England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3 October 2012

1. THE VICE PRESIDENT: This defendant appeals against a sentence of four years and nine months which was imposed for the offences of causing death by dangerous driving and driving with excess alcohol in a case in which she had entered prompt pleas of guilty.
2. In June 2011 she was 22 and she was taking an Access to Nursing course with a view to applying in due course for university admission in the hope of qualifying in midwifery. She was the single mother of a boy who was then 16 months old, born in February 2010. Some time before the events with which we are concerned, but not very long before, her relationship with the boy's father had come to an end. The boy was living with her. He had some but relatively limited contact with his father.
3. On the night of Saturday 25th June 2011, this young woman spent the evening with a group of friends. They were two young men and two young women in all and they were at the studio of one of the young men, Mr Choudhery. This defendant and the two men, but not the other young woman, were drinking steadily. Between the three drinkers they consumed a large and then a small bottle of brandy. When they ran out they decided to go to an off licence to buy some more of the same. The shop was within walking distance, but this defendant had a car and she drove the whole group there; indeed they picked up another friend in the course of the short trip.
4. On the way back the defendant was driving fast along an urban high street some time not long after midnight. It was the kind of street that has multiple fast food outlets, where there is plenty of traffic, both pedestrian and wheeled, even at that hour of the night. The car radio was turned up. The car was driven much too fast. Some or all of the men in the rear seat were calling for her to drive yet faster and more recklessly, but the woman in the front seat warned her that it was dangerous and that she should slow down. Sadly she followed the former rather than the latter encouragement. She overtook two vehicles but when she was trying to do the same thing a third time she failed to get back to the right side of the road, she struck an oncoming double decker bus and the offside of her car was ripped away. Mr Choudhery, who had been one of the rear seat passengers, was ejected by the impact from the car and suffered fatal injuries in the course of it. The other male passenger, a then boyfriend of hers called Mr Murphy, also suffered quite serious injuries including the collapse of both lungs and fractured ribs.
5. The defendant's speed in the course of the closing stages of these manoeuvres was put at not less than 60 mph. Judge Bing rightly declined to be sure of the possibly higher figure that might have been suggested by some of the evidence. This was an urban high street of the kind we have mentioned, with a 30 mph speed limit. Sixty mph was far too fast for the conditions, even if the defendant had not also been significantly intoxicated. But she was. Her breath test analysis was 77 micrograms in 100 millilitres -- in other words more than double the legal limit for driving.
6. If we may be allowed to say so, Judge Bing's approach to the very difficult task of passing sentence was principled, thorough and careful. He emphasised the fact that no sentence in a case like this can ever undo the damage that has been done nor assuage the grief of the bereaved. He rightly said that sentences in cases of this kind have to reflect the natural and often strong feelings of the public that the needless loss of another's life by this kind of driving cannot go unpunished. But at the same time, sentencing must take account of the person who is before the court. The judge went on scrupulously to identify the principal things which made this offence worse when compared with others of its kind, and on the other hand those features which went to reduce its gravity by similar comparison.
7. As to the former, he identified, first, grossly excessive speed, responding as he said to being egged on by the passengers. The speed was reckless. Secondly, he identified correctly driving whilst intoxicated. It goes without saying that this woman ought not to have been anywhere near the wheel of a motorcar that night. Thirdly, he identified persistent and inappropriate overtaking. It was, we are afraid, devil may care driving.
8. He did not add, but he might have done, that the defendant lied to the police that evening, saying initially that she had not been driving at all but that her boyfriend Mr Murphy had. It is right to say that she did not persist in that and the following day she all but admitted that it had been her who was driving. She also failed to tell the truth to the probation officer about the amount that she had had to drink. Next, she was driving a car which had been refused an MOT certificate and so it should not have been on the road at all. We say at once that its condition had nothing to do with the crash, but it was some further illustration of irresponsible driving and she did not tell the truth about that to the police either. Lastly, and perhaps most significantly, although it is clear that she was egged on by some or all of the rear seat passengers -- and despite Miss Russell's careful submissions it is not clear to us whether that necessarily included the unfortunate fatal victim or not and it probably makes very little difference -- she was egged on by some or all of the rear seat passengers, but she ignored the warnings of the only sober person in the car, who was the front seat passenger.
