No: 200904892 A1 
Neutral Citation Number: [2010] EWCA Crim 46
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 13 January 2010

B e f o r e:

LORD JUSTICE MAURICE KAY 

MR JUSTICE DAVID CLARKE 
 
MRS JUSTICE SHARP DBE 
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R E G I N A 

v 

EDWARD ARTHUR SHEPHERD 
 
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Mr JP Leaning (Solicitor Advocate) appeared on behalf of the Applicant

Miss J Martin appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE MAURICE KAY:  David Clarke J will give our judgment. 
2.	MR JUSTICE DAVID CLARKE:  On 24 July 2009 in the Crown Court at Truro, the appellant, who is now 19 years of age, pleaded guilty to an offence of causing death by driving without due care and attention.  On 28 August before HHJ Cottle, he was sentenced to four years' detention in a Young Offender Institution, disqualified from driving for five years and directed to take thereafter an extended retest.  He appeals against that sentence by leave of the Single Judge.
3.	The fatal accident giving rise to this prosecution occurred at about 10.25 in the evening, on 22 September 2008, on the A3074 road between Carbis Bay and Lelant, near Hayle in Cornwall.  This was, as we see from photographs, a rural stretch of road, but close to a residential area.  The speed limit was 40 miles per hour.  
4.	What happened was that a young lady, Unity Perkins, was driving her car with a friend.  They had been shopping to buy things for the new flat which they had just moved into as flatmates.  Miss Perkins was driving her car at about 40 miles an hour.  The appellant was driving in the opposite direction, clearly at an excessive speed.  He was being followed by four friends in another car, to whom we will refer in a moment.  
5.	His car had a faulty anti‑skid braking system, as was indicated by a warning light on the dashboard.  He drove around a right‑hand bend and evidently braked hard at or near the bend, at which the back wheels of his car locked, the car lurched to the side, the back‑end swung around and the nearside collided head on with the on‑coming car.  His car and Miss Perkins' car came to rest.  His friends behind stopped, as did the car following Miss Perkins.  She and her passenger were trapped in the car.  The emergency services had to help her friend out, but she tragically was found to be dead at the scene.
6.	The evidence about the appellant's speed comes from two sources.  He had stopped a short time earlier to speak to four friends who were in another car.  He showed them his car, which had a number of special features, including a so‑called trumpet exhaust, and there was some conversation between the young men about the car and its engine.  He then got in the car and drove off.  The other four set off following in the other car.  
7.	They have given descriptions of the way the appellant then drove.  He reached a high speed.  Some of them estimated it at twice the speed limit, which would be 80 miles per hour, though counsel opening the case to the judge suggested that this should be treated with some caution because of the difficulty of estimating speed in that way.  At all events those witnesses spoke of the car being driven off very fast, which counsel understandably described to the judge as "showing off".  One of the men in the other car referred to the defendant as "flooring it".  From a distance they saw him approach the right‑hand bend where the accident occurred and one of them said he saw the appellant braking hard.  
8.	The other evidence as to speed came from a police vehicle examiner who concluded from the damage and other findings that the speed at impact was no less than 46 miles an hour and up to 65 miles an hour.  He added that the car was undoubtedly going faster than this before the braking started.  It was a bend which could be safely negotiated at 40 miles an hour, or even a little faster, but, as the witness remarked, an inexperienced driver often reacts too harshly with steering and braking actions so as to give rise to a loss of control.  In that situation the faulty anti‑braking system, which would not have caused any problem going round the bend in normal circumstances, might well come into play.
9.	The appellant was interviewed in due course.  He expressed shock at what had occurred.  He disputed that he had been driving to excessive speed, but he undoubtedly had lost control with these disastrous consequences.  It is clear to us that he had no possible alternative to pleading guilty to the offence charged against him, something he did at the first opportunity.
10.	There was, however, important other evidence which caused the judge to treat this case as very much more serious than a more normal example of causing death by driving without due care and attention.  It clearly troubled the judge that the Crown had decided not to prosecute the appellant for causing death by dangerous driving.  
11.	These circumstances arose in this way: the appellant, who had bought this car some weeks earlier, had passed his driving test on 16 September, six days before the fatal accident.  On 19 September he was spoken to by a police officer who had seen him speeding in a residential area and he was given informal advice about the nature of his driving, as well as the state of his tyres.  
12.	During the following weekend, in the car park of a leisure centre where the appellant was working part‑time as a life guard, he was seen by another police officer doing manoeuvres, such as wheel spins, in a place where members of the public were likely to be present.  The officer's evidence was that he noted the car number and planned to have a word with the local beat officer the following week, but events took place before that could occur.
13.	At about 7.30pm on 22 September, some three hours before the fatal accident, on a narrow road in a residential area, a motorist, Mr Saunders, was confronted by the appellant driving his oncoming car at what he considered a grossly excessive speed, so that he had to take evasive action.  He said that he was shocked to see the appellant laughing as he drove past.  
