No: 200705414/A7 
Neutral Citation Number: [2008] EWCA Crim 753
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 14th March 2008
 
B e f o r e:

LADY JUSTICE HALLETT DBE

MR JUSTICE PENRY‑DAVEY 
 
HIS HONOUR JUDGE RADFORD 
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

LZ
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Miss E Edhem appeared on behalf of the Applicant
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Judgment

1.1.	MRS JUSTICE HALLETT:  LZ is only 15 years of age; he stands convicted of causing the death of a young child, BD.  He could easily have caused the death of BD's baby brother, Luke, his older brother, Lewis, and his mother, SW simply because the appellant was bored and decided to show off to his friends by taking someone else's vehicle.  
1.2.	He took a jeep and drove it round the AS residential estate at just after 1 o'clock on the afternoon of 20th October 2006 when there were adults and children passing by.  Mrs W and her 13‑year‑old son, Lewis, were walking along the road.  She was pushing a baby buggy.  Inside the buggy was her 19‑month‑old son, Billy, and 10 week, Luke.  The appellant was with his co‑accused (of similar age) and showing off to him, albeit he had no proper driving experience to speak of.  He drove erratically; he swerved and accelerated harshly and he drove too fast for the conditions.  A witness heard the Jeep making screeching noises and the engine rev at about the time as the appellant was trying to turn a corner.  He lost control of the Jeep as he accelerated.  As a result the Jeep rounded the corner on two wheels and mounted the pavement.  It hit a tree, knocking the tree over.  The tree snapped and hit the buggy carrying the two babies.  Billy was hit to the back of his head and the blow knocked him out of the buggy and into a wall.  He died of multiple injuries.  Despite the fact that the Jeep also pinned the buggy to the wall, miraculously Luke, his mother and Lewis were all uninjured.
1.3.	The appellant and the co‑accused cowardly fled the scene, leaving others to pick up the pieces.  However, they were recognised and eventually traced.  When first interviewed, despite the evidence against him, the appellant denied being involved in the collision.  His co‑accused admitted what had happened.  However, the appellant later decided to tell a security officer responsible for his care that he did intend to plead guilty, albeit he did not consider the Crown had much of a case against him.  Despite those remarks, when interviewed again, he answered "no comment" to the questions put to him.  He was remanded initially to foster parents but it seems, having nothing to do other than think about the accident, he absconded.  He was then remanded in custody for about 5 or 6 months before he appeared in the Crown Court on 20th July 2007.  On that date he changed his plea to guilty to causing death by dangerous driving and guilty to an offence of aggravated vehicle taking.
1.4.	On 31st August 2007 His Honour Judge Burns sentenced him to 42 months' detention on the death by dangerous driving count and 18 months' detention concurrent on the aggravated vehicle taking count.  This made a total of 3 years and 6 months' detention, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.  He was also disqualified from driving for 10 years.
1.5.	His co‑accused also changed his plea belatedly to guilty to aggravated vehicle taking.  He was sentenced to 12 months' detention and training order.  The appellant has leave to appeal the sentence.
1.6.	He has had a troubled background, although by the time of this offence he had acquired just one conviction, dating back to December 2006, for common assault.  His mother had informed the authorities that she found it difficult to cope with him.  He declined to accept any boundaries that were set for him.  As a result social services became involved.
1.7.	The appellant was remanded for the offence of common assault to a Referral Unit and he absconded from the unit.  His behaviour was sufficiently bad to lead to his exclusion from school on several occasions.  Social services had a high level of concern about his inappropriate sexualised and aggressive behaviour.  The appellant admitted that he smoked cannabis on a daily basis; it was said in the belief that the drug calmed him down.
1.8.	He told the author of the pre‑sentence report, who appears to have been sympathetic towards him, that when he ran from the scene of the accident, he was not aware he had hit the buggy and therefore killed a child.  This was despite the fact that his co‑accused, who left the car by the passenger door, was aware that the Jeep had hit a child.  The appellant nevertheless claimed that when he discovered he had killed a baby he went into a state of shock.
1.9.	According to the author of the pre‑sentence report he was described as not liking to show his emotions and trying to block out the accident.  It was said he was still coming to terms with what he had done.  His lack of maturity and lack of insight were acknowledged. As a result he failed to comprehend the risks he was taking on that fateful day when he foolishly attempted to impress his peers.  He was assessed as posing a high risk of harm to others, but the author of the pre‑sentence report appeared to place some reliance on the fact that on remand the appellant had responded well.  He had made real efforts to address his offending behaviour.  The author suggested that it was not necessary, therefore, to impose a significant and lengthy custodial sentence.  It was said it might have a detrimental effect, given his immaturity and willingness to attempt to impress older and more criminally minded young men.
