England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27 March 2018

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LORD JUSTICE SIMON:

1. This is the Solicitor General's application to refer a sentence of two years' imprisonment passed in the Crown Court sitting at Manchester Crown Square on 22nd January 2018 under section 36 of the Criminal Justice Act 1988 as being unduly lenient.
2. The sentence was passed on the offender, Glenn Wall, by His Honour Judge Field QC in respect of a single count of causing death by dangerous driving. The offender, now aged 35, was convicted of this offence on 4th December 2017 following a trial.
3. At about 5.30 on the afternoon of Monday 20th June 2016, the offender left his place of work in Rochdale to drive home in his Vauxhall Astra. The vehicle was licensed, insured and in roadworthy condition, and the offender held a full, clean driving licence. There was no suggestion that alcohol, drugs or mobile telephone use were factors affecting his driving.
4. Helena Thurm was 25 years old when she died. She had lived in the Altrincham area her whole life. She had travelled into Manchester that day for a job interview. She then did some shopping before returning home.
5. The A56 is a major arterial route from Manchester City Centre that links the M60 and M56. In June 2016 major junction improvement works were being undertaken at the junction of the A56 and the B5165 Park Road/Woodcote Road near Altrincham which included the installation of pedestrian crossing facilities. The road was subject to a 30 mph speed limit. As a result of the works, the southbound approach had been altered. The left hand lane was designated "left turn only". This was marked by four left turn arrows and a solid line, as well as an area of painted chevrons on the road designed to separate the flows of traffic. There was no Road Traffic Regulation Order in force in relation to the left turn lane, so failure to comply with the signage and road markings was not of itself an offence. Evidence was given at trial that a number of drivers routinely ignored the signage markings. The right-hand lane was designated "ahead only". A right turn was prohibited.
6. The offender's route took him south along the A56 Manchester Road. As he approached the junction and the lanes divided he pulled into the left hand lane designated for left turning traffic. When the traffic lights turned amber he did not stop, though he could have done so safely. He continued straight on into the junction, undertaking a vehicle in the right-hand lane that was slowing down to stop at the traffic lights. As he entered the junction the offender was driving too fast for the prevailing circumstances, but was not exceeding the speed limit. Helena Thurm had been at the south side of the junction for not less than 25 seconds, waiting to cross in a westerly direction. Her precise waiting point on the footpath was unknown. As the offender's vehicle passed through the junction she moved off the pavement and into the road. By the time she stepped into the road the collision was unavoidable. She walked 0.3 metres from the kerb edge to the point of impact in 0.2 seconds. At the point she stepped off the kerb, the offender's vehicle was 2.37 metres away from her, travelling at 29 to 30 mph. The vehicle struck Miss Thurm, throwing her into the air. The offender stopped his vehicle and telephoned the emergency services.
7. Miss Thurm was taken to hospital. She was in cardiac arrest and was found to have suffered numerous skull fractures, a catastrophic brain injury, as well as significant internal injuries. She died the following day at 1.18 pm.
8. The offender was spoken to at the scene. He told the police that he had gone through the traffic light on amber and was travelling at 30 mph. This assessment of speed was later supported by the prosecution's expert evidence at 29-30 mph. The offender claimed that Miss Thurm holding a mobile telephone stepped out in front of his car. He swerved to avoid her, but hit her. A formal interview took place on 13th July 2016 when he gave a similar account. He stated that when the lights changed to amber he was four car lengths behind the stop line and did not wish to perform an emergency stop, so he carried on through the stop line.
9. Apart from a caution in 2008 for possession of cannabis, the offender has no previous convictions or cautions recorded against him. There were no endorsements on his driving licence. He is married and had a full time job as an IT operations manager. Since the incident, he had undertaken three periods of counselling and cognitive behavioural therapy. He has flashbacks of the collision.
10. The court was provided with seven character references which this court has also seen. Those references spoke to his positive good character, in particular his excellent work ethic and trustworthiness, his honesty, his work in raising money for charity in particular Macmillan Cancer Support, his previous good driving record in the experience of those who had been in vehicles with him and to the fact that he is kind and supportive to those in need.
11. A pre-sentence report assessed him as posing a low risk of re-conviction and a medium risk of serious harm. The writer of the report stated: "Despite still feeling that the offence was a tragic accident, [the offender] did present with what I felt was genuine remorse in my interview".
12. Personal statements were before the court from Sandra Thurm and Stephen Thurm, Helena's mother and brother. They read their own statements to the court at the sentencing hearing. The statements spoke of the catastrophic effect the loss of Helena had had on the whole family. This included a large number of family members suffering post traumatic stress disorder and other serious mental ill-health consequences. Her parents are now unable to work as a result of the depression and anxiety from which they now suffer. They have had to give up their nursing and teaching careers. Stephen Thurm, Helena's brother, an architect, had also sunk into a deep depression and was unable to work. The entire family expressed how they found it particularly upsetting that the offender blamed Helena for her own death.
13. In sentencing the offender, the judge made the following findings. The offender had no intention of driving dangerously. There was no evidence of other bad driving during the journey, other than in the few moments leading up to the fatal collision. While he had approached the traffic lights in the wrong lane, that did not directly cause the collision, though it did amount to an aggravating factor as it involved the apparent disregard of lane closure signs. The offender could have stopped safely at the traffic lights without causing a risk to other traffic when the lights changed to amber. He chose not to. While he did not reach the speed limit, he continued into the junction at a speed that was too fast in the prevailing circumstances which included:

The fact that on the opposite side of the junction and there for all to see was a pedestrian waiting to cross the road at a designated crossing place. She was there to be seen by [the offender], [who] failed to spot her and as a result [the offender] did not see heed her presence, [he] did not adjust [his] speed or cover [his] brake in case she stepped from the pavement in front of [him], as in fact happened.

14. In relation to Helena Thurm the judge found:

The fact that Helena undoubtedly stepped from the pavement into the path of your approaching vehicle does not, in my judgment, diminish your culpability one jot.

... There is of course a chance that Helena Thurm might have been misled by your position in the road, but we will never know whether that was in fact the case.

15. In relation to the prosecution submission that the offender had falsely claimed that the collision was the fault of the deceased, the judge said:

In the context of this case, and particularly in the light of the expert evidence not only that was heard in the course of the trial but that appears in the various reports that I have read, I do not conclude that this was an aggravating feature that I can properly take into account in respect of sentence.

16. Mr Polnay, who appears for the Solicitor General, reminds the court that the maximum sentence available in respect of causing death by dangerous driving is 14 years and that there are definitive guidelines for offences of causing death by dangerous driving. The first step in applying the guideline is to determine the offence seriousness. There are three levels. Level 1 is defined as "the most serious offences encompassing driving that involved a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others." Level 2 is defined as " ... driving that created a substantial risk of danger". Level 3 is defined as: " ... driving that created a significant risk of danger".
17. The guideline states that Level 3 is likely to be characterised by driving above the speed limit:

... at a speed that is inappropriate for the prevailing road conditions, or driving when knowingly deprived of sleep ... or knowing that the vehicle has a dangerous defect ... or a brief but obvious danger arising from a seriously dangerous manoeuvre or driving while avoidable distracted or failing to have proper regard to vulnerable road users.

18. The guideline further states at paragraph 3 of the offence guidelines at page 10:

The 3 levels are distinguished by factors related predominantly to the standard of driving; the general description of the degree of risk is complemented by examples of the type of bad driving arising. The presence of aggravating factors or combinations of a small number of determinants of seriousness will increase the starting point within the range. Where there is a larger group of determinants of seriousness and/or aggravating factors, this may justify moving the starting point to the next level.

19. Having made the findings we have set out, the judge said this in relation to categorisation:

I have concluded that this is a Level 3 case. Your driving was driving that created a significant risk. I have looked carefully as to whether the combination of factors of you driving too fast in the circumstances and failing to have proper regard for the pedestrian on the opposite side of the junction, is such as to increase the risk from what is regarded as significant to what is regarded as substantial. I have looked at the various features under Level 2, and it seems to me that an appropriate categorisation of this case is indeed Level 3, a significant risk created by the manner in which you drove.