9. So those features sadly made it a worse case than some others of its kind. In the scales on the other side the judge scrupulously identified the following. First, this defendant tendered a prompt plea of guilty. This always justifies a substantial reduction in sentence. In the present case, secondly, it was not for convenience, it undoubtedly reflected genuine remorse. There was clear evidence of that. The defendant, as some but not all who have behaved in this way do, had obviously confronted the grave wrong that she had done and understood it. She had sought counselling and she had sought some help to address the question of her drinking. Thirdly, the judge identified her relative youth and her previous good character. He had before him a number of constructive recommendations from family and from former teachers. In summary, the background seems to have been an unsettled and perhaps rather immature adolescent personality, with a history of mood swings and some difficult behaviour, but an adolescence which she was putting behind her. It was tempered, balanced, by a clear history of willing helpfulness to others in all kinds of fields. Moreover she was someone who had not only never previously offended against the law, but she had held down decent jobs and she cherished the ambition to do a really useful job in midwifery. The effect of her offence was likely to put that in very serious peril, not only obviously as she lost the opportunity through her own actions to follow the course that she wanted, but with this conviction on her record she may well find it difficult, we understand, to go into that profession in future. We do not know. Those of course were inevitable consequences of her own misconduct, but they are features of punishment additional to anything done by the court which she had brought upon herself and they ought to be recognised. The judge did recognise them.
10. Lastly, the judge identified the effect on this young woman's then two year old son and on her relationship with him. She was his sole carer. It was the inevitable consequence of her offence that he was going to be separated from his mother for about as long as he had thus far lived. What actually happened was that the defendant, we accept, approached the problem with a good measure of responsibility. The child has not had to be taken into care as may happen in some of these cases. She initiated an extended family discussion involving the boy's father, from whom by then she was distant personally, and with his family. That family has assumed the care of the boy. It has all been done with the approval and support both of the defendant's own mother and of the local authority, so care has been taken and sensible and realistic arrangements have been arrived at. The arrangement appears to be working as well as one could hope and everybody concerned deserves a good deal of credit for making it work. But it is obviously correct that the rupture of the key relationship that this boy has up until now had is enormous and is likely on any view to endure for a period not very different from the time that he had lived up until then with his mother. We are told that weekly visits by him to the defendant are possible but those of course are inevitably not without difficulties. It cannot be easy for him. He has reacted emotionally and at times angrily. None of that is in the least surprising. He is too young to have it explained to him what is happening. The defendant for her part will undoubtedly fear that her relationship with him is going to be so damaged by the end of her sentence that it may be incapable of repair. Most of the indications are that father's family will understand that her relationship with him is absolutely critical, but the uncertainty remains and we accept that that is an additional punishment for her as well as a considerable impact on the boy himself.
11. Faced with all that, the judge adopted a starting point of eight years after a hypothetical trial had it had to take place, which it did not. There has been no challenge, rightly, to that. That was precisely the starting point suggested for the most serious category of offences of this kind in the guidelines issued by the Sentencing Guidelines Council. In her written submissions, but not orally, Miss Russell raised the question of whether the judge had double counted the drink, but it is clear that he did not. Having put the case in the most serious category he did not elevate it within it for that factor. When he came to deal with the separate offence of driving with excess alcohol he correctly passed a concurrent sentence because he had taken the drink into account in fixing the sentence for the principal offences. So there was no double counting. The judge's approach in this, as in other respects, was impeccable. He reduced the sentence by the conventional one-third to recognise the plea of guilty. He appears to have worked on the basis that that took him to about five-and-a-half years and his actual sentence of four years nine months involved a further reduction of nine months for the personal factors in the case -- the personal mitigation available to the defendant, coupled with the inevitable effect on the child and his relationship with his mother.
12. We deal briefly with one other submission, which is that the judge should further have reduced the sentence on the grounds that the defendant was an inexperienced driver. It is true that she had passed her test only about six months earlier, but the judge was right when he said that this was not a crash which was attributable to inexperience, it was a crash, sadly, which was attributable to recklessness. The guidelines expressly treat inexperience as distinct from recklessness or irresponsibility and the judge's approach was entirely in accordance with them. We accept that this was a case of youthful irresponsibility and an irresponsibility which, we think we can rightly say, is not likely to be repeated given the severity of the lesson which has been administered to the defendant.
13. We are extremely grateful to Miss Russell for her realistic as well as eloquent submissions. She rightly puts the plea on behalf of this defendant essentially as a plea for mercy.
14. The consequences of the defendant's own actions and the inevitable punishment which has had to follow both for her and for the child are undoubtedly far reaching. She has also, in addition to the features we have so far identified, inevitably lost the local authority tenancy that she had.
15. Miss Russell's written submissions draw our attention to the fact that the article 8 rights to family life of the defendant's infant son were clearly engaged by the sentencing process. She has referred us in writing to two decisions of the Supreme Court, ZH (Tanzania) v SSHD [2011] UKSC 4 and, of closer relevance, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. It is enough to say of the former of those cases that the learning which we need is to be found in the latter of them. The rules for deportation are in any event different because there is specific provision in section 55 of the Borders Citizenship and Immigration Act 2009 which requires deportation decisions to comply with section 11 of the Children Act 2004 and to be made having regard to the need to safeguard and promote the welfare of children.
