No: 2006/5504/A1 
Neutral Citation Number: [2006] EWCA Crim 3375
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 19 December 2006
 
B E F O R E:

LADY JUSTICE HALLETT 

MR JUSTICE MACKAY 

THE RECORDER OF BIRMINGHAM 
(Sitting as a Judge of the CACD) 

‑ ‑ ‑ ‑ ‑ ‑ ‑
REFERENCE BY THE ATTORNEY GENERAL UNDER 
36.s CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL's REFERENCE NO 123 OF 2006 
 
 ‑ ‑ ‑ ‑ ‑ ‑ ‑
Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
‑ ‑ ‑ ‑ ‑ ‑ ‑ 
MR C AYLETT appeared on behalf of the ATTORNEY GENERAL
MR S JESSOP appeared on behalf of the OFFENDER
 ‑ ‑ ‑ ‑ ‑ ‑ ‑
J U D G M E N T 
1.	LADY JUSTICE HALLETT:  This is an application by Her Majesty's Attorney General for leave to refer a sentence which he regards as unduly lenient.  The sentence was imposed on 4th October 2006 in the Crown Court at Aylesbury upon the offender, Charles Sharp, now aged 38.  He had pleaded guilty to one count of causing death by careless driving when over the prescribed limit, contrary to section 3A(1)(b) of the Road Traffic Act 1988.  He had also pleaded guilty to one count of driving without a licence and one of without insurance.  He pleaded not guilty to a count of dangerous driving which was left on the file.  
2.	His Honour Judge Tyrer sentenced him to three years' imprisonment.  He disqualified him from driving for five years and ordered him to take an extended driving test.  No separate penalty was passed on the summary matters.  His licence was endorsed with nine penalty points.  
3.	The offences were all committed after 4th April 2004 and the judge directed that the 201 days the offender had spent on remand would count towards his sentence.  
4.	Her Majesty's Attorney General has brought to our attention the following salient facts of the offences.  On 15th March 2006, Mr Sharp, who lived on a travellers’ site in Buckinghamshire, drove a communal Ford Iveco tipper truck along New Road, Weston Turville.  His passenger was a Mr Joseph Canning with whom he had been working for a few days.  The road was dry.  Mr Sharp failed to negotiate a gentle right‑hand bend.  The truck left the road, drifted into the grass verge for about 60 metres, fell into a ditch and collided with a tree. Fortunately, no other vehicles were involved.  
5.	A passer‑by, a Mr Williams, managed to extricate Mr Sharp from his cab and alerted the emergency services.  Mr Cannings however was gravely injured in the accident and sadly, died at the scene.  Meanwhile, Mr Sharp wandered off onto a nearby golf course.  He returned to the vehicle and he was seen to make attempts to hide a number of cans of strong lager in the vehicle.  A number of cans remained in the vehicle and were discovered when the police searched it.  A breath test at the scene proved positive and on arrest, a further sample of breath taken from him provided a reading of 96 micrograms on a limit of 35.  
6.	In interview, Mr Sharp gave the police a prepared statement insisting that he was alert at the time of the accident.  He claimed he had swerved to avoid another overtaking vehicle coming towards him. He said that he was an alcoholic and it was therefore normal for him to have a high level of alcohol in his system.  This, it seems, did not deter him from driving on a regular basis.
7.	When the tipper truck was examined an expert noted that the rear brakes were not working and that they must have failed some time before.  The front brakes were also said to be less efficient than they should have been.  The examiner stated that in his opinion it was inconceivable that the offender would not have known of the state of the brakes.  Mr Sharp accepted that he knew the brakes were "spongey", Mr Sharp's legal representatives, however, tried to delay the date of arraignment in order to obtain a further expert's report on the state of the brakes.  They wished to test whether or not the dangerous conditions of the brakes would have been as obvious to Mr Sharp as the prosecution's expert had opined.  The judge conducting the plea and case management hearing refused to delay arraignment and on 18th May 2006 Mr Sharp pleaded not guilty.  A trial was then fixed for June, but the date moved to August for reasons we do not need to go into.  The defence then requested a rearraignment on 4th July.  On that day, His Honour Judge Tyrer indicated that, despite the fact his plea of guilty was not entered at the first opportunity, he would give the offender a substantial measure of credit for his plea.  Given those observations, we assume, therefore, that the judge had in mind a sentence in the region of four years had the matter been contested.
8.	Mr Aylett who appeared on behalf of Her Majesty's Attorney General pointed to the following aggravating factors:  
(i)    the very high alcohol reading; 
(ii)   the fact that the vehicle was in an obviously dangerous condition.  
(iii)  the fact that Mr Sharp tried to conceal that he had been drinking.  
(iv)  the fact that he had never held a driving licence.  
(v)   the fact that he was uninsured.  
He  accepted that the following two mitigating factors were present: 
(i)   the offender had expressed considerable remorse for his actions and 