14.	Mr Saunders turned his car to follow, but when the appellant stopped and got out of his car he decided not to confront him after all.  It appears that that decision was made because of the level of anger he was then feeling, rather than because of any particular aggressive demeanour on the appellant's part.  Be that as it may, this incident gave the judge grave cause for concern.  
15.	There was also evidence that subsequent to the accident, some weeks later, another member of the public complained to the police about the fast and dangerous way in which she had seen the appellant drive past her shop on a number of occasions in his new car, which was a similarly modified model.  It was said that this complaint was made to the police without knowledge that he had been involved in the fatal road accident.  
16.	We treat that evidence with a degree of caution, having seen what the appellant said to the author of the pre‑sentence report about this evidence.  We have no doubt that in any event feelings were running high in the locality following the occurrence of the fatal accident.
17.	On the other side of the coin, the appellant was only 18 at the time.  He had no previous convictions of any sort.  There were powerful testimonials before the court from a number of people who were supportive of him as a determined but kind and reliable young man, who had done much to support his mother and other family members following her recent separation from her husband.  The pre‑sentence report provided a good deal of background, including reference to the separation of his parents.  The appellant was expressing remorse.  He claimed to have no intention of driving again, though the author of the report felt that that is unlikely to last.  The appellant has said that when the inevitable custodial sentence is over he will move to another part of the country and get away from past associations.
18.	The learned judge took a very serious view of the case.  It is appropriate to cite his sentencing remarks.  He, having referred to the maximum for the offence, said this:  
"It is also clear from what I have said during the course of this hearing that I consider you to be extremely fortunate not to be facing a more serious charge of causing death by dangerous driving.  Apart from expressing my surprise, there is nothing further that I have power to do.  I make it clear that I consider that the manner of your driving and culpability on the 22nd of September is at the very top end of the range of careless driving.  Furthermore, credit for your plea of guilty which should in the circumstances of this case be balanced by the fact that you had no conceivable alternative other than to plead guilty." 
19.	The learned judge then went on to refer to some of the history, which we have related.  He remarked that the appellant had very little driving experience.  He went on:  
"And more importantly, no respect whatsoever for the fact that a motor vehicle is, when in the wrong hands, a potentially lethal weapon; you regarded this vehicle as a toy to play with and to show off to your friends.  In the days before this tragedy you ignored advice that you were given about the way in which you were driving the vehicle.  At the time of the tragedy the breaking system was faulty, there were two defective tyres, it is true that neither of those facts caused or contributed to the accident, but they demonstrate still further your attitude.  Everything about this case points to the inevitability of a tragedy occurring at anytime whilst you were behind the wheel of that car.  From everything that I have heard and read, this was an accident waiting to happen.   
The evidence of the manner of your driving very shortly before the fatal accident demonstrates quite plainly that you were showing off. A car followed you down the road towards this right‑hand bend, it was driven by people who knew you and who have described the manner of the driving that they witnessed.  You accelerated away at considerable speed, you were, in the words of one of the witnesses, flooring it.  And you entered a bend at a speed probably in the region of 65 miles an hour, probably more.  And you had no prospect whatsoever of negotiating that bend successfully and the inevitable accident duly occurred with catastrophic consequences."  
He then referred to the post‑accident incident, which we have mentioned.  He referred to the appellant's recognition of the effect of this tragedy, saying that: 
"No sentence will satisfy those who continue to grieve for the loss of their child, their sibling, their friend." 
The learned judge went then to the sentencing guidelines.  He said: 
"... it goes without saying that this case belongs at the very top end of the range.  However, they are only sentencing guidelines. Additional aggravating features are listed in those guidelines, none of the aggravating features that are present in this case among those listed.  And I have come to the conclusion that this case quite clearly falls outside those guidelines, useful though they may be in certain cases.  
I have taken into account the mitigation that has been advanced on your behalf; had you been convicted after a trial I would have passed the maximum sentence of five years custody upon you.  You have plead guilty, I repeat that you are entitled to credit for a plea of guilty, however, I make it clear to those who might hereafter be invited to reconsider my sentence, that you had no conceivable alternative and therefore credit for plea is significantly offset by that fact.  You will be disqualified for a period of five years, I order that you take an extended driving test and I sentence you to four years custody."
20.	We interpose to say that we have read the very moving victim personal statement setting out the thoughts of the parents, twin brother and younger brother of Miss Perkins.  The judge's words about those family members were sensitive and entirely appropriate.  We are sure that they understand that the length of the sentence imposed should never be measured against the value of the life lost, which was priceless.  
21.	The appeal is based essentially on two arguments:  firstly, that the judge was not justified in going above the upper end of the upper bracket for this offence, namely three years, in the definitive guideline, to which the judge referred.  Secondly, that he did not allow the appropriate credit for the early plea of guilty.  He in fact made no more than a 20 per cent deduction from the notional maximum sentence.  
