No. 2017/01500/A3

Neutral Citation Number: [2017] EWCA Crim 775
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  24th  May  2017

B e f o r e:

LORD  JUSTICE  DAVIS

MR  JUSTICE  KING

and

MRS  JUSTICE  ANDREWS  DBE

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ATTORNEY  GENERAL'S  REFERENCE

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A
 
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JOSHUA  MARK  DOBBY

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Computer Aided Transcription by
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Mr M Heywood QC appeared on behalf of the Attorney General

Mr T Smith QC and Mr M Stevens appeared on behalf of the Offender

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J U D G M E N T
Wednesday  24th  May  2017 

LORD  JUSTICE  DAVIS:
1.   This is an application on behalf of Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 seeking leave to refer to this court a sentence on the ground that it is unduly lenient.

2.  The offender is Joshua Mark Dobby.  He was born on 5th June 1993.  He pleaded guilty at various stages to various counts on an indictment which he faced at the Central Criminal Court: two counts of manslaughter (counts 1 and 2), a count of causing serious injury by dangerous driving (count 3), and a count of dangerous driving (count 4).  So far as the manslaughter counts were concerned, he had previously offered a plea of guilty on alternative counts of causing death by dangerous driving.

3.  The conduct of the offender caused the death of two entirely innocent people, a mother and a young boy.  In addition, another young child was seriously injured and another child also suffered unpleasant injuries.  The case is in many ways shocking as to its facts and has certainly been tragic as to its consequences.

4.  At the outset of this sentencing remarks delivered on 10th March 2017, the Recorder of London, Judge Hilliard QC, said this:

"Let me make clear straightaway that the sentence I am going to pass is not intended to equate to the value of the precious lives that were taken that day.  No sentence could ever do that.  Nor can any sentence I pass put right the dreadful consequences of your actions on 31st August of last year.  … that is not possible."

Those remarks can only be repeated in this court.

5.  When he came to pass sentence, the judge imposed an extended sentence of fifteen years on each of the two counts of manslaughter; a concurrent sentence of three years and four months' imprisonment on the count of causing serious injury by dangerous driving; and a further concurrent term of one year and four months' imprisonment on the count of dangerous driving.  The total sentence, therefore, overall was an extended sentence of fifteen years, which comprised a total custodial term of twelve years' imprisonment and an extension period of three years.  It is that sentence which the Attorney General seeks to challenge before this court.

6.  The background facts are these.  On 4th June 2016, the offender had been sentenced to a term of 18 weeks' imprisonment for various offences of dishonesty.  He was released on licence on 5th August 2016.  

7.  On Sunday 26th August 2016, whilst subject to licence conditions, he stole a Ford Focus car parked at an address in Orpington.  Later that day, he filled the car up with petrol at a service station near Tonbridge and drove off without paying.  The police were informed.  Shortly thereafter, specialist traffic officers were deployed to intercept him.  However, the offender failed to stop when required to do so by lights and sirens.  What followed was, in effect, a high speed chase which was captured by a camera mounted in the police car.  It appeared from that that there was a passenger in the car who seems to have been the offender's girlfriend.

8.  Amongst other things, the driving of the offender involved travelling at around 80mph on a 40mph dual carriageway; crossing at high speed a pedestrian crossing on the wrong side of the road; driving at very high speed in a 30mph speed limit; driving on the wrong side of a dual carriageway, having entered by an exit slip road; driving along the wrong side of a dual carriageway at high speed, forcing oncoming traffic to scatter; overtaking at high speed in a 30mph speed limit, forcing oncoming vehicles to swerve to avoid a collision; and crossing a junction whilst on the wrong side of the carriageway.  This went on for 4 minutes and 40 seconds.  In the result, the pursuing police officers were directed by their control room to discontinue the pursuit due to the very high level of risk created by the offender's driving.  The driving was such that, as the sentencing judge said: "It was a mercy the offender did not kill or seriously injury someone on that day by driving in the way he did".

9.  A few days later, on Wednesday 31st August 2016, and when the offender was still on licence, the Ford Focus car triggered a camera in Penge High Street.  Officers located the car, which was being driven by the offender, shortly before 2pm.  Again, the police required the offender to stop by using their flashing lights and sirens; but he ignored them.  

