England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice The Strand London WC2A 2LL
		16th February 2018

LORD JUSTICE DAVIS:

1. This is an application brought on behalf of the Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer to the court a sentence on the ground that it is unduly lenient. We grant leave.
2. The offender is Anthony Howell. He is now aged 32, having been born on 31^st October 1985. On 28^th November 2017, following a trial in the Crown Court at Kingston before His Honour Judge Lodder QC (the Recorder of Richmond Upon Thames) and a jury, he was convicted of causing death by careless driving, contrary to section 2B of the Road Traffic Act 1988 (count 1) and also of doing an act tending and intended to pervert the course of public justice (count 2).
3. On 21^st December 2017 he was sentenced by the trial judge on count 1 to six months' imprisonment suspended for two years, with a 200 hour unpaid work requirement, a 60 day rehabilitation activity requirement and a six month curfew from 7pm to 7am; and on count 2 he was sentenced to a consecutive term of four months' imprisonment suspended for two years on like terms. In addition, he was disqualified from driving for five years and until an extended retest was passed. His licence was endorsed with nine penalty points, albeit that was subsequently corrected administratively. (Although the transcript refers to the judge imposing a 60 hour rehabilitation activity requirement, that is clearly a slip or a transcription error. The record should be read as a 60 day rehabilitation activity requirement.)
4. The background facts leading to the offender's convictions are these. Mr Adinajib Awale was 31 years old when he died on 2^nd May 2015. On that date the offender was driving his silver Vauxhall Insignia car. It was a four door saloon which was taxed, insured and entirely roadworthy. The offender held a full driving licence. There was no suggestion that he was driving under the influence of drink or drugs.
5. In the early hours of the morning, at 2.46am, on 2^nd May 2015, Mr Awale got off a bus and Balham High Road and walked towards Streatham. His route took him east against the north side of Tooting Bec Road towards a junction with Dr Johnson Avenue. He was wearing a black jacket, medium grey trousers and dark shoes. He had consumed some alcohol that evening. It appears from subsequent toxicology tests that his blood alcohol concentration at the time of death was 134mg per 100ml. The drink-driving limit is 80mg per 100ml. That would be suggestive of what was said to be average social drinking and a degree of mild or moderate intoxication.
6. Tooting Bec Road is in an urban environment. It is well-lit with street lighting. It was subject to a 30mph speed limit. Dr Johnson Avenue is also well-lit and was subject to a 20mph speed limit.
7. As Mr Awale sought to cross Dr Johnson Avenue, the offender was driving his car along Dr Johnson Avenue intending to turn right at the junction. Mr Awale would have been visible to traffic travelling south along Dr Johnson Avenue, although plainly the time of visibility would be measured in but seconds. Likewise, the offender's car would have been visible to Mr Awale. The vehicle's headlights were on. It was accepted that it was driving at an appropriate speed.
8. In the event, the offender cut across the centre of the road when turning into Tooting Bec Road and in doing so hit Mr Awale, who was knocked to the ground. Mr Awale suffered severe injuries. In due course, it was discovered that a mark matching the offender's front offside tyre was imprinted on Mr Awale's trousers.
9. The offender's car was damaged. The damage included a spider-shaped crack to the windscreen close to the base of the offside A-pillar and "deformation" to the rear of the front offside wheel arch. It was not possible to ascertain the precise point of impact from the physical damage to the windscreen and the mark created by the front offside tyre. It appeared that the first point of impact was on the right-hand side of the vehicle, around the front tyres and near the windscreen area. That would be entirely consistent with the car cutting across with a view to turning right into Tooting Bec High Road.
10. The offender did not stop. Mr Awale was found in the road a short time later by other car drivers and the emergency services were summoned. Sadly, despite medical attention, he was pronounced dead at 3.37am.
11. On the evening of 2^nd May the offender telephoned the police seeking a crime reference number to assist him in making an insurance claim in relation to damage to the front of his car's windscreen. He stated in the telephone call that the damage had been caused by someone throwing something towards his car which had hit his windscreen. He said that the object had been thrown when he was turning into Tooting Bec Road at around 3am. He said that there were no other cars around at the time of the damage. He also said that it might have been a branch that had caused the damage, but as there had been people nearby when he felt a bang on his windscreen, he assumed that someone might have thrown something at his car.
12. He was called back by the police on 3^rd May. He then repeated the same account. It was these telephone conversations which were to be the subject matter of count 2 on the indictment.
13. The police attended the offender's house on 4^th May 2015 and examined the offender's vehicle. He was then arrested on suspicion of causing death by careless driving.
14. When interviewed under caution he said that he had gone out in the early hours of 2^nd May in order to buy some chicken. He said that his journey had taken him through Tooting Bec and he had turned right into Tooting Bec Road. At some point along this road he had heard a loud bang to his windscreen which had caused it to break. He said that, given the time, he did not stop to see what had caused the damage, but had carried on driving to his girlfriend's. He denied being responsible for the fatal collision involving Mr Awale. That was the account he maintained at trial. The jury did not believe him.
15. At the time of the collision, the offender had three penalty points on his driving licence. They had been imposed on 21^st May 2012 as a result of having driven his car whilst using a mobile telephone. In addition, he had a conviction dating back a considerable period of time to 2002, when he was a teenager, for an offence of possessing an imitation firearm with intent to cause fear of violence and a further offence of assault occasioning actual bodily harm. It appears that that related to some kind of neighbour dispute. More recently, in July 2016, he had a conviction for common assault which apparently involved some kind of domestic violence. He was subject to a community order with a rehabilitation activity requirement.
16. A pre-sentence report was before the sentencing judge. In the course of the pre-sentence report it is recorded that the offender expressed sorrow for the victim's death and sorrow for his family. It was recorded that he accepted the guilty finding "as God's will". The assessment was that, as he had now been found guilty, he showed some understanding for the loss of life involved.
17. It appears that on occasion the offender has struggled with depression. He also has responsibilities for caring for his 83 year old grandfather. The assessment of the author of the report was that the likelihood of re-offending was low.
18. After referring to the Sentencing Council guidelines and other matters relating to the offender, the author concluded in this way:

"In the event that the court is able to draw back from an immediate custodial sentence, my proposal is for a suspended sentence order with a curfew and specified activity requirement…"

19. Also before the sentencing judge was a moving Victim Personal Statement from the deceased's brother. It sets out the effect of the death on the deceased's family. Amongst other things, it appears that Mr Awale had been but recently married and was the sole provider for his wife. The brother said:

"Once we had received the news, it felt like our souls had left our bodies and would never return."

20. The judge was, of course, referred to the relevant guideline relating to causing death by driving. It was accepted that this was a category 2 case. It was a category 2 case essentially because of the presence of the aggravating factor consisting of the failure to stop by the offender. The maximum available sentence under statute is one of five years' imprisonment. For category 2 offending, the guideline proposes a starting point after trial of 36 weeks' custody, with a sentencing range of a high community order up to two years' custody.
21. The judge had the benefit, as Mr Tomassi then as now appearing for the offender has stressed, of having had the conduct of the trial. He was aware of the entirety of the evidence and all the circumstances of the case. In the course of his sentencing remarks the judge said this:

"You gave a story that you were worried that you were under attack. In my judgment, you knew exactly what you had done, albeit you may not have realised that [Mr Awale] was killed. You did not stop. You decided to keep driving.

It is clear to me that over the following hours you were worried that your involvement would be detected and so you set about minimising your responsibility. …"

The judge then dealt with the telephone calls to the police and then said this:

"During [the] trial, and particularly whilst you gave evidence, you appeared to me to be rather more concerned for your own welfare than you were for the victim of your crime. …"

The judge referred to matters relating to the offender and his antecedent history. He concluded, correctly, that the custodial threshold had been passed. The judge indicated that he would take a figure of six months' imprisonment for count 1, which he rightly characterised as category 2 offending; and he further indicated that on count 2 the appropriate sentence was four months' imprisonment, to run consecutively, thereby yielding a total of ten months' imprisonment. The judge then said this:

"I have reflected carefully upon whether that should be immediate or should be suspended. Perhaps over-generously I have decided to suspend it, but I do so conscious of the other orders that are available, which I will impose."