20. A Level 3 offence has a starting point of three years' custody with a category range of two to five years.
21. Mr Polnay submits that the following aggravating and mitigating features are present. An aggravating factor was the offender's disregard for lane markings. Mitigating factors were the offender's previous good character and driving record, his attempts to assist the deceased at the scene, his genuine remorse and his excellent work record.
22. The Solicitor General submits that the sentence passed was unduly lenient in that on the findings made by the judge there were two determinants of seriousness: inappropriate speed and failing to have regard for a vulnerable road user. This should have resulted in an uplift applied to the Category 3 starting point. A further uplift should then have been applied in relation to the aggravating feature that the offender carried out an undertaking manoeuvre, using the wrong lane and passing through an amber light. Even if not causative of death it is submitted that this is an aggravating feature of some weight. While it is accepted that there were mitigating factors in this matter, Mr Polnay submits they are not of such weight that they would not only counterbalance the multiple determinants of seriousness and aggravating features, but also result in a sentence at the very bottom of the category range.
23. For the offender, Mr Dawson submits that the judge having presided over the trial was in a very good position to assess the culpability of this offending. The inappropriate speed in the conditions and the failure to have regard to a vulnerable road user were what made the driving dangerous and it was this that made it a Level 3 offence with a starting point of three years. Against this there was substantial and powerful mitigation which justified the reduction as the judge found.
24. We have considered these submissions. We start with an important feature of this and other cases where death has been caused by a crime, dangerous or careless driving. It is a feature reflected by the victims' statements in this case. There is the devastating immediate sense of shock amongst members of the family at the sudden totally unexpected disaster of the death of someone who is loved. If the immediate sense of devastation recedes it is then replaced by a numbing sense of loss and regret which will continue throughout their lives. The death of a daughter and a sister is never forgotten and the thoughts of what has been lost in terms of a future which has been destroyed continue. While the family may feel there is no sentence which can possibly reflect their loss, a matter that the judge specifically acknowledged in his sentencing remarks, and while the sentencing system takes into account the feelings of the family and the harm which is caused, (the death of the victim), the process itself focuses on culpability, bearing in mind that the death caused by the driving was neither intended nor foreseen.
25. In the present case, we are satisfied that the judge was correct to place the driving at Level 3. There was a significant risk of danger. This was not a Level 2 offence. The examples given involve distinctly greater levels of culpability, for example greatly excessive speed, competitive driving and composing text messages over a period of time. While Level 3 factors may collectively or even in isolation create a substantial risk of danger, in our view the judge was entitled to take the view that this was Level 3 offending, notwithstanding those factors identified by Mr Polnay; the offender's disregard for lane markings and his failure to have proper regard for Helena Thurm. We see the force of Mr Dawson's submissions in this respect.
26. On this basis the starting point was a term of three years. Against this was to be weighed the mitigation - his good driving record over considerable distances for a period of 15 years, his attempts to assist the victim at the scene and, despite the doubts of Helena's family in the light of his defence at trial, what we take to be his genuine remorse as recognised by the Solicitor General. These are all specific matters of personal mitigation referred to in the guideline at paragraphs 26 to 29 which may be taken into account and may justify a reduction in sentence. There was also the offender's positive good character and his good work record. The letters written in his support are persuasive of his qualities.
27. The judge had presided over the trial and was in a good position to assess the offender's culpability. In his sentencing remarks he carefully considered the relevant guideline and set out the matters of aggravation and mitigation which bore on his sentencing decision before passing a sentence of two years' imprisonment. He rightly considered the guideline on the imposition of community and custodial sentences, but concluded that he could not properly suspend the sentence. In our judgment, this was not an unduly lenient sentence. Accordingly, although we grant leave to refer, we will not interfere with the sentence.