a term of imprisonment of 18 months. He was disqualified from driving for a period of three years and ordered to pass an extended driving test. That sentence was passed at the Bristol Crown Court.
3. The facts are as follows. The offender was a lorry driver. On Thursday 21 November 2002, he started work at 8.30am. By the late afternoon he had driven 117 miles. At about 5.15pm he was returning back to his depot in Frome along the A361. The road has three lines and is subject to a speed limit of 40mph for heavy goods vehicles. It is a road with which the offender was very familiar; he used it on a daily basis.
4. In the area of Colemans Quarry the offender fell asleep at the wheel of his vehicle. Shortly before the accident other motorists had noticed the lorry drifting towards and over the white line dividing the carriageway. They had had to take evasive action to avoid a collision.
5. The deceased, Emma Kelly, was 20 years old at the time. She was returning home in her car, having finished work. Witnesses available to the prosecution provided statements to the effect that before the accident she had been driving carefully and observing the speed limit. As Miss Kelly approached the offender's lorry, which was driving in the opposite direction, his vehicle again drifted across the carriageway and on this occasion directly into the path of Miss Kelly's vehicle. The offside of Miss Kelly's car was destroyed by the nature of the impact. Miss Kelly suffered massive head injuries from which she died instantly. We have seen photographs of the accident damage. Another car travelling behind Miss Kelly's vehicle was forced to swerve onto the wrong side of the road to avoid a collision and potentially into the path of oncoming traffic. Happily, no further accident occurred.
6. The impact did not wake the offender. His lorry continued to drift across the road until it came to a stop at the bottom of an embankment about 100 metres from the point of impact. There was no sign of him having applied his brakes at any point before the lorry came to rest. A motorist who stopped to give assistance after the accident saw the offender was uninjured and searching for his mobile telephone. He said on more than one occasion, "The stupid cow just pulled out in front of me". Another witness thought that the offender looked dazed and sleepy.
7. Samples of breath taken from the offender were negative. Before handing his mobile telephone to the police officer he removed the battery and pulled out and snapped off some of the internal wiring of the device. At the scene he told the police, "I can only remember seeing the car and hearing a banging and ending up in the ditch".
8. Later at interview he said that he could give no explanation as to why the accident might have occurred.
9. Subsequent enquiries by the police revealed that the offender had spent the previous evening drinking until 11pm. During the course of what remained of the night, he exchanged text messages with his girlfriend until shortly before leaving for work. The telephone billing records show that he received messages at 2.32am, 2.34am and 3.36am. He sent messages at 2.34am, 2.38am, 2.49am, 3.37am and 5.35am. An examination of the tachograph from the offender's lorry showed that he had been exceeding the speed limit and travelling at speeds of 49-55mph until a point some 700 metres from the scene of the collision. The speed of the vehicle then fell back as it approached a bend in the road. From a distance of about 500 metres to the point of impact the offender had accelerated. When the collision occurred he was travelling at 45mph; his speed was increasing.
10. The mobile telephone records also disclosed that the offender had been using his mobile telephone whilst driving at various points during the day. The last call had been made at 4.51pm, 25 minutes or so before the accident.
11. The case was listed for trial on 13 September 2004. On the Friday before the trial, the offender indicated his intention to plead guilty. His plea was entered on a basis that was unacceptable to the prosecution and the case was adjourned for a Newton hearing. Shortly before that hearing the offender abandoned his challenge to the factual basis and indicated that he would accept the facts as they were subsequently opened to the judge.
12. There were a number of victim impact statements available to the court which set out the devastating effect of the loss of the life of Miss Kelly upon her family and her boyfriend. The latter had been so badly affected by the loss of his girlfriend's life that he attempted to commit suicide.
13. The offender himself was also affected by the accident. He was subsequently diagnosed as suffering from anxiety and depression. In 2003 he took an overdose of Temazepam and alcohol.
14. Apart from a driving conviction for exceeding the speed limit in a heavy goods vehicle, which occurred after the date of this incident, the offender is a man of completely good character and with no other driving convictions.
