England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 201704421/A3 Royal Courts of Justice Strand London, WC2A 2LL
		14 November 2017

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1. LORD JUSTICE HOLROYDE: On the afternoon of 30th January 2016 Mrs Afrifa-Osew was driving north on the A10 road in Hertfordshire. Her daughter aged 3, and her niece aged 12, were in the rear seat of the car. At the relevant point the road is a single carriageway with one lane in each direction. She was not familiar with the area and realised she had missed the turning to her intended destination. She pulled over onto a narrow area of open ground at the side of the carriageway and positioned the car at an angle to the carriageway. From that stationary position she attempted to make a U-turn, in order to travel southwards. In doing so, she blocked the path of a motorcycle which Mr Tony Taylor was riding southwards. His riding was impeccable. He was travelling comfortably within the speed limit between 45 and 50 miles per an hour. There was nothing he could do to avoid colliding with the car. He was thrown from his motorcycle and suffered multiple injuries from which he died at the scene.
2. Mrs Afrifa-Osew admitted her responsibility for causing Mr Taylor's death. She was charged with causing his death by dangerous driving, with a lesser alternative charge of causing his death by careless driving. She pleaded guilty to the lesser charge, but not guilty to the more serious offence. Very regrettably, her trial was delayed until late July 2017. She was convicted. At a sentencing hearing, on 8th September 2017, the trial judge, His Honour Judge Bridge, sentenced her to 2 years' imprisonment suspended for 2 years, with a requirement that she undertake 300 hours of unpaid work. He ordered that she be disqualified from driving for 2 years and until she had taken and passed an extended driving test.
3. Her Majesty's Attorney General applies to this court, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer that sentence as being unduly lenient. We grant leave.
4. This court wishes at the outset, as did the learned judge below, to offer its sympathy to Mr Taylor's family. They have suffered a terrible loss and their grief is very clearly and movingly expressed in the personal statements which we have read. It is clear that Mr Taylor was much loved and is very sadly missed. It is also clear that he was both an experienced and an extremely careful motorcyclist. He always observed high standards of safety and was doing so when his life was brought to an end by Mrs Afrifa-Osew's dangerous driving.
5. Mr Taylor's family and friends will we are sure understand that the court must decide the case in accordance with the law, and that the sentence of the court is not, and cannot be, an attempt to value either his life or their loss.
6. Mrs Afrifa-Osew had been driving for more than 20 years. She had been using the car for several weeks or months and was familiar with it. It had in fact recently failed a MOT test. But the judge appears to have accepted that Mrs Afrifa-Osew had not been made aware of that failure, and he found that in all the circumstances the fact that the car did not have a current MOT certificate was not an aggravating factor.
7. At the point where she attempted her U-turn Mrs Afrifa-Osew had a clear view northwards for up to 400 metres. She therefore had ample opportunity to see Mr Taylor riding towards her. He was wearing high visibility clothing and his headlamp was illuminated. He was being followed by another motorcycle with its headlamp illuminated, ridden by a friend who was also an experienced rider and also wearing high visibility clothing. These motorcycles were seen by two pedestrians who witnessed the fatal collision and by the driver and passenger in a northbound car, in front of which Mrs Afrifa-Osew pulled out. Behind the two motorcycles there was a car and then a third motorcycle.
8. The evidence at trial indicated that Mrs Afrifa-Osew began her attempted U-turn abruptly and without signal or warning. In interview she said that both the car behind her and a car coming towards her had either stopped or at least slowed down to allow her to perform her manoeuvre. That was not true. The driver of the car which was approaching from behind her was surprised when she suddenly pulled out. The nearest oncoming car was some distance away and was behind the two motorcycles. She in fact pulled out when it was clearly unsafe to do so, both for the oncoming motorcycles and for the car behind her. On her own account she had not seen Mr Taylor.
9. In interview, she suggested that the motorcycle might have been travelling at speed. But he was not. We do not regard that as a specific blaming of Mr Taylor by Mrs Afrifa-Osew. However, having heard the competing submissions of counsel, we do take the view that her account of two vehicles stopping or slowing to allow her to make her turn was, and was known by her to be, untruthful.
