Abstract
On 27 April 2018, Robert Brown (B) pleaded guilty at a plea and trial preparation hearing (PTPH) to two counts of causing death by dangerous driving contrary to s. 1 Road Traffic Act 1988 and one count of driving while disqualified contrary to s. 103(1)(b) of the Road Traffic Act 1988 and Sched. 2 of the Road Traffic Offenders Act 1988.
B was sentenced on 27 April 2018 to concurrent terms of nine years imprisonment for each count of causing death by dangerous driving and four months for driving while disqualified. Pursuant to ss 34 and 35A of the Road Traffic Offenders Act 1988 he was disqualified from driving for a total period of 15 years and ordered to take an extended driving test. He was also sentenced in relation to summary driving offences for which no separate penalty was imposed.
The offence took place on 22 February 2018 in Coventry. A group of three mothers and their nine children were crossing a road in a built-up residential area. The speed limit was 30 mph. The group had checked that it was safe to cross the road and began to do so, the children being under control of the mothers.
B was in a car with a woman, Harrison (H). B was observed to be driving well over the speed limit by witnesses who said he was driving ‘like a mad man’ and ‘at motorway speeds’. His driving position was said to be ‘lent right back with an arm high up on the wheel like a boy racer’. B overtook a van and a taxi, cutting in front of them at such speed that his vehicle was seen to wobble. He accelerated until he was travelling at 70 mph and had the group of mothers and children clearly in sight over 100 metres away. The evidence relied on by the prosecution stated that a competent driver travelling at 60 mph would have been able to stop over 20 metres before the group. It is noteworthy that B had never held a driving licence.
The car hit two of the children with what appeared to be no effort made to avoid them. B only began to brake immediately prior to impact. The two children aged 2 and 6 were thrown into the air and died from the multiple injuries that they sustained.
B drove off but stopped the car nearby. He returned to the scene with H who told people that she had been driving the car. A man tried to prevent B from leaving the scene but was struck by H. Both fled and hid in a nearby garden. Both were subsequently arrested.
B was uncooperative with the police. He made no comment when interviewed before changing his account to blame a third party (not H) for the offence saying they jumped from the car after impact. When confronted with evidence of this being a lie, B told the interviewing officer to ‘shove it up your fucking arse’.
Blood from B was analysed and showed that he had 4.5 times the legal driving limit of cocaine in his body. He had also consumed sedatives.
He had an appalling record of prior offending with 57 convictions for 209 offences. He had previously been incarcerated and had been released on licence 6 days before this offence. He had never held a driving licence and had 30 convictions for driving while disqualified.
The Judge described the level of seriousness as very high and concluded that it fell within level 1 of the Sentencing Guidelines for causing death by dangerous driving. A number of aggravating factors were identified: (i) two children died, (ii) the nature and extent of B’s previous convictions, (iii) B was disqualified from driving and had never held a licence and (iv) B’s conduct in failing to stop, fleeing the scene and falsely claiming not to be the driver.
The maximum sentence for death by dangerous driving is 14 years imprisonment. The starting point for a level 1 offence is 7 years with a range of 7 to 14 years. The Judge decided that the correct starting point here was 12 years and following a discount of 25% for a plea at the PTPH, arrived at 9 years for each count of death by dangerous, concurrent with each other.
H.M. Solicitor General appeared for H.M. Attorney General and by virtue of s. 36 CJA 1998 submitted that the sentence was unduly lenient. On the primary ground of appeal no criticism was made of the sentencing judge’s analysis of the case or its severity. The submission was that he instead ought to have passed consecutive sentences to reflect the loss of two lives. This in turn would have allowed a sentence in excess of the 14 years maximum. In the alternative, H.M. Solicitor General submitted that the starting point of 12 years was too low and should instead have been 14 years.
The first submission was rejected by the court but the second succeeded.
Commentary
This was plainly a tragic case in which two young children died. There is perhaps a natural reaction that where two deaths occur, it is somehow troubling to think that the defendant isn’t being punished for each individually unless consecutive sentences are passed but the court went to great lengths to explain why that course would be inappropriate.
Though the final position was just, the court examined a number of general issues in relation to this offence.
First, the sentencing guidelines deal with the position where more than one person is killed. 19. The seriousness of any offence included in these guidelines will generally be greater where more than one person is killed since it is inevitable that the degree of harm will be greater. In relation to the assessment of culpability, whilst there will be circumstances in which a driver could reasonably anticipate the possible death of more than one person (for example, the driver of a vehicle with passengers (whether that is a bus, taxi or private car) or a person driving badly in an area where there are many people), there will be many circumstances where the driver could not anticipate the number of people who would be killed 20. The greater obligation on those responsible for driving other people is not an element essential to the quality of the driving and so has not been included amongst the determinants of seriousness that affect the choice of sentencing range. In practical terms, separate charges are likely to be brought in relation to each death caused. Although concurrent sentences are likely to be imposed (in recognition of the fact that the charges relate to one episode of offending behaviour), each individual sentence is likely to be higher because the offence is aggravated by the fact that more than one death has been caused (emphasis added). 21. Where more than one person is killed, that will aggravate the seriousness of the offence because of the increase in harm. Where the number of people killed is high and that was reasonably foreseeable, the number of deaths is likely to provide sufficient justification for moving an offence into the next highest sentencing band (emphasis added).
Instead H.M. Solicitor General relied on Attorney General’s Ref (Nos 60, 62 and 63 of 2009) [2009] EWCA Crim 2693, a case better known as Appleby, as authority for the proposition that consecutive sentences may be imposed when that is necessary to allow sufficient weight to be given to the facts that the criminal conduct resulted in deaths. This, however, was a manslaughter case. The prosecution could have charged the instant case as manslaughter but did not. Though the court were clear that they were not inviting prosecutors to do so, this was an option available and in those circumstances Appleby would have been apt. The perhaps bigger issue is that Appleby and Ralphs were considered within two weeks of each other in 2009. Lord Judge CJ, presiding over the court in both cases, could hardly have intended that Appleby (which post-dated Ralphs) should be preferred in death by dangerous cases without explicitly saying so. The court described the proposition to the contrary as ‘wholly untenable’.
The tenor of the judgment on these points is wholly against H.M. Solicitor General and the points advanced. There is no ‘loss of time equivalent’ in a reference under s. 36, but if there was (and the appeal hadn’t succeeded on other grounds), it would seem that H.M. Solicitor General would have fallen foul of it. The court afforded H.M. Solicitor General a much greater degree of latitude than they have previously with appellants who advance poor points. Additionally, the reliance placed by H.M. Solicitor General on potential changes in the law to increase the maximum sentence for the offence of death by dangerous driving found no favour with the court.
It was the third and final point that ultimately led to the reference succeeding. The Judge seemingly had fallen into the trap oft seen where the maximum sentence is reserved for some act that is worse than the instant case. The Court of Appeal has long been clear that the maximum does not need to be reserved for something worse that the facts presented, the ‘notional exceptional case’. They correctly pointed out here that all of the aggravating factors were present. This in turn was the basis upon which the sentence was increased – to a starting point of the maximum of 14 years.
Two points flow from this case. There is perhaps public opinion that 14 years just isn’t sufficient as a maximum sentence. Whether this leads to more cases being charged as manslaughter (and the difficulty that brings) or the maximum sentenced altered upwards to reflect the wider social view, each will be a welcome change in how those who kill people behind the wheel of their car are properly prosecuted and sentenced.