15. The Attorney General lays stress on a number of aggravating features. First, the offender was a professional driver and driving a heavy goods vehicle. Second, he was driving when knowingly deprived of adequate sleep. Third, this was not an instance of "momentarily falling asleep" whilst at the wheel; he was sound asleep, as is plain from the fact that he did not wake up until his vehicle had come to rest after the collision. Fourth, there were other instances of bad driving at or shortly before the time of the incident; as shown by the tachograph there were instances of him exceeding the speed limit and of him using a mobile telephone. Fifth, immediately after the accident he sought to blame the victim for what had occurred.
16. There are mitigating features also present. The offender pleaded guilty, although the plea was entered late and after he sought to challenge the factual basis for the sentence. So far as that is concerned, the recent case of R v Last and Others [2005] EWCA Crim 106, indicates a plea challenging the factual basis does not have the same effect as a plea of guilty accepting the full basis upon which the Crown rely. The offender has, as we have indicated, no previous criminal convictions and his mental health has suffered as a result of this incident.
17. Mr Laidlaw, on behalf of the Attorney General, has referred the court to the guideline case of R v Cooksley [2004] 1 Cr App R(S) 1 and also to the case of R v Porter [2002] 2 Cr App R(S) 222. It is necessary only for this court to refer to Cooksley. The Lord Chief Justice at paragraph 15 of the judgment set out the aggravating features for the highly culpable standard of driving at the time of the offence. Mr Laidlaw has laid stress on items (d), (f) and (h) under that heading. We consider that in this case the matters relied on under (d) and (f) are part and parcel in our judgment of (h), namely, driving when knowingly deprived of adequate sleep or rest. There is also a submission that this offender was guilty of irresponsible behaviour in the sense that he falsely claimed that Miss Kelly was responsible for the accident.
18. In passing sentence upon the offender the judge placed him in the intermediate category of seriousness, as set out in Cooksley.
19. On behalf of the offender Miss Reagan has made a number of submissions. It is submitted that the sentence was not unduly lenient. Alternatively, if this court finds that it was, it is said that it would be unfair at this stage to increase the sentence by reason of the fact that the offender has been told that he will be due for release shortly in September. Further, Miss Reagan relies upon the fact that there was a guilty plea, although not on the basis which he ultimately accepted. Stress is placed on the fact that the offender is of good character. He is a professional driver who relies upon driving for his living. There was, as is plainly the case, a substantial delay in bringing these proceedings. The offender was not notified of the prosecution's intention to prosecute him until twelve months after the accident. The hearing took place two years after the accident. Further, Miss Reagan has rightly laid stress on the fact that his health has been affected. He is remorseful for what occurred.
20. The starting point for the offence of death by dangerous driving is to be found in Cooksley. In our judgment the judge in this case placed this offender in the wrong category. Whilst Cooksley makes clear that the court must be astute to avoid double counting of aggravating features which are a necessary part of any particular category, in our judgment this case falls above the category of intermediate seriousness and into the next category of higher culpability. This offender must have known that he was deprived of adequate sleep and rest before he set out when driving. He must equally have appreciated this not only by virtue of what he had done the night before, but also because of the effect of the lack of sleep on the way in which he was driving before the accident. The bracket of higher culpability is four to five years, from which an appropriate discount for a guilty plea must be made.
21. In our judgment the sentence was unduly lenient. We would have expected a sentence in the region of four to five years, the upper end of that bracket, on a trial. The offender pleaded guilty but, as we have said, the mitigation afforded by a guilty plea is to some extent reduced by his refusal to admit the full extent of his culpability until close to the hearing.
22. Making allowance for all these circumstances, and particularly the matters placed before us in mitigation by Miss Reagan -- we take also into account the double jeopardy principle -- in our view the appropriate sentence now on this reference is a sentence of three years' imprisonment. We quash the sentence of 18 months and for it direct a sentence of three years. The period of disqualification will remain unaltered.
_____________________________