16. More recently in HH the Supreme Court has considered the correct approach to the article 8 position of dependent children, not in sentencing directly but in cases where the extradition of one or more parents is sought. There are, however, in that case references by way of analogy and distinction to domestic sentencing. We think that in the context of a sentencing appeal such as this, it is not necessary to embark on any comprehensive analysis of the speeches of their Lordship in HH. Miss Russell rightly concedes that this is a case in which, sadly, a substantial sentence of imprisonment was absolutely unavoidable.
17. We do think however that we ought to say these brief things by way of general observation. First, the sentencing of a defendant inevitably engages not only her own article 8 family life but also that of her family and that includes (but is not limited to) any dependent child or children. The same will apply in some cases to an adult for whom a male or female defendant is a carer and whether there is a marital or parental link or not. Almost by definition, imprisonment interferes with, and often severely, the family life not only of the defendant but of those with whom the defendant normally lives and often with others as well. Even without the potentially heart-rending effects on children or other dependents, a family is likely to be deprived of its breadwinner, the family home not infrequently has to go, schools may have to be changed. Lives may be turned upside down by crime.
18. Second, the right approach in all article 8 cases is to ask these questions: A. Is there an interference with family life? B. Is it in accordance with law and in pursuit of a legitimate aim within article 8.2? C. Is the interference proportionate given the balance between the various factors? That is carefully set out by Lady Hale in her speech in HH. Although she was in the minority as to the outcome in relation to one of the persons sought for extradition, she gave at paragraph [30] this analysis with which there was general agreement. That approach is as true of sentencing as of any other kind of case in which family life is in question. Of course in sentencing, the first two questions will usually be straightforward. There will almost always be some interference with family life and it will be in accordance with law and due to legitimate aims. It is the third question which may call for careful judgment.
19. Third, long before any question of article 8 or of the Human Rights Act 1998 was thought of, sentencing practice in England and Wales recognised that where there are dependent children that is a relevant factor to sentencing. That is most conveniently to be extracted from the careful words of Lord Judge, CJ, in HH at paragraphs 126 to 130, to which reference should be made if this point is taken. In particular, at paragraphs 128 and 129 he said:

"128. The continuing responsibility of the sentencing court to consider the interests of children of a criminal defendant was endorsed time without number over the following years. Examples include Franklyn (1981) 3 Cr App R(S) 65 Vaughan (1982) 4 Cr App R(S) 83, Mills [2002] 2 Cr App R (S) 229, and more recently Bishop [2011] EWCA Crim 1446 and, perhaps most recently in Kayani; Solliman [2011] EWCA Crim 2871, [2012] 1 Cr App R 197 where, in the contextOf child abduction, the court identified

'… a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision.'

129. Recent definitive guidelines issued by the Sentencing Council in accordance with the Coroners and Justice Act 2009 are entirely consistent. Thus, in the Assault Guideline, taking effect on 13 June 2011, and again in the Drug Offences Guideline, taking effect on 29 February 2012, among other features the defendant's responsibility as the sole or primary carer for a dependant or dependants is expressly included as potential mitigation."

20. Fourth, it follows that a criminal court ought to be informed about the domestic circumstances of the defendant and where the family life of others, especially children, will be affected it will take it into consideration. It will ask whether the sentence contemplated is or is not a proportionate way of balancing such effect with the legitimate aims that sentencing must serve.
21. Fifth, in a criminal sentencing exercise the legitimate aims of sentencing which have to be balanced against the effect of a sentence often inevitably has on the family life of others, include the need of society to punish serious crime, the interest of victims that punishment should constitute just desserts, the needs of society for appropriate deterrence (see section 142 Criminal Justice Act 2003) and the requirement that there ought not to be unjustified disparity between different defendants convicted of similar crimes. Moreover, as Sachs J pointed out in the South African Constitutional Court in N v The State [2007] ZACC 18, in a case in which there was under consideration a specific provision in the Constitution which required the interests of an affected child to be "the paramount consideration", not only society but also children have a direct interest in society's climate being one of moral accountability for wrongdoing. It also needs to be remembered that just as a sentence may affect the family life of the defendant and of his/her innocent family, so the crime will very often have involved the infringement of other people's family life. There is a good example afforded by the striking facts of the second defendant Solliman in Kayani and Solliman [2011] EWCA Crim 2871 at paragraph 54. He, by his crime of abduction of children, had utterly destroyed the abducted children's relationship with their mother and his well-deserved imprisonment was now to punish them again by depriving them of his own care as their otherwise unexceptional remaining parent. This present case is also one in which article 8 rights are affected not only in the defendant and her child but in the deceased and his family.
