Neutral Citation Number: [2007] EWCA Crim 2476
No: 200703015 A1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Tuesday, 9th October 2007

 
B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE DAVID STEEL 
 
HER HONOUR JUDGE GODDARD QC 
(Sitting as a judge of the Court of Appeal Criminal Division)
Between 
- - - - - - - - - - - - - - - - - - - - -
R E G I N A 

v 

PETER MURRAY
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr R H Christie appeared on behalf of the Appellant

Mr P Alcock appeared on behalf of the Crown 
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 
MR JUSTICE DAVID STEEL:  The appellant, Peter Murray, is now 61 years old.  On 21st March 2007, at the Crown Court at Maidstone before His Honour Judge Statman, the appellant pleaded guilty to four counts of causing death by dangerous driving, and on 16th May 2007, before the same court, he was sentenced to six years' imprisonment on each count to run concurrently.  He was disqualified from driving for five years and thereafter until an extended driving test was passed.  He appeals against that sentence by leave of the single judge.
The background is as follows.  On 8th August 2006, at approximately 10.30 in the morning, a Volkswagen had stopped on the hard shoulder of the M25 due to a flat tyre.  The car contained four members of the Sawir family: husband, wife and two children, aged four and two.  The appellant was driving a Foden heavy goods vehicle travelling in the same direction.  
Prior to colliding with the Sawir's vehicle, the appellant was seen by a number of witnesses to have been driving erratically, weaving between lanes into and off the hard shoulder and the middle lane.  In the process of veering and swerving, the lorry narrowly missed another car and a parked lorry.  There was evidence, but it was disputed by the appellant, to suggest that this erratic driving lasted for as much as six minutes.  
The appellant's HGV finally veered again onto the hard shoulder, where it hit the stationary Volkswagen, with all four family members inside.  The car was partially crushed and pushed across all three lanes of the motorway until it collided with the central reservation.  The car then caught fire with all four occupants trapped inside.  All four of the occupants were killed by the collision or the resulting fire.
The appellant was taken to hospital and blood tests showed that his blood alcohol level at the time of the accident had been something in the region of two and a half times the legal limit.  At the hospital the appellant expressed remorse for what had occurred.
At the time of his plea of guilty he put in a basis of plea that there was only a short period of erratic driving, rather than an extended six minute period of weaving between the lanes.  The Crown did not accept this point, but the judge indicated that he did not require a Newton hearing as it was not a factor that would make a material difference to sentence.  We confess we are not sure that that decision was right.
The appellant ‑‑ and this is of some importance ‑‑ had no previous convictions, although he volunteered the information to the probation officer in interview that he had had his driving licence endorsed on two occasions for speeding.
The pre‑sentence report that was before the judge informed the court that the appellant had been employed as a lorry driver for many years.  He accepted causing the accident but did not recall the circumstances.  He said to the probation officer that he had had a heated row about his working hours with his wife the evening before the incident.  He then admitted that he drank seven or eight cans of beer before going to bed at midnight.  He then woke again at 4 am to begin work.  
The appellant was a family man, and in the opinion of the author of the pre‑sentence report showed genuine remorse and regret for what had happened.  He himself had demonstrated a strong work ethic and a desire to provide for his family, but on this particular occasion had overruled his consideration for other road users.  He has two sons himself and three grandchildren.  By virtue of his age, he is unlikely to ever work again.  The author considered the appellant was not generally a risk taker, nor a drinker.  He has not drunk since this accident.  The likelihood of re‑offending was assessed as low.  Indeed, it was very unlikely that he would drive.
A psychiatric report was also before the judge, which recorded that from as long ago as 1969 the appellant had suffered from a depressive episode caused by separation from his wife.  He was diagnosed as having a dependent personality which dealt badly with separation.  However, there have been no further psychological or psychiatric disorders prior to the accident.  The author of the psychiatric report confirmed that there was no evidence of alcohol misuse.  
Since the accident the appellant has suffered from poor concentration, symptoms of agoraphobia and depression.  He was diagnosed as suffering from post‑traumatic stress disorder.  This was predicted to worsen following a custodial sentence.  
It is important to look at the judge's sentencing remarks with some care.  He referred to the fact that the appellant was of positive good character with a background of hard work up to the age of 61 years and whose life had been changed forever as a result of this accident.  He then referred to the fact that he had been given the opportunity to review the guidance given in the case of Richardson [2006] EWCA Crim 3186.  This decision of this court was in the aftermath of the increase in the maximum penalty for an offence of death by dangerous driving from ten years to 14 years, and as a consequence the court gave guidance as to the increase in the starting points for sentences in respect of various classifications of case where death by dangerous driving had been occasioned.  
In Cooksley the court had spelt out in terms the aggravating features which the court would have particular regard to when considering a sentence of this kind.  In particular, included in what was described in Cooksley as examples of "highly culpable standard of driving at the time of the offence" were three potentially important factors for the purposes of this case: first, the consumption of alcohol, which might range from a couple of drinks to a motorised public crawl; secondly, a prolonged, persistent and deliberate case of very bad driving; and, thirdly, the fact that more than one person was killed as a result of the offence.  
Having in his sentencing remarks referred to the case of Richardson, the learned judge went on as follows:

"It is right to observe, in this case, that there are two features which, in my judgment, pursuant to the guidance in R v Richardson make this a high culpability case.  The first is the fact that this defendant had consumed alcohol.  It is right to note that, on the most favourable reading to this defendant, he was almost two and a half times over the legal limit.  Consumption of alcohol, in this case, whatever the preceding circumstances was deliberate.  It undermines the ability of any driver to apply his full concentration to the road.  The more drink that is taken, the more disastrous the consequences can be."

Then he went on:

"The next matter that I must deal with is the issue and nature of the driving.  It is clear in the way that the Crown has opened this case to me that there was undoubted lane weaving.  But I must be careful not to double count.  At its root, it seems to me in causing that to have occurred would have been the amount of alcohol consumed by this defendant.  But weave he did; that was seen by a number of witnesses, and it seems to me, looking at it most favourably to the defendant, the period which I am dealing with here, albeit that it was not continuous, was that this course would have occurred through that which the witnesses observed over a period of some 6 minutes, if one looks at their global recollection in their witness statements.  

But the most serious high culpability factor in this case must be that multiple deaths have occurred."

Mr Christie, in presenting the appeal on behalf of the appellant, reminds the court that part of his original grounds of appeal were directed at the fact that the learned judge appeared to have sentenced the appellant on perhaps a basis that was less favourable than the basis of plea that had been tendered and in respect of which no Newton hearing had been held.  The single judge, in responding to that suggested ground of appeal, commenting as follows:

"[It] is not arguable.  The degree of weaving was less important than its cause, viz the amount of blood alcohol."

In short, the single judge took the same stance as the sentencing judge, that the lane weaving was something that was in effect caused by and subsumed into the amount of alcohol that had been consumed.
We are bound to say that, for our part, it is perhaps a pity that a Newton hearing was not held to determine the scale of the erratic driving that was perceived by various witnesses, some of whom described it as taking place over a prolonged period.  If that course had been followed, and if the outcome had been that the court had been satisfied beyond reasonable doubt that this erratic driving had taken place over a substantial period of time, we cannot help feeling that that might have had, or at least should have had, a material impact on the sentence.
The primary ground of appeal, and indeed the ground upon which leave was given, is that the sentence that has been imposed of six years, in the context of a situation in which a full third discount was appropriate, leads to the conclusion that the judge must have started with a sentence in the region of nine years in the event that a trial had taken place, and Mr Christie submits that is inconsistent with the direct observation in the sentencing remarks which we have already quoted, but we quote again:

"It is right to observe, in this case, that there are two features which, in my judgment, pursuant to the guidance in R v Richardson make this a high culpability case."

That, it seems to us, is a term of art.  The decision in Cooksley, which was later reviewed in Richardson, which identifies the various aggravating and mitigating factors that may arise in cases of this kind, went on to set out what were described as four starting points for a sentencing judge: first, no aggravating circumstances at all, 12 to 18 months; intermediate culpability, two to three years; higher culpability years, four or five years; and most serious culpability, six years or over.  
Of course, as this court was at pains to point out in both Cooksley and Richardson, these are merely starting points, where a sentencing judge should start when seeking to determine what should be the appropriate sentence.  But this particular warning was given by this court in the decision in Richardson, which is a repeat of what had been observed in Cooksley: 

"There is, however, a danger in relation to the higher starting points of the sentencer, if he is not careful, double accounting.  The sentencer must be careful not to use the same aggravating factors to place the sentence in a higher category and then add to it because of the very same aggravating features."

