England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		19 April 2007

1. MR JUSTICE BENNETT: This appellant is now 20 years old and was 19 at the time that he came to be sentenced. On 8th August in the Crown Court at Sheffield, he pleaded guilty to three offences. First, manslaughter; secondly, driving whilst disqualified; and thirdly, conspiracy to pervert the course of justice. On 26th September he came before His Honour Judge Goldsack, the Honorary Recorder of Sheffield. For the offence of manslaughter he was sentenced to detention in a young offender institution for public protection pursuant to section 226 of the Criminal Justice Act 2003. The Recorder specified a minimum term of four-and-a-half years. On the other two offences for which the appellant pleaded guilty there was no separate penalty. He appeals the sentence of detention for public protection by leave of the single judge.
2. In June 2005 the appellant was disqualified from driving for a period of two years. He was also sentenced to a community rehabilitation order for a period of 18 months. In February 2006 he admitted a breach of that community rehabilitation order and was given a suspended sentence of imprisonment. Notwithstanding all that, on the evening of 4th April 2006 the appellant drove a Subaru Imprezza car which he had purchased the previous day for some £5,000. He had purchased that car in the knowledge that he was disqualified from driving, thus he was uninsured and also he was subject to a suspended term of imprisonment.
3. When he first came to drive the car on 4th April he had three passengers. He drove at speeds estimated to be 90 - 100 mph on roads which had a speed limit of 60 mph. His passengers asked him to slow down, but he did not.
4. Back at the house to where he then drove he smoked cannabis. A 19-year-old girl, Miss Kilner-Farr, telephoned and asked for a lift and at about 10.15 that evening the appellant in his motorcar arrived outside her house. Miss Kilner-Farr and Kirsty Cash, the deceased, got in. The car was then being driven by the appellant's step-father. The appellant was in the car drinking from a large bottle of lager. Towards the end of the journey the appellant took over the driving. They arrived home at about 10.30 to 10.45. Others came to the house and drink and cannabis were consumed.
5. Shortly after midnight the appellant said that he wanted to get some more cannabis. The deceased got into the front passenger seat of the appellant's car and Miss Kilner-Farr got into the back seat. The girls were expecting Mr Scholes to drive but in fact it was the appellant who got into the driver's seat. Miss Kilner-Farr was quite understandably very concerned because she had seen the appellant drinking and using drugs.
6. During the journey the deceased took off her seat belt to retrieve a cigarette which she had dropped on the floor. During the course of the driving Miss Kilner-Farr noticed the speedometer recorded a speed of 80 to 90 mph with the vehicle picking up even more speed. At a point in this journey the appellant lost control. An accident investigator subsequently concluded that after the car had gone over the brow of a hill, the appellant lost control, the car crossed the carriageway and began to rotate in a clockwise direction. The nearside of the vehicle collided with trees, uprooting the first, and the vehicle continued to rotate. At some point the nearside front wheel and suspension arm became detached and the nearside wheel folded back under the vehicle's body. It was possibly at that time that the deceased was thrown out of the vehicle.
7. The deceased was then in urgent need of medical attention. Miss Kilner-Farr got out her mobile and tried to telephone, but the appellant said to her: "Don't phone them. I'm a banned driver and I'm not getting done for this. I'll smash your face in." Miss Kilner-Farr screamed that an ambulance was needed but the appellant told her to "shut up". The appellant then made a number of telephone calls to various members of the family. There was some discussion about towing the car away and indeed setting fire to it and for another person to take the blame for the accident.
8. The deceased was carried into the house. There was a discussion about how to cover up the accident. The appellant demanded that another person take responsibility for the accident and there was a further discussion about setting fire to the car. Miss Kilner-Farr repeatedly said to all of them that the deceased needed an ambulance.
9. The deceased's condition had deteriorated and eventually at about 2 o'clock in the morning an ambulance was called. When the paramedics came they did find the appellant trying to resuscitate the deceased. He was obviously distraught and upset. The paramedics could find no heartbeat. The deceased was put into the ambulance and taken to hospital, but she died.
10. The deceased suffered multiple injuries consistent with being thrown out of the car. A consultant in emergency medicine indicated she would have had an 84.7 per cent probability of survival had she been in receipt of speedy medical care.
11. The appellant told his father what had happened. When it came to his attention that the deceased was dead, the appellant said he wanted to hand himself in and indeed he did so on 5th April. When interviewed he handed in a prepared statement which said that he had had only one drink in a public house and some cannabis. He drunk a bottle of lager went he went to pick up Miss Kilner-Farr. He wanted to go out again but he lost control and hit a wall. He thought the car had slipped on ice. In his statement he told Miss Kilner-Farr not to telephone for an ambulance because he thought the deceased would be okay. He denied he had in any way suggested that the car should be set on fire. When he realised how seriously injured the deceased was he told his mother to call for an ambulance. When further interviewed on 10th May he remained silent.
12. The Recorder had before him a pre-sentence report. In that the author said this:

"Andrew Bennett appears to have had a way of life prior to this offence, which focused on drinking, drug taking and spending time with similarly disaffected friends. He has spoken to me and to colleagues previously about 'mixing with the wrong crowd'. The information available suggests he is more likely to have been the instigator of offending than the follower. He has shown a reckless attitude to driving on previous occasions. 'I need to get about' was his response in our interview for this report. He has shown a similar disregard for other people's property and welfare, if one judges by his previous convictions, which are for criminal damage, theft, assault and public order offences."

He was assessed by the author of the pre-sentence report as posing a medium to high risk of reoffending at the present time. He had demonstrated a recklessness about others. He had shown strong egocentricity and he had a history of drug and alcohol misuse. The author continued that the present charge represented the culmination of a pattern of behaviour which had developed over a number of years. He was assessed as posing a high risk of serious harm to the public unless he addressed his behaviour problems. The Recorder also had in front of him a psychological report, to which he obviously paid attention.

13. In his sentencing remarks, the Recorder set out in summary the appellant's previous record. He set out the driving and the history which we have set out in this judgment. He then, in his sentencing remarks, said this:

"Manslaughter is a serious specified offence under the Criminal Justice Act 2003. The first consideration therefore is whether you are dangerous. Do you pose a significant risk of causing serious harm to members of the public by committing further specified offences? If you do, there is a mandatory requirement upon the Court to pass a sentence of detention for public protection. The psychological report about you shows you to be of limited intelligence and you tend to act as a younger person does. That means acting impulsively and not thinking through the consequences of what you do. The author of the pre-sentence report considers you are medium to high risk of committing further offences and high risk of causing serious harm if you resume your previous way of life upon release. In other words, she considers you do pass the test of dangerousness. I agree.

Of course, it may be that the effect of a long period in custody will cause you to change your ways. That is always the hope, but experience shows it cannot always be the expectation. Many serious offenders do repeat their offences on release. I only have the past to guide me. So far you have ignored Court orders with impunity. It is too early to say if that will change after a period of custody.

Your counsel submits that the Court is engaged in speculation in trying to predict the future, but Parliament requires me to assess the risk of future serious offences and the harm they may cause. In my judgment, there is a significant risk that without proper safeguards you would again be tempted to drive a car and if, for example, a police car came up behind you, to put your foot down to try to evade detection with further serious consequences."

14. Mrs Seaborne, who appeared for the appellant before the Recorder and before us, submitted that the sentence of detention for public protection was wrong in principle and was manifestly excessive in the circumstances. She submitted that the Recorder ought to have imposed a determinate sentence of 10 years' detention in a young offender institution. Her submissions can be summarised in this way. The appellant's record and his behaviour on 4th April 2006 could not lead or should not lead to a finding that the appellant at the time he was sentenced was a significant risk to members of the public of serious harm to be occasioned by the commission by him of further specified offences. She submits that he was only 19 at the time of sentence, that there is nothing in his record to indicate that he would or might in the future be at a significant risk of committing further specified offences, ie in this case manslaughter or causing death by dangerous or careless driving. She submitted that the Recorder was wrong to speculate about what might happen in the future given his background as we have set out and as she submitted and the nature of his behaviour on the night in question.
15. We do not accept Mrs Seaborne's submissions. The Recorder had the task of assessing whether there was a significant risk under section 225(1)(b) of the Criminal Justice Act 2003. The Recorder plainly had in mind the provisions of section 229(2). He was obliged by sub-subsection (a) to take into account all information that was available to him about the nature and circumstances of the offence. It was within his discretion to take into account information under subsections (b) and (c).
16. In our judgment, as indeed it must have been in the judgment of the Recorder, the critical factors about this particular offence were these. He was driving whilst disqualified, indeed he had purchased a motorcar in the knowledge that he was disqualified and therefore uninsured. He drove having consumed alcohol and smoked cannabis. He drove at very high and indeed reckless speeds. He lost control. He thought only of himself and sought to evade detection and the consequences of his action was that had an ambulance been promptly summonsed there might have been a good chance that the deceased would have survived but that chance was denied to her. The pattern of behaviour throughout was, as the Recorder said, one of offences involving motor vehicles and repeated breaches of orders made by the court following convictions for these offences. He took into account what the pre-sentence report author had said. We agree with the Recorder in his assessment that there plainly was in this case a significant risk. Accordingly the appeal is dismissed.