10.  In the subsequent six minute period of his driving, which was captured by a camera mounted in a police car, the following was demonstrated: he travelled at speeds of up to 60mph in a residential area where the speed limit was 20mph, and again on a high street where the speed limit was 30mph; he travelled on the wrong side of "Keep Left" bollards; he travelled at excess speeds on unmade residential roads; he travelled on the wrong side of the road through a red traffic light at a busy crossroad, narrowly missing a pedestrian; he swerved into oncoming traffic; he drove at speed over mini roundabouts; he overtook a bus on the wrong side of the road; he defied "No Entry" signs on four occasions; on one occasion, he drove the wrong way down a one-way street at up to 50mph; and he clipped a parked vehicle.

11.  Following the evidence given at the sentencing hearing, the judge found that he was sure that the offender had driven in the way that he did, with no regard for the safety of pedestrians and other motorists, in order to try to force the police to abandon the pursuit of him, just as they had five days earlier.

12.  At all events, towards the end of this driving, the offender entered Parish Lane in Penge, a residential street with cars parked on either side.  At this time he was travelling at speeds estimated at up to 52 or 53mph.  He crossed to the opposite carriageway to overtake a white van.  He did so as both vehicles approached a T-junction with Lennard Road.  There were two moped riders waiting at the junction just before he approached.  Further, a double decker bus had just pulled away.  The rider of one of the mopeds turned left, just ahead of the offender in the Ford Focus car; the rider was clearly visible.  The offender overtook the white van immediately before the "Give Way" lines, and then turned the car hard to the left on to Lennard Road.  At first, he braked briefly, but was also heard to apply the throttle.  This caused the rear of the Ford Focus to yaw to the right as he oversteered.  His purpose clearly was to seek to overtake the motorcycle rider and also the double decker bus, both now just ahead on Lennard Road.  These vehicles were moving near to the centre line of the carriageway because of a line of cars parked on the left-hand side of the road.

13.  The offender had therefore sought to negotiate the junction under-braking but at speed, with audible throttle input, and had approached at much too high a speed.  He then attempted to overtake the two vehicles whilst joining the road, without any real forward visibility.  At first he oversteered, causing the rear of the car to yaw to the right, and then he sought to correct the oversteer.  In the event, the car went further forward towards the other side of the road.  His attempt was to overtake but he was not in a position to do so.  There was a line of tall metal pavement bollards sited along the pavement edge.  By now the offender had lost control of the Ford Focus car so that it had travelled fully across the opposite side of the carriageway.

14.  At that very moment in time grandparents, Mr Martin and Mrs Diana Cooper, their 34 year old daughter Rosanne Cooper and four of their grandchildren, Makayah (aged 10), twins Niyah and Yahla (aged 13) (all children of their daughter Danielle Cooper), and Eva (aged 8) (the daughter of Rosanne Cooper) were walking along the side of the road.  They were walking to the local park so that the children could play and buy ice cream.

15.  The offender's vehicle mounted the pavement and struck one of the bollards.  This launched the front of the car into the air.  It landed on top of Rosanne Cooper and the children.

16.  The offender got out of the car and ran off almost immediately after it came to rest.  He was chased and caught.

17.  Rosanne Cooper and Makayah McDermott suffered catastrophic injury and died at the scene.  Yahla spent 26 days in hospital undergoing operations to save her left leg.  She is left with severe scarring on both legs.  Eva had been wedged under the vehicle.  She suffered grazes to her legs and burns from the exhaust pipe.

18.  When the offender was arrested and detained, he admitted driving.  He said, "I should have just stopped.  I don't want to go back to jail, and now I might have killed innocent people".  These comments were recorded and confirmed by his signature.  He also said: "I don't know what I was doing today.  I wish I'd just pulled over.  I came round the corner and just knocked these two women over".  When formally interviewed, he declined to comment.