(ii)  the offender had pleaded guilty, albeit not at the first opportunity.
9.	We were referred to the guideline case of R v Cooksley [2003] 2 Cr.App.R (S) 275,  a decision of this court which was very much in the judge's mind at the time of sentence. However, Cooksley has been re‑visited. In R v Richardson and others [2006] EWCA Crim. 3186, the President of the Queen's Bench Division Sir Igor Judge, giving the judgment of the court, provided further guidance to sentencers in cases of causing death by careless driving when under the influence of drugs or alcohol.  At paragraph 19 of Richardson, the President indicated that the relevant starting points identified in Cooksley should be reassessed as follows:  (i) no aggravating circumstances: twelve months to two years' imprisonment; (ii) intermediate culpability: two to four‑and‑a‑half years' imprisonment; (iii) higher culpability: four‑and‑a‑half to seven years' imprisonment; (iv) most serious culpability: seven to fourteen years' imprisonment, the maximum sentence that may be imposed.
10.	Mr Aylett argued that this case falls at the top end of the higher culpability bracket.  He argued that it very nearly fell into the most serious culpability bracket.  He argued therefore that the judge should have taken as his starting point a sentence of seven years from which a deduction should have been made albeit not a full reduction for his plea of guilty.  He argued the judge was seriously in error in selecting a four year starting point.  
11.	Mr Jessop on behalf of Mr Sharp accepted that the court should be looking at the four‑and‑a‑half to seven year bracket.  He further accepted that where one has the level of alcohol present here, the culpability of an offender who causes death by careless driving equates to that of an offender who causes death by dangerous driving.  However, Mr Jessop argued that when one takes into account, as well as the level of alcohol, the remorse expressed by the appellant and his relatively timely plea of guilty, then one reaches a sentence close to that arrived at by the sentencing judge.  
12.	Thus, the questions for this court are what was the appropriate starting point for this offence and this offender and have the aggravating features in this case been sufficiently reflected in the sentence arrived at?  Cases of this kind present sentencing judges with an exceedingly difficult task.  We are acutely conscious of the pressures upon them.  Rarely will the families of the deceased and of the offender both leave court feeling that justice has been done.  However, any sentencing judge must focus his or her attention upon the level of culpability.  It is, therefore, to the level of culpability to which we now return.  
13.	It is difficult to assess the manner of driving on the facts of this case given that we know simply that the truck failed to negotiate a bend and left the road.  However, we consider that there is considerable force in Mr Aylett's submission that this appellant showed a complete disregard for his own safety and for the safety of others and that his level of culpability on the facts of this case was very high. It did merit a severe punishment.  This offender should never have been behind the wheel of a vehicle.  He was uninsured.  He was unlicensed and he was drunk.  As an alcoholic he knew full well that his level of alcohol was likely to be excessive at all times of the night and day.  He must have known he was drunk given the amount he had consumed, not only the night before but on the day in question.  He was equipped with yet more supplies of strong alcohol in the truck with him.  He was driving with two‑and‑a‑half times the permitted amount of alcohol in his system and he was driving a tipper truck.  In our view it must have been obvious to him that both he and his vehicle were in a dangerous condition.  Given his determination to keep driving whatever his condition and whatever the condition of his vehicle, this was a tragic accident waiting to happen. Mr Canning, his friend and work colleague, paid the ultimate penalty for the idiocy of this offender.
14.	Whether or not one selects as a starting point the level of higher culpability with grave aggravating features or whether one selects as a starting point the level of most serious culpability, which in our view is arguable, a sentence of 3 years imprisonment, even on a plea of guilty, is without doubt unduly lenient. We are entirely satisfied that the aggravating features of this case have not been properly reflected in the sentence imposed.  We would have expected, following a contested trial, a sentence in the region of seven to eight years and following a plea of guilty, a sentence in the region of five to six years.  We therefore give leave to Her Majesty’s Attorney General to refer the sentence to the court.    
15.	Taking into account all the circumstances, including the fact that this is the second time a court has considered Mr Sharp's sentence, in our judgment the appropriate course is to quash the sentence imposed and to impose in its place a sentence of five years' imprisonment.  The direction that the 201 days spent on remand will count towards the sentence remains in place.