England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 19th September 2006

1. MR JUSTICE TUGENDHAT: D.W., now aged 26, appeals to this court against a sentence of six years' imprisonment that was imposed upon him on 2nd February 2006 by His Honour Judge Stewart in the Crown Court at Leeds. On 20th December 2005 he had pleaded guilty in the same court to causing death by dangerous driving.
2. The facts of this case are described by this very experienced judge as "one of the worst pieces of driving I have ever come across at the Bar or on the Bench in a period spanning nearly 40 years".
3. The offence took place on 26th August 2005 at about 9.50 pm on the M62, near Selby. The deceased, S.L., and her husband were driving eastwards in a Fiat car when they were struck from behind by a Subaru Impreza being driven by the appellant. In the crash their car was propelled 170 metres down the motorway and the appellant's vehicle ended up in a ditch. Three other vehicles became embroiled in the collision and the motorway had to be closed.
4. At the time of the accident the appellant was driving at extremely high speed and had been driving at extremely high speed for some 50 miles beforehand, having started his journey in Manchester. When samples were taken, traces of cannabis were found in his blood.
5. The appellant left his workshop, where he was a self-employed car sprayer, near Sale. He agreed to give a lift to a 17 year old, D.D., with whom he worked. Before he got into the vehicle D. noticed that the appellant seemed to be acting in a bizarre manner, claiming that a crow was following him and talking to someone who was not there. At one stage he held up two metal bars in the shape of a cross.
6. Just after 9 pm they drove off. The appellant was not only driving at high speed, he was weaving between cars as he did so. At one stage he drove in circles in a car park. He started to say bizarre things like, "It's meant to be" and "I am the one". He then drove onto the motorway and was seen to weave between cars on the motorway. He was driving in the position where he was sunk very low in his seat with the steering wheel on his knees. He drove up behind other cars at speed and then either overtook them or took them on the nearside in a weaving motion. At one stage in the journey he told Mr D. to remove the lid of the glove box and hold it in front of his face as protection. Mr D. did this and then the appellant gave him a sheet of paper to hide behind. While doing these things the appellant expressed concern about whether the lorries on the motorway were on their side.
7. The appellant drove up behind the Fiat driven by Mr L. at great speed. Mr D. braced himself for an impact and remembered the appellant saying "This is it for me, Daz". He then drove straight into the back of the Fiat. The Fiat spun round and the other vehicles became embroiled. In the meantime, the appellant and D. got out of their car, which was in a ditch, and witnesses remember the appellant talking in a strange manner about triangles and circles.
8. The emergency services arrived and Mr and Mrs L. were cut out of their vehicle.
9. When the appellant was searched at the scene, he was found to have 16 grams of cannabis on his person. He was taken to hospital, where he was arrested and he volunteered to say "The person who slammed on in front of me is the dangerous driver, not me".
10. Witnesses to the appellant's driving before the impact estimated that he was driving in excess of 100 miles an hour. One witness to the collision stated he could see no brake lights on the appellant's vehicle prior to the impact.
11. Mrs L. died as a result of multiple injuries. Mr L. spent four weeks in intensive care having suffered a fractured back, two broken shoulders, seven broken ribs and he had to have his spleen removed.
12. The samples taken from the appellant reflected very heavy use of cannabis in the weeks leading up to the offence, but did not necessarily reflect direct intoxication with cannabis at the time of the crash.
13. In interview, the appellant stated that he remembered being at his workshop with Mr D. and feeling in fear for D.' life. At that point he told him to get into the car. He said he could remember nothing about the motorway journey until the collision and then he did not remember most of the events after that.
14. The judge had before him victim impact statements from Mr L. and his three children, which were moving.
15. The judge, in passing sentence, explained at considerable length the reasons why he reached the conclusion that he did. He started by referring to the fact that the appellant had chronically abused his body by smoking cannabis from his teenage years until very shortly before the accident. The judge was invited to sentence on the footing that the appellant had ceased taking cannabis two weeks before the accident, but he stated that he regarded that as doubtful because cannabis was found on him at the time of the accident stuck down the front of his jeans and because of the results of the blood sample. The judge did accept that the appellant had considerably reduced his intake but, as he found, not entirely. The judge next referred to the appellant exhibiting signs of illness, signs which were increasingly exhibited in the weeks prior to the accident. The judge said this:

"That illness has since been diagnosed as mania and psychosis, a serious psychotic mental illness. I am satisfied that cannabis use was a relevant factor in triggering that mental illness. Mr Nutall, to whom I am extremely grateful, has pointed out that Dr Brennan, the psychiatrist who reported upon you, thinks it conceivable that there is an underlying illness which was masked and alleviated by your cannabis use. If I came to that conclusion, the inevitable logic would be that you could again behave as did you on this occasion. That would be a finding of dangerousness not, I consider, in your interests, and I am satisfied on balance, as I have said, that there is a causal link between your cannabis use and your mental illness."

16. The judge then set out the ways in which that manifested itself. The defendant had fallen out with his partner and with his family and was sleeping in his business premises for some weeks prior to the offence. A friend, who was a nurse, saw the warning signs and the appellant's behaviour apparently caused her to ask whether he had been using illegal substances, and he admitted that he had been smoking "skunk". She explained that he needed help. He saw Dr Butler days before the accident and the doctor came to the conclusion that he was showing early signs of psychosis, probably drug induced. The doctor arranged an appointment with the local drugs team for the following Tuesday after the accident, which of course turned out to be too late.
17. The judge then described in detail the manner of the driving in this particular model of car, which is well-known for its high performance and ability to obtain high speeds. He referred to the demonstrations of bizarre behaviour to which we have already referred. The judge then went on to say that Mr D. was too scared to look at the speedometer. He estimated the speed as the fastest possible. He refers to the weaving between lanes. He refers to other users of the motorway estimating the speed of the car at over 120 miles an hour and to the vehicle cutting in in front very close to other vehicles which it was passing.
18. The judge, after describing the accident, then refers to the extremely grave injuries that were suffered by Mr L. in addition to the death of Mrs L.. He refers to the catastrophic results to the family.
19. The judge then refers to the submission made on behalf of the appellant that he bore limited culpability because of his mental state. The judge then said this:

"You were however, in my judgment, well enough to have some insight into your illness. I consider that you should have realised that you were unwell and unfit to drive. During the weeks prior to this accident you had increased energy; you had experienced motor restlessness; you were unable to sit still; your speech was accelerated to the point where at times you were incomprehensible to family and work mates; you were unable to focus on your job; you had significant sleep disturbance; you had a heightened sense of perspective with a belief that you could interpret body language. You behaved impulsively."

That part of the sentencing remarks refers to what the appellant had said to Dr Brennan.

20. The judge goes on and says as follows:

"Furthermore, even if, as is suggested, your insight into your condition was restricted because of your mental illness, this court must look at its primary and paramount consideration at the enormity of what you did and the horrendous consequences of your actions."

21. He refers to the suggestion made by the appellant at the hospital that it was Mr L. who was the dangerous driver and he then goes on to consider matters which go to mitigation, of which the first and most important was the early plea of guilty. The judge remarks:

"Your mental state is an issue in this case, but you have not sought to advance it as a defence, only as a mitigation. I reduce the sentence because of what I accept was a reduced culpability."