These cases are always very difficult for a trial judge, and we are bound to say that perhaps the appellant was fortunate in not having to face up to a Newton hearing, but we must approach this case as the judge has found it, and he has found in terms that there were two aggravating features, consumption of alcohol and the fact of multiple death, which in his opinion put this case within the third of the four categories to which we have referred; a category which puts the starting point, following the adjustment in Richardson at four and a half to seven years.  
Again, this is but a starting point, and indeed the aggravating factors which are referred to in the judgment are not a code against which an assessment of the circumstances is to be tested.  Each case must be viewed on its own facts and the starting point may in the event lead to a very different finishing point.  
Nonetheless, we do think that the learned judge ought to have started from four and a half to seven years following a trial.  He might have been justified in going above that starting point to reflect, in particular, the extent to which this driver was over the legal limit.  This was not a casual drink or two; indeed it was not, we suspect, the mere disposal of half a dozen cans of beer 12 hours earlier.  There is really no explanation that was furnished to the judge as to how this man was two and a half times over the limit at 10.30 in the morning.  
Further it was also right that some account should be taken of the lead‑up to this accident in which the lorry was seen to drive erratically, and the outcome of course has been the death not of one person, but of four persons, two parents and two very young children.  
We have to say that we do not have a great deal of sympathy with the appellant in the predicament that he faces, but we feel compelled by the approach of the learned trial judge, in indicating, having only just read Richardson, that he placed this case in the high culpability bracket.  In consequence we feel that it would not in that context be possible to support a sentence after a trial of something in the region of nine years.  
In our judgment, the judge could certainly go beyond the starting bracket, but allowing for the guilty plea and indeed the personal mitigating circumstances of this particular appellant, in our judgment this sentence of six years was excessive and we reduce it to four and a half years.  To that extent, this appeal is allowed.

MR ALCOCK:  Could I raise please one matter that was referred to in the sentencing remarks.  This court, in reflecting the view taken by the judge, placed the case in the higher sentencing bracket, so category 3, stating that the period of custody as a result of that bracket is four to five years.  In Richardson that bracket was changed at paragraph 19 from four and a half to seven years, and I refer to that now because that was part and parcel of the remarks which your Lordship made. 
MR JUSTICE DAVID STEEL:  Yes, we will adjust the transcript to reflect that. 
LADY JUSTICE HALLETT:  Thank you, Mr Alcock.  
Mr Christie, I would, if I may, put a shot across your bows, as the bows of everybody else in court.  Counsel were asked, as I understand it, to confirm a time estimate.  I appreciate you did not know how long we would take to  consider this difficult case, but it was always going to be a difficult case.  30 minutes was the time estimate, including judgment, and it is one of my pet grievances that people do not remember it is to include judgment.
MR CHRISTIE:  My Lady, noted.  
May I delay matters very briefly further just in relation to the order that has been granted in relation to legal aid in this case.  Your Ladyship will have seen the basis upon which it has been granted, namely for junior alone rather than for leader.  I was instructed in this case by an insurance company operating in the free marketplace and took the view that leading counsel should be instructed for it.  The learned single judge may not have known I was not instructed without any junior, I know not, but he says, Mr Christie may attend if he wishes, but otherwise it can be returned to other junior counsel.  The position obviously, in my respectful submission, is that it would be unthinkable for me not to do the case in all the circumstances, and of course this is a matter that has, as you have recognised, some considerable sensitivity given the facts of it.  Also, if I had returned it to somebody else I anticipate that they would, with all the papers, have taken rather a longer time to deal with it, so I wonder whether the court would review that and allow for leading counsel to attend today.
LADY JUSTICE HALLETT:  Mr Christie, my Lord was showing his Commercial Court background by asking what are the terms of the policy that allow the insurers not to pay for an appeal, but I assume you have satisfied yourselves ‑‑
MR CHRISTIE:  We investigated that matter very thoroughly, but they are adamant and obdurate.
LADY JUSTICE HALLETT:  Mr Christie, if the insurance policy does not cover your services, we have no doubt that Mr Murray was entitled to the services of counsel he had if you were available, which you were, and therefore the representation order will cover your representation of him.
MR CHRISTIE:  I am very much obliged.