The judge then imposed the sentence, with the requirements, as we have already indicated.

22. Cases of causing death by careless driving create particular difficulties. On the one hand a life – an irreplaceable life – has been taken away by reason of driving which has fallen below an acceptable standard. On the other hand, the driver has had no intention whatsoever and no desire whatsoever to cause any harm to the unfortunate victim.
23. In the present case it is, in effect, said that here the default was relatively momentary – no more than a second or so. Nevertheless, it is the fact that by reason of the offender's careless driving the victim has died.
24. At all events, whilst the judge chose to take a figure below the starting point suggested in the guideline, Mr Polnay, appearing on behalf of the Solicitor General, has fairly accepted that, simply taking count 1 on its own, he would not seek to challenge a sentence of six months' imprisonment as unduly lenient. Nor would he seek to challenge the decision then to suspend it as unduly lenient. However, he would say that, overall, such a sentence was very generous on count 1, taken on its own.
25. However, a particular feature of this whole case is not only that the offender did not stop after the collision, which was reprehensible enough in itself and an aggravating factor for the purposes of the guideline, but he then, and in order to try to cover himself, dishonestly concocted a story about being attacked or struck by people or by a branch. He maintained that story twice in telephone conversations with police. (It was a story he thereafter maintained up to and including trial.) In the result, that achieved nothing. Indeed, all it achieved was to draw attention to himself. Nevertheless, his actual intent was, on the jury's findings, clear enough.
26. We have had our attention properly referred to a number of authorities relating to offences of perverting the course of justice. It has been stated on frequent occasions by the court that, as a matter of principle, offending involving perverting the course of justice will ordinarily, and in the absence of exceptional reasons, require an immediate custodial sentence: see, for example, the decision of a constitution of this court in Attorney General's Reference No 35 of 2009 [2010] 1 Cr App R(S) 61. It was stated that perverting the course of justice is so serious that it is "almost always" necessary to impose an immediate custodial sentence, unless there are exceptional circumstances. That position has recently been reiterated in the decision of a constitution of this court in R v Cronin [2017] EWCA Crim 1357. Moreover, as to the factors identified in R v Tunney [2007] 1 Cr App R(S) 91, Mr Polnay has made the following submissions. First, by reference to the seriousness of the substantive offence, here the substantive offence was serious in that it involved loss of life and, further, the offender knew that he had collided with a person, albeit he may not have realised that he had killed him. Mr Tomassi stresses that here there had been momentary and inadvertent carelessness. Maybe so: but the fact remains that this was a serious offence which in fact involved the death of an innocent pedestrian. Second, so far as the degree of persistence is concerned, the false account was maintained in two telephone calls to the police (and, of course, thereafter was maintained at trial). Third, as to the effect of the attempt, the attempt was wholly unsuccessful in diverting attention away from the offender. Nor had he attempted to implicate any named, innocent individual. On the contrary, as we have said, the attempt was only successful in the sense that he, in fact, inadvertently drew attention to himself.
27. It being the general principle that sentences of immediate custody are usually required in cases of perverting the course of justice – and indeed some of the authorities show sentences of considerable length in this context, on appropriate facts – one then looks here to see what were the exceptional circumstances present which caused the judge to suspend the overall sentence as he did. Unfortunately, the judge identified no such exceptional factors. He acknowledged that he was acting at least "perhaps over-generously"; but he articulated no reasons for acting in a way which was "perhaps over-generous". Certainly there was no mitigation in terms of any plea or (until the conclusion of the trial) remorse. Indeed, one wonders just what sentence the judge would have, overall, imposed had there been an early guilty plea and remorse on both counts.
28. Mr Tomassi, on behalf of the applicant, submits that this was a carefully considered sentence by a highly experienced judge who had had the benefit of hearing the trial. Mr Tomassi submits that his sentence was purposive and constructive. Yes, he agrees, this was a lenient sentence; but leniency and justice can readily go hand-in-hand, and the judge was entitled to take a merciful view. Mr Tomassi described this sentence as being "sensible and proportionate". He further noted the stringent requirements attached to the suspended sentence order, including, amongst other things, a curfew requirement, as well as an unpaid work requirement and rehabilitation activity requirement, all of which impact upon the liberty of the offender. He also submits that it is artificial to draw a distinction between counts 1 and 2. He says that there is a "crossover" between the two in that the failure to stop was then followed by the phone calls to the police, seeking to put the police off the scent. Mr Tomassi in fact submits that, overall, this sentence was "in the public interest".