10. It is we think clear from the evidence in the case that Mrs Afrifa-Osew caused the death of Mr Taylor because she undertook a manoeuvre which was inherently dangerous and which she made even more dangerous by failing to look out for other road users, to consider their safety, or even to warn them of her intended movement.
11. It is to her credit that she always accepted her responsibility for causing Mr Taylor's death, and that she accepted at least some element of criminality by her plea to the lesser charge. We accept, further, that she wanted at an early stage to contact Mr Taylor's family in order to express her remorse, but she was advised she should not do so. It is however very regrettable that she did not acknowledge by a guilty plea that her driving was not merely careless but dangerous.
12. Mrs Afrifa-Osew is now 45 years old. She was of previous good character and had never incurred any motoring penalty. She is married with twin boys now aged 10 and a younger daughter who was in the car with her. She has worked for a number of years as a teacher and course leader in Business Studies at a sixth form college.
13. The learned judge had the benefit of a detailed pre-sentence report, the author of which assessed Mrs Afrifa-Osew as showing genuine remorse and victim empathy. She constantly felt shame and guilt. She had been suffering since the offence from depression and panic attacks and had difficulty sleeping. She had been prescribed appropriate medication by her general practitioner. She had contemplated suicide.
14. The pre-sentence report also described Mrs Afrifa-Osew's fears for her children if she received an immediate custodial sentence. She told the author of the report that her husband blamed her for the fatal collision and that as a result their marriage was in severe difficulties. She said that he had indicated to her that he would not alter his shift pattern at work in order to look after the children if she were to be imprisoned. He had expressed the view that he would send them to stay with his mother in Ghana. The author of the report accepted that there was a real possibility that that would happen, and assessed that it would have a detrimental effect on the children if it did happen.
15. We note that Mrs Afrifa-Osew's husband had attended her five-day trial for about 1 hour on one occasion, and did not attend court or take time off work on the day when she was to be sentenced.
16. The author of the pre-sentence report proposed a suspended sentence.
17. The learned judge also read, as we have read, a most impressive collection of testimonials. Two of the many authors of those testimonials gave oral evidence at the sentencing hearing. From the evidence before the court it is clear that Mrs Afrifa-Osew has been a most dedicated teacher. She has shown great skill both in imparting knowledge to her students and in supporting and encouraging them. She has shown herself to be a caring and generous person, who has over the years performed many acts of charity and kindness to others. By way of example given in some of the testimonials, in her desire to help others in her local community, where there is a significant population of Turkish origin, she has taken it upon herself to learn the Turkish language. She has been a most devoted mother to her children, who depend heavily upon her. The twin boys are at a critical stage of their schooling, having passed entrance exams to start at a grammar school next autumn and the younger girl has been anxious and in need of her mother's company and support since being involved in the collision.
18. This court has also been provided with a supplementary report by the London Probation Trust which confirms that Mrs Afrifa-Osew continues to be extremely remorseful, expressing her regret that she has taken Mr Taylor's life and speaking of recurring flashbacks. The author of this report also assesses her as showing genuine regret for her actions and a proper appreciation of the consequences for others. She has been complying with the requirements of her suspended sentence order. This updating report indicates that her husband now says that in the event of a custodial sentence he will try to manage his child care responsibilities as much as possible, and would only send the children to Ghana as a last resort. Mrs Afrifa-Osew however remains fearful they will be sent to Ghana with a consequential impact on their young lives. The author of the report pointed to the substantial effect of an immediate prison sentence, both for the future of the children and for the future employment of Mrs Afrifa-Osew.
19. The case therefore presented to the learned judge, and presents to this court, a very difficult sentencing exercise. Dangerous driving has in a few seconds ended one life and brought anguish to many others. Mrs Afrifa-Osew has brought upon herself considerable suffering as a result of her actions.
20. It is, in our view, clear from the sentencing remarks that the learned judge approached this difficult task with great care. He summarised the offence in this way, at page 18B of his sentencing remarks:

"So you were performing a potentially dangerous manoeuvre which, while not unlawful itself, required consummate care in terms of observations, indication and execution. The way you carried it out caused a substantial risk to those using the road, as the tragic consequences of your action demonstrate."

21. The judge then considered the positive good character of Mrs Afrifa-Osew, as indicated by the testimonials. He spoke at page 18D of "a positively good character", and referred to the abundance of "glowing and supportive testimonials from members of your family from work colleagues and from members of your church congregation...". He referred to the oral evidence given by two of those witnesses at the sentencing hearing.
22. The judge then referred to the Definitive Guideline on offences of causing death by dangerous driving, published by the Sentencing Guidelines Council. He accepted the submission of the prosecution, from which the defence did not demur, that in terms of that guideline this was a level 3 offence, because it involved "a brief but obvious danger arising from a seriously dangerous manoeuvre". The guideline therefore indicated a starting point of 3 years' custody and a range from 2 years to 5 years' custody.
23. In terms of the offence itself the learned judge found that none of the additional aggravating or mitigating factors listed in the guideline was present. He then said this at page 19C:

"I am obliged by Act of Parliament, once I have decided the offence is so serious that it must be marked with a custodial sentence, to pass the shortest custodial sentence necessary to reflect the seriousness of the offence. Taking due account of those mitigating factors and paying due regard to all the circumstances of the offence and the weighty matters urged upon me in mitigation, I would be minded to impose by way of custodial term 2 years' custody, the bottom end of the sentencing range."

24. The learned judge then turned to consider some of the contents of the pre-sentence report. He took into account that the expressions of remorse by Mrs Afrifa-Osew had to be viewed against the background of a contested trial. But he nonetheless made, at page 20B, this finding:

"I observed you throughout the trial and it was quite clear to me that you were and remain traumatised, not only by what has happened to you but also by the tragic consequences of your actions."

25. He then referred to the indication by Mrs Afrifa-Osew that her husband was likely to send their children to his mother in Ghana for the duration of any prison sentence. The judge accepted that there was, as he put it, "a real possibility", that the children would be sent to Ghana, to the potentially serious detrimental effect on them, and to the profound psychological impact which Mrs Afrifa-Osew had brought upon himself.
26. He then considered the decision of this court in the well-known case of R v Petherick [2013] 1 WLR 1102, in which the court addressed the impact of the Article 8 rights of the children in a case where a defendant, facing an immediate sentence of imprisonment, is the primary carer of children. At paragraph 21 of the judgment the court, in considering the legitimate aims of sentencing, said:

"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."

27. At paragraph 22 the court commented:

"... 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."

28. The court went on in paragraph 23 to point out that the interference with family life which is inherent in a sentence of imprisonment is less likely to be disproportionate as the offence is graver.
29. Having reflected on the guidance given in that judgment the judge at page 22D to 23B expressed his conclusion as follows:

"Those words make what to me is an important point when one considers the justice of this case, where there are two families whose rights are to be considered. There is the family of the defendant and I am asked to focus and I do focus in particular on her young children, who in the event of an immediate custodial sentence being passed stand to lose their primary carer for what to them will be a significant period of time. But there is also the family of Mr Taylor who have lost a loving husband, father and grandfather forever as a result of the defendant's infringement of his and their rights by virtue of her dangerous driving.

The seriousness of the offence is a highly material consideration in determining the proportionality of imposing an immediate custodial sentence. This is emphasised by the Court of Appeal in Petherick. But as they say at paragraph 22, 'where the case stands on the cusp of custody, 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 mean that the custodial sentence otherwise proportionate may become disproportionate.'

It is in my judgment that 'on the cusp of custody' is where this case stands. As I have explained, application of the guidelines indicates that your culpability, taking account of your previous unimpeachable character, should result in a sentence at the bottom end of the sentencing range, in other words a sentence of 2 years' custody. Your conduct in making what was an appalling and catastrophic error of judgment and driving as you did for those few seconds in January 2016 killed Mr Taylor and has had a profound and lasting impact on his immediate family and his friends. But putting all the factors into the balance, as I must do, I have taken the view that it would not be just to compound the tragedy of Mr Taylor's death by causing your own young children the significant emotional deprivation and the devastating effect on their education that sentence to imprison their mother immediately might have. I have therefore arrived at the view that the custodial sentence which I must pass can and indeed should be suspended."