1.10.	Miss Edhem criticises the trial judge for, she suggested placing too great an emphasis on the loss to the W/D family.  She claimed that the judge failed to give sufficient weight to the counterbalancing mitigating factors.  It was said he erred in taking into consideration the fact that the appellant had stolen the vehicle as an aggravating feature of the offence of death by dangerous driving because, at the same time, he sentenced the appellant to 18 months for the aggravated vehicle taking.  Pausing there, we confess we found that argument somewhat difficult to follow given the fact that the 18 months' sentence was ordered to run concurrently with the offence of death by dangerous driving.  We might have followed the argument had the sentence been ordered to run consecutively.  Third, Miss Edhem argued that the judge applied inordinate emphasis on the appellant's running from the scene.  He ran in a state of panic and it should not be forgotten he was only 14 years of age at the time.  She submitted many adults might have run away from a crash of this kind.  Further she argued the judge erred in placing the appellant’s lack of experience within the category of aggravating features. This should have been considered a mitigating feature.  She also submitted the judge placed too great an emphasis on the offence having being planned and premeditated.  Finally, as we have indicated, she placed considerable reliance on the contents of the pre‑sentence report.  The same did not apply to the a report from a psychiatrist, described by Miss Edhem as “bland”.
1.11.	As far as the appellant's response to custody is concerned, sadly his initial progress does not seem to have continued.  His initial progress included a willingness to respond to attempts to educate him. A number of  certificates were available for Miss Edhem to put before the court.  However, once this young man, who purports to be utterly remorseful, learnt that he was going to spend rather longer in custody than he wished, he seems to have stopped trying so hard.  He has caused a number of problems. On our reading of the reports upon him, he can, on occasions, respond very well to being controlled, supervised and helped but only if it suits him.  
1.12.	Miss Edhem argues that for a 14 year old (now 15‑year‑old boy) any substantial sentence is likely to have a crushing effect upon them and it is, therefore, not surprising that he has gone backwards since sentence. She argues that the judge should have followed the recommendation of the author of the pre‑sentence report, because of the appellant's very vulnerable age and the fact that in custody he will associate with others of a criminal bent.  With respect, that is a view we have seen and heard often expressed but, in our experience, it is not always borne out by events.  Sometimes, a significant period in a custodial environment, where there are experts prepared to support and guide, may make all the difference to the life of a young offender, provided of course the young offender is receptive and willing to learn.  
1.13.	This appellant must learn that if he continues to put his own interests first and ignore the interests of others, as he did on that dreadful day in October 2007, he is going to face a very difficult life indeed.  If he does not bring his life under control and if he does not exploit the talents which he seems to have, he faces a life marked by appearances in court and subsequent periods of detention.  That would be in no one's interest, least of all his.
1.14.	As the judge observed in granting leave, this was a very difficult sentencing exercise.  We would add that we accept that it is not an easy task for someone in Miss Edhem's position to represent a young man who has behaved as this young man has.  No doubt many people would struggle to understand the notion that the court is under a duty to consider not only the impact of his offending behaviour on the victims of the offence but also the interests of the young person in the dock.  However, we have no doubt that this very experienced criminal judge needed no persuading of his duty to balance the interests of all concerned.  He was plainly acutely conscious of the age of the offender.  That is clear from his sentencing remarks.  He was also rightly conscious of the devastating effects of the appellant's behaviour on the W family.  Three members of the family can never forget the circumstances of the accident because they were there.  The whole family will never forget the consequences of that day.  It will haunt them for the rest of their lives.  It is clear from the victim impact statement that the family, not surprisingly, has suffered appallingly. Some have experienced panic attacks, most have had difficulty sleeping, and others have required counselling. The family has had to move and the children have had their lives disrupted because their parents could not face living in the area where they had lost their child.  
1.15.	As has probably become apparent from this judgment so far, in our view, the sooner this appellant learns that if he continues to behave in this way he will face increasingly severe consequences.  This appellant knew full well, albeit he was only 14, that he had no business behind the wheel of a car:  he was underage; he had no licence; he had no relevant experience; he had no insurance.  He drove in a residential area, where it must have been obvious, even to a 14 year old, that people might get hurt.  He drove dangerously.  He mounted the pavement where people were walking.  He must have known when he fled the scene that there had been people in the vicinity of the crash and he must have known, as he tried to make good his escape, that he had probably hurt someone, even if he did not know the extent of what he had done.  Yet still he ran away and made no attempt to help those he had injured.   
1.16.	The appellant declares that he is truly remorseful for what he has done.  We hope so.  We hope that the deterioration in his progress whilst in custody is shortlived.  We hope that he takes full advantage of the opportunities available to him.  If he can turn his life around, then possibly something positive can emerge from this awful tragedy.  However, that is for the future. Our present task is to determine calmly and dispassionately whether this sentence is manifestly excessive, given the appellant's age at the time the offence was committed.  
1.17.	We have come to the clear conclusion that the sentence was thoroughly deserved and in no way excessive.  The judge considered all the relevant factors and he did his best within the constraints imposed upon him. To our mind, a sentence which involves this young man remaining in detention until at least May or June of 2009 (the exact date remains unclear) cannot be described as excessive in all the circumstances we have outlined.  Accordingly this appeal must be dismissed.