19.  A blood sample was taken from the applicant about seven hours after the collision.  It was analysed for the presence of commonly used drugs.  It showed traces of drugs which the offender must have taken previously; it was consistent with previous use of cocaine, morphine and heroin.  It was not possible accurately to back-calculate to determine the level of such drugs.  Having considered the evidence at the hearing, the judge found, as he was entitled to, that he could not be sure that the offender was significantly impaired by drugs at the time of the collision, although nevertheless there was a significant quantity of benzoylecgonine within the offender's blood system.  The judge sentenced on the footing that such drugs as the offender had previously taken had had no causative impact in terms of what happened that afternoon.

20.  We have seen various moving statements made by family members of the victims.  We do not need to read them out or to cite them here.  The profound impact upon the members of the family will be permanent and will be obvious to all.

21.  In his submissions, Mr Heywood QC, appearing on behalf of the Attorney General, has drawn attention to the significant aggravating features of this case.  He submitted that on each occasion the offender's driving was very highly dangerous, which created a high and not simply a serious and obvious risk of death, and had been sustained.  Further, he submitted that the creation of such a high level of risk was deliberate, in the sense that the offender had consciously driven in this way in order to discourage the police from continuing pursuit, as he had succeeded in doing on the first occasion.  Further, the driving on 31st August 2016 had resulted in two fatalities and also in serious injury.  He also pointed out that the Ford Focus had been previously stolen and that the driving on each occasion was to evade lawful capture and to avoid police instructions to stop.  Further, the offender had no licence or third party insurance.  Indeed, it is not obvious that he had had any formal driver training.  It was also noted that the driving was undertaken whilst the offender was over the legal limit for benzoylecgonine (one of the breakdown products of cocaine).  It was further noted that it appears that the intention of the offender was to seek to sell the stolen Ford Focus car for the purposes of funding his drug addiction.

22.  Moreover, and notwithstanding his relatively young age, the offender has a very bad record. He has appeared before courts on 24 occasions and has been convicted of 53 offences, starting from the age of 13.  He has, for example, been convicted of offences of robbery, theft, burglary, handling, common assault, aggravated vehicle taking, vehicle interference, failing to surrender, and various breaches of court orders.  Furthermore, he was, as we have said, on licence at the time of all this offending.

23.  The following were acknowledged to be mitigating features: 

(1)  The offender had pleaded guilty.  The judge gave him appropriate credit for that; in particular, he gave him credit of 20 per cent for the guilty pleas to the counts of manslaughter.  No challenge is made as to the discount for plea taken by the judge.

(2)  The offender was still relatively young.  It also suffices to say that he has had a very troubled and difficult childhood and general background.

(3)  The offender has shown genuine remorse for all that happened.  Indeed, it also appears that he apologised when he gave evidence at the sentencing hearing.

24.  The judge also had before him a careful and thorough pre-sentence report.  It indicated that there was a serious pattern of escalating offending.  The author expressed the view that the offender represented a significant risk of serious harm to the public from similar offending.

25.  No one disputes that the Recorder of London approached this extremely difficult sentencing task with conspicuous thoroughness and care.  He had engaged in discussion with leading counsel before the hearing commenced, to establish the basis on which the sentencing was to proceed and to satisfy himself that the offences had properly been charged as manslaughter and not as causing death by dangerous driving.  

26. There followed a lengthy hearing before the judge that day.  The judge then took time to consider his sentencing remarks, which are clear, thorough and well-prepared.  The judge set out the facts in very great detail.  He found that the initial driving had been without regard for the safety of pedestrians and other motorists.  He was sure that the intention of the offender had been to force the police to abandon their pursuit, if that is what he could achieve.  

27.  The judge also stated that he had asked for an explanation from the prosecution as to why the offences had been charged as manslaughter, by reference to the charging standards.  The judge set out the charging standards in his sentencing remarks.  It is appropriate that we should also do so.  In the relevant respects, they say this:

"In cases where death has occurred as a result of the manner of the driving and it is clear from the available evidence that the standard of driving has been grossly negligent on the part of the driver, a charge of gross negligence manslaughter will be the correct charge.  Gross negligence manslaughter will not be charged unless there is something to set the case apart from those cases where a statutory offence such as causing death be dangerous driving or causing death by careless driving could be proved.  There will normally be evidence to show a very high risk of death making the case one of the utmost gravity."