30. We are grateful to both counsel for their written and oral submissions in this difficult case. For Her Majesty's Attorney-General Mr Smith submits that applying the guideline, the judge should have started at 3 years' imprisonment and should indeed have increased that starting point because, he argues, that there was not just one feature which put the case into category 3 but two. Paragraph 3 on page 10 of the guideline indicates that a level 3 offence is likely to be characterised by one or more of five specific factors, and Mr Smith argues that two are relevant here: "A brief but obvious danger arising from a seriously dangerous manoeuvre" and "failing to have proper regard to vulnerable road users".
31. Mr Smith goes on to submit that the judge should then have treated it as an additional aggravating factor that there were two young children in Mrs Afrifa-Osew's car, particularly having regard to the reference in mitigation to the impact of the collision on her daughter. He submits that there were other factors which the judge should have regarded as aggravating the offence: the fact that the car had recently failed its MOT test, which he suggests indicates, at the very least, that Mrs Afrifa-Osew took insufficient interest in the roadworthiness of the vehicle she was driving; the fact that she suggested in interview that Mr Taylor may have been travelling at speed; her repeated untruthful account of other motorists stopping or slowing to allow her to make a U-turn; and the very severe impact of the offence on Mr Taylor's family. In the latter regard Mr Smith draws the attention of the courts to case law reflecting the increased focus on the harm caused whenever an offence results in a death.
32. Overall, Mr Smith submits that the judge was unduly lenient in reducing the custodial term from the guideline starting point of 3 years to 2 years. He goes on to acknowledge the personal mitigation available to Mrs Afrifa-Osew, but submits that the judge fell into error by using that mitigation first, as a reason to reduce the sentence down to 2 years, and then again to justify suspending that sentence.
33. As to the Article 8 balancing exercise required by Petherick, Mr Smith emphasises the need to take account, not just of the interests of the offender's family, but also of the interests of the victim's family. In that regard, he emphasises what was said at paragraph 21, to which we have referred. He submits that the learned judge did not give sufficient weight to that consideration. He particularly relies on the victim personal statements to which we have referred as showing the devastating impact on Mr Taylor's family.
34. Mr Smith also relies on the contents of the additional probation report now before the court. He invites this court to conclude that the prospect of the children in fact being removed to Ghana, if Mrs Afrifa-Osew is sentenced to immediate imprisonment, has become so remote that it can and should be discounted.
35. On behalf of Mrs Afrifa-Osew, Mr Lakha QC points to paragraph 3 on page 2 of the Sentencing Guidelines. The relevant passage is in these terms:

"Because the principal harm done by these offences (the death of a person) is an element of the offence, the factor that primarily determines the starting point for sentence is the culpability of the offender. Accordingly, the central feature should be an evaluation of the quality of the driving involved and the degree of danger that it foreseeably created."

36. Mr Lakha submits that the learned judge, having presided over the five-day trial and having heard all the evidence, including that of Mrs Afrifa-Osew, was in the best position to evaluate her culpability in terms of the quality of driving and the degree of danger which it foreseeably created. He submits that the sentence was a proper reflection of all the circumstances of the case which the judge was required to consider. He argues that the judge was fully entitled to make the findings he did and to conclude that, on a fair balancing of aggravating and mitigating factors, the guideline starting point of 3 years came down to a sentence of 2 years' custody.
37. Mr Lakha relies on Petherick. He submits that this was a case which could properly be regarded as being on the cusp of custody, at least in the sense that it was on the cusp of a sentence which might properly be suspended, and he argues that the interests of the innocent children could legitimately tip the scales in favour of suspending the sentence.
38. We have reflected upon those helpful submissions on each side.
39. We do not think that in the circumstances of this case the judge should have given more weight than he did to the condition of the vehicle which Mrs Afrifa-Osew was driving. He was entitled to find that any defects which existed were not relevant to the collision. That however is not a point which wholly assists Mrs Afrifa-Osew, because it focuses the court's attention on the quality of her driving. On any view that driving, though of short duration, was highly dangerous. This was a category 3 case, and the proper starting point, before considering aggravating and mitigating features, was 3 years. The real issues in the case focus, in our view, on whether the judge was unduly lenient, in both reducing that starting point from 3 years to 2 years and suspending the sentence of imprisonment.
40. We think it important to keep in mind that the court in Petherick, having pointed to the likely interference with family life consequent upon any prison sentence, and having focused on the need to consider whether that interference is proportionate in all the circumstances, then addressed two separate issues. At paragraph 22, in the passage which we have already quoted, the court considered the situation where a case "stands on the cusp of custody". The court, as we have said, then went on to note that the more serious the offence, the less likely it is that interference with family life consequent upon immediate imprisonment is disproportionate.
41. Then at paragraph 24, dealing with a distinct point, the court said that 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."

