No: 200605818 A4 
Neutral Citation Number: [2007] EWCA Crim 1003
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Thursday, 19th April 2007

B E F O R E:

LORD JUSTICE MOORE-BICK 

MR JUSTICE BURTON 
 
MR JUSTICE DAVID CLARKE 

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R E G I N A 

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MR J DAVIS (Solicitor Advocate) appeared on behalf of the APPELLANT
MISS K PRESTON appeared on behalf of the CROWN
 
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J U D G M E N T 

1.	LORD JUSTICE MOORE-BICK:  On 26th September 2006, in the Crown Court at Reading, the appellant pleaded guilty to an offence of causing death by dangerous driving, and on 10th November 2006 he was sentenced by His Honour Judge Risius to three years six months' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.  He was also disqualified from driving for five years and until he passed an extended driving test.  He now appeals against sentence by leave of the single judge.
2.	On 26th May 2006 the appellant, then aged 16, was spending time with a number of friends.  It was the prosecution's case that in the earlier part of the evening he had been seen by the police driving a Ford Escort.  They recognised the appellant, and at some stage it was said they had tried to stop the vehicle but without success.  It is right to say that the appellant did not accept at any stage that he had in fact been driving the car earlier that evening.  
3.	At all events, during the course of the evening the appellant went to a friend's house, where he drank whisky and Coca Cola and smoked cannabis.  At some point the group ran out of Coca Cola, and there is evidence that the deceased, Mr Imran Choudry, persuaded the appellant to fetch some more.  It appears that the appellant may have been reluctant to do that because he knew that he was drunk and under the influence of drugs, but he was eventually persuaded into doing so by the older man.  The deceased, who went with him, was 26, and so quite a lot older than the appellant.  
4.	At about 1.25 am police officers saw the appellant's vehicle parked on the forecourt of a petrol station.  They thought they recognised it as being the same vehicle that they had seen earlier in the evening.  They waited for it to leave and then followed it with their siren sounding and lights flashing in an attempt to make the appellant stop, but he failed to do so and drove off at speed.  The appellant drove at speeds of up to 60 miles an hour in a semi-residential area subject to a 30 mile an hour speed limit, passing through two sets of red traffic lights and at one stage crossing the main carriageway of the A4, which is a four lane highway at that point.  The driver of a car coming in the opposite direction was faced by the appellant's vehicle travelling towards him at very high speed on the wrong side of the road.  He took avoiding action but could not avoid a collision after the appellant had initially hit a parked car.  Cutting equipment had to be used to remove the appellant and the deceased from the vehicle.  The deceased, Mr Choudhury, was taken to hospital but died about a week later from his injuries.  It appears that he may not have been wearing a seat belt at the time of the accident.  The occupants of the other vehicle involved in the collision suffered only minor injuries.  The appellant himself was injured and was taken to hospital, but it appears that his injuries had no long-term consequences.  
5.	The appellant is now 17, having been 16 years of age at the time of the offence.  He has no previous convictions of any relevance.  The judge had the benefit of a pre-sentence report, a report from a social worker who had been working with the appellant during the previous six months, a report from the local authority's child mental health worker, to whom the appellant had been referred by his social worker, and also a psychiatric report.  The reports described the appellant's emotional and behavioural difficulties and the disruptive effect they had had on his education.  The author of the pre-sentence report also described his remorse at the death of his friend, Mr Choudhury, and the depression that he had suffered as a result.  There were at that stage concerns for his mental well-being and it was thought that he posed a risk of suicide.  At the time those reports were made in November 2006 the appellant was suffering from post traumatic stress disorder.
6.	When passing sentence, the judge noted that there were several aggravating features of this case: the consumption of alcohol and drugs; driving without a licence or insurance; attempting to evade the police; and a sustained course of appallingly bad driving.  He also recognised a number of mitigating factors: the appellant's age; his early plea; and genuine remorse over the death of his friend.  The judge had earlier commented on the fact that the appellant had been encouraged to drive by the older man, although he had been reluctant to do so, but that he accepted that he had to take responsibility for his actions.  The judge did not consider that the appellant posed a significant risk of serious harm to the public from further offending and was therefore able to pass a determinate sentence.  
7.	Mr Davis, who has appeared for the appellant, submitted that the sentence passed by the judge could have been shorter having regard to the appellant's age, his plea, his background, his acceptance of responsibility and his remorse for the death of his friend, which he continues to feel, and also in the light of the progress that he has made while in custody.
8.	We have had the benefit of a supplementary report from the author of the original pre-sentence report.  He says that the appellant is still suffering from post traumatic stress disorder and a degree of depression resulting from the accident, but that while he has been in custody he has taken steps to keep himself free of drugs.  He has begun to mature and become more responsible generally.  
9.	An indication, though not an exhaustive one, of the factors that aggravate an offence of causing death by dangerous driving is to be found in the well-known case of Cooksley [2004] 1 Cr App R (S) 1.  Of those features the following were present in this case: the consumption of both drugs and alcohol, to the point, it should be said, at which the appellant appreciated that he was adversely affected; greatly excessive speed; driving without a licence or insurance; and dangerous driving committed in an attempt to escape from the police.  These factors, in particular the consumption of both drink and drugs and the nature of the driving itself, placed the offence, in our view, in the high culpability range.  
10.	The guidance on levels of sentencing given in Cooksley was considered by this court in Richardson [2006] EWCA Crim 3186 following the increase in the maximum sentence for this offence from ten to fourteen years' imprisonment.  In paragraph 19 of its judgment, the court held that the starting points in Cooksley should be reassessed to some extent so that the proper starting point for high culpability offences should be four and a half to seven years' imprisonment.
11.	In the present case the judge did not state what starting point he had taken, though having regard to the extensive mitigation available to this appellant, in particular his age, his early plea, his remorse and his complete acceptance of responsibility for his conduct, we think it must have been somewhere between six and seven years' imprisonment.  In the light of the guidance given in Richardson, that cannot be said to have been manifestly excessive.  The only question which remains, therefore, is whether the judge gave proper consideration to the mitigating factors to which we have already referred.  In our view, he plainly did.
12.	Mr Davis submitted that although the sentence passed in this case might not be faulted by ordinary standards, it could be shorter having regard not only to the appellant's age, but to the progress that he has made since being in custody.  In our view, the judge gave full credit to the appellant for the mitigation available to him.  It is regrettable that he may not be able to make as good use of his time in custody as might be wished, but in our view it cannot be said that the sentence passed in this case was manifestly excessive and the appeal must therefore be dismissed.