28.  In this regard, the judge noted the prosecution point, which has been repeated before us today by Mr Heywood, that the offender must have taken the decision on 31st August to drive in the most dangerous of ways in order to force the police to abandon their pursuit, as they had done before.  That was a point which, as we have said, the judge accepted.  The judge further noted that the defence had not itself sought to say that charges of manslaughter were inappropriate.

29.  The judge then referred to the guidelines relating to causing death by dangerous driving – guidelines to which we will come.  He rightly and inevitably concluded that, by reference to an offence of causing death by dangerous driving, this would have been a level 1 offence.  The judge also went on to rule out the imposition of a life sentence on these counts of manslaughter.  We should record that it is expressly accepted on behalf of the Attorney General that he was justified in ruling out the imposition of a life sentence.  However, considering all the matters, the judge was satisfied that it was appropriate to make a finding of dangerousness against the offender and decided that an extended sentence was appropriate.  

30.  Having further considered the facts and having given an indication that in this particular context he did not see any great gulf between an appropriate sentence for gross negligence manslaughter and an appropriate sentence for causing death by dangerous driving, the judge imposed the sentence we have indicated.  

31.  It may be noted that, by comparison with the available statutory maximum of fourteen years' imprisonment for the statutory offence of causing death by dangerous driving, the judge went above that figure on these counts of manslaughter.  He indicated that he would have taken a starting point of fifteen years before giving credit for the guilty plea, albeit factoring in the other offences on the indictment.  Indeed, an extended sentence of fifteen years was itself only appropriate on counts 1 and 2 on the footing that the judge went above the fourteen year limit otherwise available for the offences of causing death by dangerous driving.  It is, of course, the case that for offences of manslaughter the sentence is at large: the maximum available is one of life imprisonment.

32.  That, then, was the sentencing exercise undertaken by the judge in, we repeat, his scrupulously thorough and carefully considered sentencing remarks.  

33.  Mr Heywood has submitted that this sentence was unduly lenient.  He submits that a custodial terms of twelve years' imprisonment for the totality of this offending was simply too low.  He makes two particular points.  First, it was submitted in writing, albeit it was not much emphasised before us orally this morning, that the judge had failed to give sufficient regard to there having been two entirely separate occasions of dangerous driving and thus had failed sufficiently to factor in an appropriate sentence for count 4 on the indictment.  Second, he submits that the judge had failed to have sufficient regard to the fact that this had been charged as an offence of manslaughter, to which the offender had pleaded guilty, in circumstances where throughout the offender had been driving so as to cause the police to desist from their pursuit.  More generally, it is said overall that the aggravating features were such that a sentence significantly in excess of the maximum otherwise available for an offence of causing death by dangerous driving was here appropriate.  

34.  On behalf of the offender, Mr Tyrone Smith QC disputes these submissions.  He submitted that this sentence was not even lenient, let alone unduly lenient.  He noted that the judge had made a finding of dangerousness for the purposes of the Criminal Justice Act 2003, and had imposed an extended sentence in consequence.  That means that the offender will be entitled to release only after serving two-thirds of his sentence; whereas, had the judge imposed a determinate term of custody, he stood to be released after serving one-half of his sentence.  That is correct; but it is to be understood that, in assessing dangerousness and in deciding on the imposition of the appropriate sentence, the judge could not permit himself to be influenced by the release dates upon which Parliament has settled.  

35.   More obviously to the point, Mr Smith submitted first that the judge had considered the case with scrupulous care and had left no relevant factor out of account; second, the fact that this case had been charged  by the Crown Prosecution Service as manslaughter should not be allowed to dictate the outcome and should not detract attention away from appropriate regard to the guidelines relating to causing death by dangerous driving: which he submitted were properly taken into consideration by the judge.  