42. That distinction between the two separate points is now embodied in the Sentencing Council's Definitive Guideline on the imposition of community and custodial sentences. The guideline identifies a four-step approach for a court which is considering whether a custodial sentence must be passed. First, the court must consider whether the custody threshold has been passed. Secondly, the court must consider whether it is unavoidable that a sentence of imprisonment be imposed. In relation to this second question the guidelines says, among other things:

"For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing."

43. Thirdly, the court must ask: what is the shortest term commensurate with the seriousness of the offence? Fourthly, the court must consider whether the sentence can be suspended. At this last step the guideline indicates factors which should be weighed in considering whether it is possible to suspend the sentence.
44. As factors indicating that it would not be appropriate to suspend a custodial sentence the guideline indicates the following:

"Offender presents risk/danger to the public.

Appropriate punishment can only be achieved by immediate custody. History of poor compliance with court orders."

45. As factors indicating that it may be appropriate to suspend a custodial sentence, the guideline identifies

a. "realistic prospect of rehabilitation,

b. strong personal mitigation,

c. immediate custody will result in significant harmful impact upon others."

46. Applying that approach to the present case, we are not persuaded that the judge – having decided that a prison sentence was necessary - fell into the error of what might be called double counting of mitigating factors. The passages which we have quoted from his sentencing remarks show, in our view, the approach which he took. He took the guideline starting point of 3 years' imprisonment. He reduced that to 2 years' imprisonment which, as the passage at page 19D shows, he did by reference to the positive good character and testimonials to which he had referred on the preceding page. He then turned his attention to the Article 8 balancing exercise.
47. Pausing there, it seems to us that in all the circumstances of this case, the judge was entitled, by the process of reasoning which he explained, to reach his conclusion that the proper and just sentence for the offence was 2 years' imprisonment. That is not of course to say that it was not a serious offence, which had dreadfully serious consequences. It was and did. It is simply to try to put this offence into its proper place, when compared with other even more serious cases which come before the courts. In this regard it is perhaps worth noting that in the combined experience of the three members of this court, it is rare to find such powerful evidence of positive good character and of positive contribution to the benefit of others, including students who will be deprived of teaching and support if Mrs Afrifa-Osew were to be imprisoned, as we have read in this case.
48. Then at the fourth step in the sentencing process the judge, as it seems to us, reached his decision to suspend the sentence by reference to the likely effect on the innocent children of Mrs Afrifa-Osew. In the passage we have quoted from page 22D, it is entirely clear that the judge had well in mind that there was not simply one group of innocent victims, there were two. We, of course, have very much in mind that in most cases of this kind, adopting the words of the guideline which we have quoted, appropriate punishment can only be achieved by immediate custody. But the judge was entitled, in the exceptional circumstances of this case, to give particular weight to the impact on others.
49. From a reading of the supplementary probation report it seems to us the risk of the children being removed to Ghana is rather less today than it was at the time of sentencing. But we cannot say that the risk is not still present, and we cannot accept the submission of Mr Smith that it has been reduced to the point where it can effectively be discounted. In any event, there is strong evidence for concluding that these children will suffer significantly if their mother is imprisoned. It is clear that their father has played a far less substantial role than their mother in their day-to-day care.
50. Our lengthy exposition of these considerations perhaps underlines what a difficult sentencing exercise this was and is. It is an exceptional case, which turns on its own facts and which serves as no precedent for others. The judge applied himself to the difficult task he faced, both conscientiously and carefully. We cannot see any basis for criticising his approach.
51. The suspended sentence of imprisonment was certainly lenient but, in all the circumstances of this case, we have come to the conclusion that it was not unduly lenient. There is accordingly no ground on which it would be proper for this court to vary the sentence.

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