Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Ronge, Christensen MBE, Le Cornu, Cornish, Opfermann, Entwistle, Berry |
The Attorney General
-v-
Dylan John Pounds
M. R. Maletroit Esq., Crown Advocate.
Advocate I. Jones for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1. When the Defendant was sentenced on 9 December 2024, we indicated that we would give additional reasons for our decision in writing in due course. The sentencing remarks have now been reported at AG v Pounds [2024] JRC 270 and we do not need, in general terms, to set out the facts which led the Court to impose the sentences which it did, as they are adequately set out in the sentencing remarks.
2. The purpose of these additional remarks is to explain the sentences imposed in relation to the counts which attracted custodial sentences, a matter which is touched on at paragraphs 16 to 18 inclusive of our published sentencing remarks.
3. The Defendant was sentenced to ten years imprisonment concurrent and twelve years disqualification from driving concurrent on two counts for offences of causing the deaths of Dean and Charlie Lowe respectively by dangerous driving. The maximum sentence for causing death by dangerous driving in Jersey is ten years imprisonment and this was the sentence that was imposed by the Court. Various Jersey cases were cited to us including AG v Luis [2007] JRC 233, where the Royal Court, when considering sentencing (in that case, an offence of causing death by careless driving when under the influence of alcohol) paid close attention to the decision of the English Court of Appeal in Regina v Cooksley [2003] All ER 40, which was described at paragraph 7 in that judgment as providing "a useful guide to determining the appropriate length of sentence for offences of this kind".
4. The decision of the Court of Appeal in Cooksley took place when the maximum sentence for causing death by dangerous driving in England and Wales was ten years imprisonment. It has since been increased on two occasions. First, to fourteen years imprisonment, and now, most recently, to life imprisonment. It is noteworthy that the Court of Appeal guidance in Cooksley was based on the Sentencing Advisory Panel as to the appropriate sentence which, of course, has no application to Jersey and in any event such guidance has now been replaced by Sentencing Council Guidelines which again have no application to Jersey. In our judgment, it was not now appropriate to follow the guidance in Cooksley in terms of sentencing levels which would have, having regard to paragraph H4 of the judgment in Cooksley, perhaps resulted in a sentence of less than ten years imprisonment. Nonetheless, it was recognised by the Court of Appeal that it would be appropriate in certain circumstances for the maximum statutory sentence to be imposed. As Woolf LCJ said when giving the judgment of the Court, at paragraph 12, there has been "an upward trend" in the severity of sentencing in such cases which has continued both in England and Wales and, indeed, in Jersey. The Court of Appeal's assessment at paragraph 14 that culpability (as opposed to harm caused) "must be the dominant factor" when assessing the level of seriousness of the crime, is perhaps no longer the appropriate yardstick, particularly when more than one death has been caused as a consequence of dangerous driving.
5. The Court of Appeal then went on to set out a number of aggravating features at paragraph 15 of the judgment of the Lord Chief Justice, and also mitigating factors such as a good driving record, the absence of previous convictions, a timely plea of guilty, genuine shock or remorse, the offender's age (in cases where lack of driving experience contributed to the offence) and that the offender had also been seriously injured as a result of the accident. None of these mitigating features were available to the Defendant in this case.
6. The Court of Appeal accepted at paragraph 19 that the causing of more than one death is a relevant factor as to length of sentence and noted "that is the view that will be taken by the public". Nonetheless, the Court of Appeal said, "We are certainly not suggesting that the sentence should be multiplied according to the number of persons who sadly lose their life".
7. The Court observed:
"While the sentence is increased to reflect more than one death the sentence must remain proportionate to the nature of an offence which does not involve any intent to injure."
8. It needs to be borne in mind in sentencing such cases that any defendant who has an intent to cause death or really serious injury when driving a vehicle and causes death, is likely to be charged with murder and not causing death by dangerous driving.
9. The Court of Appeal accepted at paragraph 31 that in the most serious cases the maximum sentence of ten years could be imposed. An example was given of R v Noble [2002] EWCA Crim 1713, ("Noble") where such a sentence was imposed by virtue of the fact that there was more than one death, the defendant was driving at an excessive speed whilst two and a half times over the alcohol limit, and then sought to avoid responsibility by claiming one of the victims had been driving. In Noble, the Court of Appeal observed:
10. Accordingly, in that case, although there were six offences of causing death by dangerous driving as six members of the public had been killed, the Court of Appeal held that the sentences should run concurrently making a total of ten years imprisonment.