22.	We therefore turn to consider the definitive guideline, particular the factors and ranges set out on page 15.  It demonstrates, of course, that although in these cases the result of the driving: the death of another person, is uniformly devastating and of maximum severity, the range of culpability of the driving is very large.  Sentencing at the lower end of the spectrum is particularly difficult, as is shown by the recent judgment of Cranston J in R v Campbell [2009] EWCA Crim 2459.  This case is at the other end of the spectrum.  It undoubtedly fell within the top bracket described as "careless or inconsiderate driving, falling not far short of dangerous driving".  
23.	Furthermore, although the sentence range is placed by the Guidelines Council at 36 weeks to three years custody, there must be, and Mr Leaning acknowledges this, cases which justify a sentence up to the statutory maximum of five years after a contested trial.  It should be remembered that this particular offence does not encompass those cases in which, for example, the driver is impaired by drugs or alcohol, because there is a separate offence in the legislation for that.  That carries a longer maximum sentence even where the standard of driving is no more than at the lower grade of a momentary inattention case, so the absence of those factors cannot be prayed in aid here.  
24.	The guideline also enjoins judges, by part of the introduction on page 2, in every case to evaluate the quality of the driving involved and the degree of danger that it foreseeably created.  That is what the judge has clearly done in looking at the driving in this case as a whole.
25.	The approach which the court should adopt is set out in section C on page 8.  The sentencing range is the bracket into which the provisional sentence will normally fall, but particular circumstances may take it outside that bracket.  It is our judgment that the judge in this case, and for the reasons he gave, was fully entitled, and indeed right, to go outside the sentencing range and to go above it, bearing in mind that the range stops short of the statutory maximum.  Whether he was right to go as far as five years, as the sentence he would have imposed after trial, is a point to which we will return.  
26.	As to the second ground of appeal, the withholding of the full one‑third discount, in our judgment the judge was fully entitled to do that in this particular case.  It is not necessary to read into this judgment paragraphs 5.3 and 5.4 of the definitive guideline on discount for pleas of guilty, but he had regard to it.  Mr Leaning has submitted that this was not permissible because this offence covers such a wide range of gravity, and carelessness or lack of due care or attention is easily proved.  He points out that the plea of guilty saved the family the ordeal of the trial.  
27.	We do not accept this argument.  Avoiding a trial is an important part of the reasoning behind giving a discount, but it does not govern or have relevance to the assessment of how much the discount should be.  The fact that carelessness covers so wide a range, in our judgment, makes it all the more inevitable that there was no realistic alternative to the plea of guilty.  The case on the charge which the Crown chose to bring was overwhelming.  
28.	We have had cited to us  the decision of this court in R v Lord [2009] 1 Criminal Appeal Reports (S) 44 at page 243 where it was said, in a case of causing death by driving when unfit due to drugs: 
"A plea of guilty at the earliest moment was entered here.  There is no reason for countenancing anything other than a full one‑third reduction for it." 
In that case, unlike the present one, there was an additional element of the charge on which the case may well not have been overwhelming, namely whether the defendant was unfit through drugs; which is a matter of subjective judgment.  We do not find that that case undermines the approach of the learned judge in the present case.
29.	We have considered this difficult and tragic case with anxious care.  We are left with the uneasy feeling that the judge was unduly influenced by his view that the appellant should have been prosecuted for causing death by dangerous driving, a view which we can fully understand.  A sentencing judge must take great care to be totally faithful not only to the facts of the case, but also to the offence with which he is dealing.  By placing this case at the statutory maximum, but for the plea, he left no room for the sort of case which might contain other aggravating features, or relevant previous convictions.  It can be said on the other side of the coin that he cannot have given any weight to the appellant's young age and previous good character.  
30.	In the light of all these matters we conclude that the proper sentence after a trial would have been four rather than five years.  Considering the matter of discount for plea of guilty and taking it into account, we shall reduce the sentence of four years' detention in a Young Offender Institution to one of three years.
31.	We are urged to reduce also the length of the driving disqualification.  Under the definitive guideline at paragraph 31 the court, it is suggested, should start with the length of the determinate sentence.  Had we upheld four years we would have held that five years was within the proper discretion of the judge.  In the light of our judgment on the length of the custodial term, we propose to reduce the driving disqualification to four years.  The order for the taking of the extended retest will stand.  The appeal is allowed accordingly.
32.	LORD JUSTICE MAURICE KAY:  We understand that no member of the deceased family is present in court today.   
33.	MISS DUNKLEY:  My Lord, that is right. 
34.	LORD JUSTICE MAURICE KAY:  We also understand that they were anxious to know the outcome of the case and may simply be told that if they wish a transcript of the judgment one will be made available to them on request at public expense.  It is important that they understand the reasoning behind the decision.  
35.	MISS DUNKLEY:  My Lord, I am grateful for the comments.  I will make sure they are passed on. 
36.	LORD JUSTICE MAURICE KAY:  Thank you both very much.