England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 15 May 2009

1. LORD JUSTICE TOULSON: Sharp J will give the judgment of the court.
2. MRS JUSTICE SHARP: On 22 September 2008, at the Crown Court at Leicester, before HHJ Head, the appellant, who was then 26 years old, was convicted after a five-day trial of causing death by dangerous driving. On 17 October 2008, she was sentenced to five and a half years' imprisonment, with a direction under section 240 of the Criminal Justice Act 2003 that 25 days spent on remand should count towards the sentence. She was also disqualified from driving for five and a half years, and thereafter was ordered to take an extended re-test.
3. The appellant had indicated a willingness to plead guilty to the offence of careless driving, but that plea was unacceptable to the prosecution. No separate penalty was imposed for an offence of using a vehicle with no insurance. She appeals against sentence by leave of the single judge, who granted the necessary extension of time.
4. The facts were these. On 14 April 2007, the appellant was driving her boyfriend's Mitsubishi Lancer Evolution motor car, which is a high performance car and has been described as a rally car of some potency. Her boyfriend was a Mr Bulmer. The appellant volunteered to drive his car because Mr Bulmer had been drinking, but she had no experience of driving such a powerful car.
5. At about 8pm in the evening she had been driving in a legitimate and sensible convoy, as the judge was to describe it, along an "A" road and a motorway with other vehicles. All those involved in the convey were friends or acquaintances and part of a car club. Mr Bulmer was in the front passenger seat, and a young man named Daniel Jordan, then aged 15, was in the rear passenger seat. During that part of the evening the appellant was seen to weave or snake across lanes, and accelerated away from the other vehicles at speed. She subsequently boasted about the high speeds she had been driving at, and her passenger, Mr Jordan, said the speeds had been in the order of 150 miles per hour.
6. By about 11pm she had left the convoy and was negotiating a bend on a "B" road in Leicestershire, Copt Oak Road in Markfield. A Ford Mondeo car was being driven by a police officer, Detective Sergeant Cure, towards the appellant on the opposite side of the road. Mr Bulmer had previously told the appellant to slow down, but she had ignored his warnings.
7. On the appellant's own evidence she was not keeping to the near-side of the centre white line but straddling it. The Mitsubishi appeared to lose control as it came over the bend. Detective Sergeant Cure tried to avoid the car in the very short time available, but a collision was inevitable, and then occurred. The road on which the collision occurred was subject to the national speed limit of 60 miles per hour.
8. The prosecution expert, with whom the defence expert agreed, gave cogent evidence that the median value for critical speed of the bend was about 73 miles per hour. If the Mitsubishi had been travelling any faster than that, the nature of the bend was such that it would not have negotiated the bend at all, but would probably have ended up leaving the road, rather than colliding with Detective Sergeant Cure's vehicle. It is probable that Mr Bulmer, who was not wearing a seat belt at the time of the collision, died instantly. Mr Jordan suffered a broken arm, and Detective Sergeant Cure sustained a broken ankle which developed complications. The appellant sustained serious injuries for which various operations were subsequently required. She suffered fractures of both her thigh bones, her left heel, her left knee cap and her right fibula in the accident. As a result of her injuries, she now walks with the aid of a stick, and one leg is shorter than the other by about two centimetres.
9. She was subsequently arrested, but denied that she had been driving erratically or dangerously. Enquiries revealed she was not insured to drive the car, but it was accepted that this was not a culpable error, and in passing sentence the judge accepted the appellant was probably unaware of the fact that she was not insured.
10. In sentencing the appellant, the judge took account of the Definitive Sentencing Guidelines for the offence of causing death by dangerous driving. The judge also accepted the inevitable impact Mr Bulmer's death had on the appellant because of their relationship. On the day in question, the deceased had been drinking so the appellant had volunteered to drive the car. Although she had no insurance, it was probable she did not know that. However, he said the car was a very powerful car, which was wholly outside the appellant's driving experience, and as a committed car enthusiast she was well aware of its power and potential. She had repeatedly driven erratically when the car was in a convoy with two others, and she had bragged about driving the car at high speeds.
11. Before the fatal accident occurred, the deceased had told her to slow down. The precise speed she had been driving at the time of the accident was not known, but she had lost control of the car on a bend on a country lane with which she was unfamiliar, with bends and undulations and without lighting, and had crashed into an oncoming car.
12. The judge took account of the following aggravating features: prolonged driving at excessive speed prior to the accident of up to 150 miles an hour, as the evidence suggested; the fact that the appellant had been alive to the fact because she had bragged about it; the weaving from side to side or snaking; and the severe injuries to two other people.
13. In this context it should be mentioned that, so far as Detective Sergeant Cure is concerned, the injuries he has sustained have been long-lasting. They have affected his mobility and we have seen and considered his victim impact statement.
14. The judge also had regard to the disregard of a warning to slow down, and to two previous convictions the appellant had for speeding, although apart from those matters she was of previous good character.
15. He also referred to the following mitigating features: her own severe injuries; her remorse, although it was noted that that had not prevented her from saying one of the witnesses was lying; and her close relationship with the deceased. The judge took account of the contents of the pre-sentence report and her record. We should add that the pre-sentence report concluded that the appellant was an engaging, intelligent and well qualified young woman, who had been a manager for a mobile phone company at the time of the collision. It described her devastation, grief and remorse for her actions, which led to the death of her partner and the injuries to the other persons involved.
16. In the event, the judge concluded in all the circumstances that this case fell into the intermediate category of seriousness for which custody was inevitable.
17. On behalf of the appellant, Mr De Burgos realistically confines his submissions to this: despite the aggravating features to which we have referred, the mitigating features were such that the sentence should have been lower. He submits that, in effect, the aggravating features which justified putting this case into level 2, which has a range of four to seven years, should not be taken account of again in putting the sentence at five and a half years.
18. In the offence Guidelines it is said that a level 2 offence is driving that creates a substantial risk of danger, and is likely to be characterised by the following factors:

"• Greatly excessive speed, racing or competitive driving against another driver OR

• Gross avoidable distraction such as reading or composing text messages over a period of time OR

• Driving whilst ability to drive is impaired as a result of consumption of alcohol or drugs, failing to take prescribed medication or as a result of a known medical condition OR

• A group of determinants of seriousness which in isolation or smaller number would place the offence in level 3."

19. These factors are of course illustrative only. A substantial period of imprisonment was clearly merited on the facts of this case. Taking a realistic view of the matter, the judge was, in our view, entitled to regard what happened on this particular evening, and the appellant's driving in particular, as thrill-seeking and showing off at speed despite warnings, albeit the most serious instances of this occurred some time before the collision. There were additional significant matters, particularly the injuries to Detective Sergeant Cure to which we have referred.
20. In the light of those matters, we are of the view that the judge was entitled to conclude that this offence fell into the category of seriousness described as level 2.
21. The Guidelines also recognise as specific mitigation factors which were present in this case: a close relationship with the victim; and injuries to the defendant him or herself. In this case, it is clear from the information we have seen that the appellant, a young woman, was not only seriously injured at the time of the collision, but that she will suffer serious disability and pain for the remainder of her life.
22. We are of the view that it may be that the judge in this case was influenced as to the sentence he passed by the aggravating factors to which he had regard in putting this offence into level 2. It is of course important to take care that aggravating factors which merit putting an offence into a higher category are not then double counted to add to the sentence.
23. Difficult as these cases are, balancing the aggravating factors and mitigating factors to which we have referred, one against the other, we do not think in all the circumstances this case merited going above the starting point for level 2, and we would put it slightly below the starting point which is five years. In our view, the sentence should be one of four and a half years' imprisonment. The sentence of five and a half years will therefore be quashed, and a sentence of four and a half years' imprisonment will be substituted.
24. To that extent only this appeal is allowed.
25. LORD JUSTICE TOULSON: Miss Kubik, when Sharp J referred to the acceptance by the appellant that it was a case at least of careless driving, you appeared to show some dissent. It does not affect the judgment, but if the transcript needs correcting for the sake of accuracy, you have an opportunity to mention it.
26. MISS KUBIK: Thank you. The date of the offence preceded the implication of the change in the law to allow for causing death by careless driving. So for the date of the offence, all that the defendant was able to offer as an alternative to causing death by dangerous driving was simple careless driving. So it simply needs to be amended to that.
27. MR DE BURGOS: My Lord, I can confirm that.
28. LORD JUSTICE TOULSON: Thank you.