29. Where a sentencing judge decides to suspend a sentence, that of course is, generally speaking, a matter of the exercise by discretion by the judge, with which the Appellate Court will ordinarily be very slow to interfere. But, so far as the public interest is concerned, the courts have, in effect, decided where the public interest lies in cases of perverting the course of justice. The public interest lies – and for very obvious reasons – in ordinarily imposing immediate custodial sentences. We invited Mr Tomassi to identify factors, albeit not specifically mentioned by the judge, which might here constitute exceptional circumstances justifying the judge in refraining from imposing an immediate custodial sentence. With all respect to his efforts, Mr Tomassi struggled to produce any exceptional circumstances of any relevant kind. Certainly insofar as he sought to place reliance on the pre-sentence report, that provides nothing in the way of exceptional circumstance which one might accept as justifying deflection away from an immediate custodial term. Indeed, the author of the pre-sentence report can hardly be said to urge a non-custodial sentence. The report is framed much more cautiously than that. Further, whilst it is right that, since the trial, the offender has shown remorse, as indeed he ought to, it is the case, as confirmed by the judge himself, that up to and including the trial he was far more concerned for himself than he was for the victim's family or for the truth to come out. It is also right to say that the offender is a carer for his grandfather. It is not urged, however, that that factor of itself could constitute an exceptional circumstance which would cause what otherwise ought to be an immediate custodial sentence to be suspended.
30. Whilst, of course, we must respect the considered decision of the trial judge, it is a feature of this case that he has offered no reasons for his decision to suspend the sentence in the circumstances of this case. In our view, there are no sufficient reasons to justify the imposition of a suspended sentence. It is important that the courts, absent special factors, adhere to the principle that perverting the course of justice will normally attract an immediate custodial sentence. Nor was this by any means something that can be described as a relatively trivial offence of its kind, if that were even possible in principle. The lie was quite deliberate. The offender repeated it twice to the police; and it was all in the aftermath of his having collided with (and in the event killing) a pedestrian walking quietly home at night. In our view this was a bad case of its kind.
31. Of course, it is for this court to decide whether this sentence was unduly lenient. Looking at matters in the round, our conclusion is that it was unduly lenient. Looking at matters in the round, our conclusion is that it was unduly lenient. Neither the overall custodial term nor the decision to suspend can be maintained. We say that bearing in mind all the points that Mr Tomassi has urged upon us.
32. We have to consider what, as a matter of totality, is the appropriate immediate sentence in this case. We would have expected in the circumstances on count 1 a sentence close to or at the starting point indicated in the guideline. On count 2, we would have expected a sentence that might have been as much as, or approaching, twelve months' custody.
33. However, we do, of course, have to bear in mind such mitigation as is available. We also have to bear in mind that stringent restrictions were attached to the suspended sentence order with which the offender has thus far complied, both in terms of the curfew and in terms of unpaid work and the rehabilitation activity requirement. We also bear in mind that, when he left court, the offender was not the subject of an immediate custodial sentence, which is the sentence he now faces.
34. In all the circumstances, the conclusion of this court is that the appropriate sentence overall is one of sixteen months' immediate imprisonment. We propose to structure that sentence in the following way. There will be eight months' imprisonment on count 1 and there will be a consecutive term of eight months' imprisonment on count 2. To that extent the appeal of the Solicitor General is allowed.
35. In relation to the offence of causing death by careless driving, the offender will be disqualified from driving for four years and four months, with a four month extension under section 35A and a four month extension under section 35B of the Road Traffic Offenders Act 1988; which in practice makes the total of five years' disqualification the judge had in mind.
36. The offender must surrender to Wandsworth Police Station by 10.30am tomorrow morning.
37. Finally, we make an alteration to the victim surcharge order which was imposed in the sum of £100. It should, we gather, be £140.
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