22. The judge then refers to the appellant's good character, that he was aged 26 and a hard working young man, and he refers to a third factor, to the difficult period, emotionally, that the appellant was going through because of matters in his private life. He said he took all of those into account. He concluded that the sentence of imprisonment of six years was the least that he could impose and it was his public duty. Had it not been for the matters urged on the appellant's behalf, the sentence would have been far longer.
23. The effect of the sentencing remarks is that the judge found that there were aggravating factors as identified in the case of Cooksley, Stride & Cook [2003] EWCA Crim 996 at paragraph 15. The factors identified by the judge number at least five in the list numbered (a) to (i) at paragraph 15, namely (a), (b), (d), (e) and (g). According to the facts as opened by the Crown, there was evidence of at least two more, namely warnings from a passenger, that is factor (c), and driving when knowingly deprived of sleep, factor (h). In addition, and the judge did not make any mention of this in the sentencing remarks, the appellant had two convictions for speeding and a conviction for possession of cannabis. In addition, the judge drew attention in the sentencing remarks to the fact that not only did one person die, namely Mrs L., but also Mr L. suffered appalling injuries, which is a further aggravating factor. The death of Mrs L. has devastated the life of Mr L. and their children and grandchildren. The harm caused by the accident is highly material to the assessment of the seriousness for the purposes of sentencing.
24. There is no dispute that this is a case of the most serious culpability as referred to in Cooksley, Stride and Cook. There is no dispute that the guideline starting point for this category, after a trial, is six years, as set out in paragraph 29 of the judgment of this court. That judgment related to three defendants. The appellant Cook in that case had pleaded guilty. Two people were killed and one injured by Cook and there were a number of aggravating factors in Cook's case, namely his excessive speed and his driving whilst disqualified. The present case is no less serious than Cook's case and may be thought to demonstrate more aggravating factors than Cook's case. Cook's sentence of seven years was reduced by this court to six years; the same sentence that the judge imposed in the present case. However, since the decision in Cook's case, the maximum sentence for this offence has been increased from ten years to 14 years. It is the 14 year maximum that applies to this case. If this case had been a trial after which the appellant had been convicted, the starting point would have been near the maximum, it certainly would have been well into double figures before consideration of mitigating factors.
25. The grounds of appeal are helpfully set out by Mr Nutall in his advice and in his skeleton argument. It is submitted that the learned judge failed to take properly into account the guilty plea or the fact that, so it is said, there was only one aggravating feature to the defendant's driving and that in the circumstances a sentence of six years and ten years' disqualification was too severe.
26. In the helpful skeleton, Mr Nutall drew our attention to the Attorney-General's Reference No 10 of 2006 (Daniel Chubb) [2006] EWCA Crim 703. In that case he submitted that the facts were comparable to the facts of the present case, in some respects worse because the defendant in that case had a clear understanding of what he was doing.
27. We have considered the case and the submissions, but the facts appear to us to be so different that little assistance can be gained from it. Moreover, in paragraph 23 of the judgment in that case the court said that they had come to the conclusion that the starting point was not less than nine years, and indeed it might have been a little more.
28. In his skeleton argument, Mr Nutall advances further points. He challenges the judge's finding of fact that the appellant was under the influence of cannabis and he submits there was no evidence that the appellant knew of his deteriorating mental health or that the appellant had insight into what was happening.
29. We have considered the judge's findings in the light of the material before him. The most significant material was the report of Dr Brennan, dated 15th December 2005. Dr Brennan said that he could not conclude that the appellant was suffering from automatism or that he was clinically insane at the material time. The appellant did not contend that he was and he did not rely on any such defence. It follows that he knew what he was doing and he knew that what he was doing was wrong. It is notable that the appellant has exhibited no further symptoms of mental illness since imprisonment and, according to Dr Brennan, he does not wish to take medication which may act as a mood stabiliser. There is evidence on which the judge was entitled to disbelieve the appellant when the appellant said he had stopped taking cannabis, not least that some was found on his clothing at the scene of the accident, together with the analysis of his blood sample, as we have stated. There was also evidence on which the judge was entitled to find that the appellant did have some insight into his condition. This is the evidence that the judge set out in his sentencing remarks. There is that two days before the accident, on 24th August, he had seen Dr Butler, who had made an appointment for him to attend the local community drug team. Dr Brennan also describes what the appellant told him in interview and what the judge has set out in these sentencing remarks as a description by the appellant of the appellant's own perception of his condition before the accident.
30. We therefore reject the submission that there was only one aggravating factor and that the judge sentenced the appellant on a factual basis on which there was no evidence. On the contrary, we consider that the judge was fully entitled to sentence the defendant on the basis that he did and that there were all the aggravating factors he identified. This is a case in which the judge would have been entitled to take the starting point in double figures after trial, as we have said. Giving the full one third for discount for his plea and a further discount for the appellant's mental state, which the judge specifically stated that he was granting, and giving consideration also to the other factors referred to by the judge, namely age, relative good character and difficulties in his personal life, the final figure arrived at by the judge of six years was fully justified.
31. We express the court's sympathy for the appalling suffering the victims' family had inflicted upon them by the appellant, and we also pay tribute to the considerable care and skill with which this very experienced judge performed the difficult sentencing exercise in this case.