36.  The judge, as we have indicated, clearly had been to a degree troubled by the way in which this case had been charged as manslaughter.  But the fact remains that it was charged as manslaughter and the offender had pleaded guilty to manslaughter in circumstances where it was accepted that his appalling driving had given rise to a very high risk of death to other drivers or pedestrians.  It was also, however, to be accepted that what the offender did was not deliberate; in the sense that he had not targeted or aimed at the family group walking along the pavement.  But what he had done, deliberately, was to drive in this appalling manner in the way that he did, thereby giving rise to the risk of death.  Thus it was that the case was charged as gross negligence manslaughter; although it has to be said that the actual words "gross negligence" hardly reflect all that happened that day.

37.  There has been ongoing debate as to whether the maximum available sentence of fourteen years' imprisonment currently set for the statutory offence of causing death by dangerous driving is appropriate and whether such maximum should be increased.  That, however, is a matter for Parliament; it is not a matter for the courts.  Nevertheless, it is clearly important that the sentence that Parliament has decreed as appropriate by way of a maximum for offences of causing death by dangerous driving is not to be circumvented simply and solely by means of the charge that the prosecution choose to bring.  As Mr Smith pointed out, many cases falling within level 1 of the guideline relating to causing death by dangerous driving could, on the argument of the Crown, potentially be charged as manslaughter.  For example, level 1 is described in the guideline as "the most serious offences encompassing driving that involved a deliberate decision to ignore, or a flagrant disregard for, the rules of the road and an apparent disregard for the great danger being caused to others".  The starting point given in the guideline for level 1 offending (that is, the most serious kind of offending) is eight years' custody, with a sentencing range of seven to fourteen years' custody.  Aggravating factors, which may take a sentence towards the top of the range, include more than one person being killed and serious injury to others.

38.  Whilst these points were properly made by Mr Smith, we must repeat that the fact remains that this case was charged as manslaughter and the offender had pleaded guilty to such charges.  

39.  We were referred to Attorney General's Reference No 93 of 2006 (R v Hussain) [2007] 2 Cr App R(S) 26, a case of gross negligence motor manslaughter on rather unusual facts.  Counsel was unable, however, to cite either to the judge or to us any case directly in point where driving of this particular kind had resulted in a gross negligence manslaughter conviction giving rise to a sentence exceeding the maximum available for causing death by dangerous driving.  Nevertheless, we were presented with a considerable number of other legal authorities, as indeed was the judge.  Many of them are of limited assistance, not least because the sentences were passed at a time of a different sentencing regime, and most related to instances of wrongful act manslaughter.  In any case, and as Mr Heywood rightly emphasised, all these cases ultimately depend on their own facts.  However, we did derive some assistance from three of the more recent authorities cited to us by counsel.  In R v Willett [2012] 2 Cr App R(S) 18 the position was that the appellant had been convicted of manslaughter on an indictment charging him with murder.  He and his brother had been in a car park intending to steal from vehicles.  As he was trying to break into a van, the owner of the van saw the attempt and stood in front of the car as the appellant's brother drove to the exit of the car park.  The appellant's brother drove over the owner causing fatal injuries.  The brother was convicted of murder.  The appellant, who was a passenger in the car, was sentenced to sixteen years' imprisonment for manslaughter – a sentence which was reduced by the Court of Appeal to one of fourteen years' imprisonment.  That sentence arose in circumstances where the car had been driven deliberately, in effect as though being used as a weapon, at the victim. 

40.  We were also referred to R v Etherington [2014] EWCA Crim 1867.  That was a case where, although manslaughter had been charged, pleas were accepted to an alternative count of causing death by dangerous driving.  The position there was that the appellant, who had relevant previous convictions, had deliberately driven at two young girls standing in the middle of the road, seemingly intending either to frighten them or to show off.  He had killed both of them.  A sentence of nine years' detention was described as "not excessive" by a constitution of this court.

41.  Much more recently, the decision in R v Clayton Williams [2017] EWCA Crim 305 was handed down  by a constitution of this court on 15th March 2017 (that is, after the sentence imposed in the present case in the Central Criminal Court).  In that case the appellant had been charged with murder but was convicted of manslaughter.  He had been driving a stolen car, seeking to escape from a burglary in which he had participated.  The police had sought to intervene.  In the event, Williams had driven the car deliberately across the central reservation of the road at one of the police officers who had sought to stop the car.  The police officer was killed.  Following his conviction after trial, Williams was sentenced on the footing that he had deliberately driven at the police officer and had recognised that in doing so he had inevitably subjected the officer to the risk of injury.  The sentence imposed by the trial judge of 20 years' detention in a young offender institution, described as "severe", was upheld by a constitution of this court.