11. In this case, we took the view that the fact that two members of the public were killed by the Defendant's driving was a gravely aggravating feature and was one of the principal reasons for our decision that the maximum sentence should be imposed. Nonetheless, we generally agreed with the approach taken by the English Court of Appeal in Noble and accepted that usually it is not appropriate in circumstances such as this to impose a consecutive sentence.
12. We have also had regard to the aggravating features set out by the English Sentencing Council Guidelines as published and noted the presence of a number of factors which would put the offence in the category of greatest culpability, namely:
(i) Ignoring the rules of the road and disregard for the risk of danger to others;
(ii) Driving highly impaired by consumption of alcohol;
(iii) Speed significantly in excess of the speed limit and / or highly inappropriate for the prevailing road conditions.
13. As to the effect of the offending, the guidelines indicate that:
"The starting points and category ranges below relate to a single offence resulting in a single death. Where more than one death is caused and they are charged in separate counts, or where another offence or offences arising out of the same incident or facts is charged, concurrent sentences reflecting the overall criminality will be appropriate.
Where more than one death is caused and they are all charged in a single count, it will be appropriate to make an upwards adjustment from the starting point within the relevant category range before consideration of other aggravating features and mitigation."
14. In addition to features of the offence in this case which, in accordance with the relevant English guidelines, puts the Defendant's conduct in the most serious category for culpability, there is also the presence of other aggravating features identified by those guidelines, including the fact that the victims were vulnerable road users, which includes pedestrians for these purposes, and that the Defendant failed to stop.
15. As to the offence of failing to stop and report an accident, the sentence imposed at Count 3 was six months imprisonment concurrent to the ten years imprisonment for causing death by dangerous driving. Six months imprisonment is the maximum sentence permitted by statute, and the Defendant did not benefit from a reduction from that figure notwithstanding his plea of guilty. It is well established that in the case of sentences with low statutory maximum (for example, driving with excess alcohol), it is sometimes necessary and appropriate to impose the maximum sentence permitted by statute, notwithstanding a guilty plea. It is very difficult to conceive of a more serious offence of failing to stop and report an accident than this. As the Court observed in its remarks at paragraph 11, the Defendant must have known instantly that he had been involved in an accident owing to the damage to his vehicle -“ including being immediately showered in glass from the fractured windscreen. Any competent and careful driver would have stopped immediately. The Defendant made no attempt to call the emergency services and drove home via a circuitous route. The Court found that the Defendant had failed to stop because he knew he was drunk and knew that he had been involved in a collision.
16. We also imposed the statutory maximum, two years imprisonment, for dangerous driving subsequent to the collision causing the deaths of Dean and Charlie Lowe. We ordered this period of imprisonment to run consecutively.
17. The circumstances of the offence of dangerous driving post collision were set out at paragraphs 12 and 13 of the Court's sentencing remarks and do not need to be repeated. This was an extremely serious offence of dangerous driving and the maximum sentence permitted by statute was warranted in view of the absence of any mitigating features attracting to the driving and a number of aggravating features. This was a separate piece of driving, and it was appropriate to impose a consecutive sentence of imprisonment. A period of five years disqualification from driving was also imposed.
18. On the second indictment, the Defendant pleaded guilty to being concerned in the supply of cocaine, a class A drug. The maximum sentence for this offence is life imprisonment. The leading authority is Rimmer v AG [2001] JLR 373. The Defendant was closely concerned in the supply of at least seven grams of cocaine to several individuals between December 2021 and August 2023. A starting point of seven years imprisonment was adopted by the Crown. Having regard to the Defendant's guilty plea and the principle of totality, the Court imposed a consecutive sentence of three years imprisonment in relation to this offence.
19. Finally, on the indictment concerning drugs offences, the Defendant was also convicted of being concerned in the supply of cannabis. This is an offence carrying a maximum sentence of fourteen years imprisonment. The Defendant was concerned in the supply of at least twenty-seven grams of cannabis over a six-month period between December 2021 and June 2022.
20. The quantity of cannabis involved fell well below the guidelines set out by the Court of Appeal in Campbell v AG [1995] JLR 136. Nonetheless, it was appropriate, having regard to the Defendant's role and involvement in the trafficking of the cannabis, to impose a custodial sentence concurrent to the offence involving the supply of cocaine. The Court imposed a concurrent sentence of six months imprisonment.
21. The Crown called for a total sentence of fourteen years and six months imprisonment, and ten years disqualification from holding or obtaining a driving licence, with a subsequent compulsory re-test. The sentence imposed by the Court was fifteen years imprisonment, and twelve years disqualification from holding or obtaining a driving licence, with a re-test required.
Authorities
Regina v Cooksley [2003] All ER 40