22. Sixth, it will be especially where the case stands on the cusp of custody that the balance is likely to be a fine one. In that kind of case the interference with the family life of one or more entirely innocent children can sometimes tip the scales and means that a custodial sentence otherwise proportionate may become disproportionate.
23. Seventh, the likelihood, however, of the interference with family life which is inherent in a sentence of imprisonment being disproportionate is inevitably progressively reduced as the offence is the graver and M v South Africa is again a good example. Even with the express Constitutional provision there mentioned, the South African Constitutional Court approved the result in which in one of the cases a sentence of four years was necessary upon a fraudulent mother, despite the fact that she was the sole carer for a number of children who were likely to have to be taken into care during her imprisonment - see paragraphs 43 to 44. Likewise, in HH, the majority of the Supreme Court was satisfied that there was no basis on which the extradition to Italy could be prevented of a father who was in effect the sole carer for three young children, but who had been a party to professional cross border drug smuggling. His extradition of course meant not only his imprisonment, but his imprisonment too far away from the children's home for there to be more than the most rare of contact.
24. Eighth, in a case where custody cannot proportionately be avoided, the effect on children or other family members might (our emphasis) afford grounds for mitigating the length of sentence, but it may not do so. If it does, it is quite clear that there can be no standard or normative adjustment or conventional reduction by way of percentage or otherwise. It is a factor which is infinitely variable in nature and must be trusted to the judgment of experienced judges.
25. Ninth, those briefly stated principles are we think sufficient to guide sentencing judges and do no more than reflect what has been the practice of the criminal courts since long before arguments were habitually couched in terms of article 8 or human rights generally. We add that we do not think that those principles are affected by the question which is sometimes raised and which has been adverted to in Miss Russell's written submissions, namely whether article 3 of the United Nation's Convention on the Rights of Children and the similarly expressed article 24.2 of the European Union Charter of Fundamental Rights, do or do not apply to the sentencing of adults. As to that, on the one hand it is difficult to imagine that the framers of those conventions can have meant to include the sentencing of adults as decisions "concerning children", any more than they meant to include other decisions such as, for example, the enforcement of judgment debts against parents or the termination of the employment of parents within that expression. If they did, that would involve a requirement that the effect on a child of such a decision should be "a primary consideration". Moreover, article 9 of the same convention makes clear that the separation of a child from parent may occur as the result of imprisonment which it clearly contemplates. As Lady Hale observed in ZH (Tanzania) it clearly distinguishes between the separation of a child and parent as a consequence of a decision as to the child's upbringing on the one hand and separation as a consequence of detention or imprisonment on the other. As against that, there are passages in HH where it appears to have been assumed, though without argument to the contrary, that article 3 at least does apply -- see passing references at paragraphs [16], [98], [143] and [155]. The reason why we say that it is not necessary to resolve that question in the sentencing in the Crown Courts is because it is clear from HH that even on that assumption and even if those provisions of those conventions applied, it is the balancing which is required by article 8 in the form that we have endeavoured to set it out which is the effective test for sentencing.
26. So where does that leave us in the present case? There can be no getting away from the fact that this is a serious case of motor homicide. By modern standards of harm and culpability Miss Russell is plainly right that a substantial sentence of imprisonment was absolutely unavoidable. An innocent person has been deprived of his life by the recklessly bad driving of the defendant who ought not in her intoxicated condition to have been behind the wheel at all. There are of course worse examples of prolonged, deliberate, very bad driving, deliberate aggressive driving or of even grosser impairment by drink but this was a bad case. There was however real mitigation to be found in the defendant's youth and relative immaturity, her genuine remorse, her previous good character and good work record and in the fact that she appeared to have learned her lesson. There was likewise real reason for moderating the sentence to be found in the punishment which she had by her own actions brought upon herself, independently of what the court orders -- in particular by the effects of her behaviour on her relationship with her son and, more important, his relationship with her. The inevitable separation of mother and child comes undoubtedly at a very sensitive time in his upbringing.
27. We would like to say that the judge's overall approach to the sentence in this case was immaculate. We differ only in the adjustment which we think should properly be made to reflect the combined factors of personal mitigation, coupled with the effect upon the child. Adopting the judge's identical approach, we start with eight years, had there been a trial; there was not. The plea of guilty reduces that not actually to five-and-a-half years but to five years four months. We would adjust that by a further 18 months and the result is a sentence of three years and 10 months. That is entirely consistent with the judge's approach and we think that it is the right outcome for this defendant on the facts of this case. We are conscious that she has had to sit for rather a long time listening to a judgment before she got to the answer, but the outcome is that the appeal is allowed to the limited extent of substituting a sentence of three years and 10 months for one of four and nine months. To that extent, but to that extent only, Miss Russell's plea for mercy succeeds.