42.  In the course of giving the court's judgment in Williams, the President of the Queen's Bench Division reviewed a number of authorities at considerable length.  The importance attached to death as the outcome, and the increase in minimum terms for murder cases was noted. The President also noted that in cases of death caused by a motor car there was a spectrum of cases and a spectrum of sentencing options available which may vary depending on how the case was charged.  At [29] he said this:

"It is clear that killing another person on the road can be the result of conduct which, in terms of culpability, lies above that contained within the definition of causing death by dangerous driving but short of establishing the intention required for murder.  It is in that space that is found the crime of manslaughter.  On the authorities, the risk of death involved in such an offence must be very high.  …"

43.  The outcome of Williams in terms of sentence, namely a sentence of 20 years' detention, bears thinking about.  In that case, in contrast to the present case, there had been no guilty plea; there had been a contested trial.  Indeed, there seems to have been precious little in the way of remorse on the part of the defendant in that case.  Second, whilst (and importantly) there was one death in Williams, not two as in the present case, a police officer acting in the course of his duty had been killed.  Third, and very significantly in our view and consistently also with the position in Willett, the driver (Williams) had entirely deliberately driven at the police constable in an attempt to flee from the scene of a crime when he realised that he would inevitably be subjecting the police constable to the risk of serious injury.  That cannot be said in the present case.  Here the offender had not deliberately driven at this family group, targeting them.  On the contrary, his intention was to escape from the police.  He then lost control of his car when driving in the heedlessly reckless way as he had done.

44.  At all events, what these various authorities do indicate is that the proposition may be endorsed that where manslaughter is properly charged a different approach to that available when sentencing for a statutory driving offence may be justified, depending on the facts and circumstances.

45.  In the present case the judge had indicated a starting point of fifteen years' custody on counts 1 and 2, taking into account also the other offences, before allowing credit for the guilty plea.  As we have said, that starting point was in excess of the maximum permitted for causing death by dangerous driving.  Contrary to Mr Heywood's argument, given the particular facts and circumstances of this case and given that the offender had not deliberately driven at the victims, we think that the judge was entitled to have regard as he did to the sentencing regime for causing death by dangerous driving: although of course he was not bound by it and indeed he self-evidently did not regard himself as bound by it because he went above the maximum available for such offending.  

46.  Accordingly, we conclude that overall the judge was entitled to address this sentencing exercise in the way that he did.  We are not overinfluenced by Mr Heywood's insistence on the point that here the offender had driven as he did in order to cause the police to give up the chase, just as he had succeeded in doing on the first occasion.  We agree that that is a relevant point.  But we do not think that it has the degree of force to which Mr Heywood would ascribe it, not least because the overall aim of the offender was in truth to evade the police.  Regrettably, that is a common enough occurrence in many cases of dangerous driving which result in death or serious injury.  

47.  Given that we can see no error in the judge's approach, we have to consider whether, nevertheless, he simply got it wrong when he imposed an extended sentence of fifteen years, comprising a custodial term of twelve years and an extended licence period of three years.  The judge was, in this regard, entitled to order all of the sentences to run concurrently; and he plainly had regard to the totality of the offending.

48.  What this court has to ask itself is whether or not the sentence arrived at was unduly lenient.  The fact, if it be a fact, that some judges perhaps might have passed a slightly longer sentence will not suffice.  We can only ask ourselves: was this sentence unduly lenient?  This court is only empowered to interfere if it concludes that a sentence was unduly lenient.

49.  Given all the circumstances, we are not able to conclude that this was an unduly lenient sentence.  The judge properly considered every available point and reached a conclusion which was properly open to him to reach.  

50.  In the result, we will grant leave because of the considerable importance attached to this case and because of its unusual circumstances, and in particular because it was charged as gross negligence manslaughter.  Nevertheless, although we grant leave, we dismiss this appeal.