No. 2008/05775/A6

Neutral Citation Number: [2008] EWCA Crim 3135
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday  9  December  2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR  JUSTICE  FORBES
and
MRS  JUSTICE  SLADE  DBE
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ATTORNEY GENERAL'S REFERENCE Nos. 65 of 2008
UNDER  SECTION  36  OF
THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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DALTERY  ROGER  PEARSON

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Mr E Brown QC appeared on behalf of the Attorney General

Mr T Finch appeared on behalf of the Offender
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J U D G M E N T
Tuesday  9  December  2008

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer to this court for review a sentence she considers to be unduly lenient.  We grant leave. 

2.  The offender is Daltery Roger Pearson.  He was born in August 1979 and is 29 years of age.  He has a very serious record for criminal activities involving the misuse of motor vehicles.  On 3 October 2008, at Newcastle Crown Court, he appeared before His Honour Judge Forster QC to be sentenced for seven separate matters: (1) causing death by dangerous driving; (2) careless driving; (3) driving while over the prescribed limit; (4) and (5) two counts of driving while disqualified; and (6) and (7) two counts of driving with no insurance.  The offender indicated a guilty plea to all matters save for one count of dangerous driving, which in due course was dealt with as careless driving (the second offence).  He was sentenced to five years' imprisonment for causing death by dangerous driving and was disqualified from driving for six years.  Concurrent sentences of four months' imprisonment were imposed for driving while disqualified and driving with excess alcohol.  No separate penalty was imposed for the remaining offences.  However, the offender's driving licence was appropriately endorsed and he was required to take an extended test at the conclusion of his disqualification. 

3.  The facts of this case demonstrate serious criminal misconduct perpetrated through the misuse of a motor car.  On the late evening of 19 January 2008 the offender, while disqualified, having consumed excess alcohol, drove his Ford Mondeo dangerously for a long period on the main roads leading out of the City of Newcastle upon Tyne.  There were passengers in the vehicle, one of whom was his best friend, Dane Naylor.  The offender's driving was witnessed by many motorists.  He plainly drove in a very dangerous way.  One described his driving as "ridiculous"; another described him driving "like a maniac".  He was seen to swerve in and out of lanes, to drive aggressively at high speeds, and to pull violently in front of other vehicles on the road.  This driving went on for something like 3.6 miles before there was a fatal collision.  Eventually the offender lost control of his car on the dual carriageway.  He caused it to crash and his friend, Mr Naylor, was killed.  The crash was his final incident of dangerous driving.  While overtaking another vehicle, the offender lost control when his car struck the central reservation kerb, mounted that kerb and then scraped along the crash barrier.  His car was seen to rotate across the carriageway of the road, only just missing another car.  The front nearside of the Mondeo then collided with a pedestrian barrier.  The car was severely damaged.  Those who attended the scene described what they saw as "carnage". 

4.  The offender was not in the immediate vicinity of the crash.  He was found 130 metres away.  He waited at the scene and was compliant when detained by the police.  A blood specimen was taken from him two hours later.  That contained 167 milligrams of alcohol per 100 millilitres of blood.  Back calculation indicated a reading in the blood of between 190 and 225 milligrams of alcohol at the time when the accident occurred.  As is well-known, the legal limit is set at 80 milligrams per 100 millilitres of blood. 

5.  Mr Naylor was grievously injured.  He was rushed to hospital from the scene but, sadly, he was pronounced dead at 11.48pm.  He had suffered multiple injuries consistent with having been involved in a complex multi-impact road traffic collision. 

6.  Having set out that brief summary, we must describe the facts in more detail.  On 19 January 2008 the offender with three others, his wife (Donna), his friend (Dane Naylor) and Mr Naylor's girlfriend, Samantha Hogg (the sister of the offender's wife Donna) had planned to go out into Newcastle City Centre.  Samantha Hogg was five months pregnant with Dane Naylor's child.  They were going to watch a football match together.  The offender arrived home later than anticipated.  The original plan was that they would all travel together by bus into Newcastle, but by the time the offender arrived, the others, who were due to go with him, had been drinking.  Because they were late, and despite his disqualification from driving, a lack of insurance and a lack of a licence, the offender drove them all into Newcastle.  The suggestion was that he drove to the city centre and left the car there overnight.  Shortly before 5pm the group set out together in the offender's Ford Mondeo.  They first went to a bar, before travelling to the football match at St James' Park.  Kick-off was at 5.15pm, so there was not much time for the group to reach the football match before the start.  

7.  The offender's driving was described by a witness as normal until the car joined the A1058 Coast Road.  At this point the offender turned sharply to the left and entered the slip road.  The passengers in the Mondeo were caused to be flung around inside the vehicle.   The description we are about to give relates to the offence of careless driving.  

8.  The offender drove past road works and a contraflow, before he accelerated hard, causing the vehicle to surge forward into the offside lane.  He drove up at speed immediately behind the vehicle ahead of him, with the bumper of his Mondeo almost touching the bumper of the car in front.  This was seen (as plainly it was) as an attempt to persuade the driver in front to give way to the offender.  This manoeuvre, which was perpetrated at speed, was repeated a number of times on the way into the city centre. 

9.  Eventually the Mondeo slowed down as it approached a section of road covered by speed cameras.  The car was driven into the city centre and parked in a small car park close to the football ground.  At that stage Dane Naylor was said to have expressed relief that he had survived the journey.  With the intention of collecting the car on the following day, the offender bought a full-day parking ticket.  That concludes a brief summary of the offence of careless driving. 

10.  That evening the group went into the bar, as intended. They had one drink and decided to move on because the bar was crowded.  They went to another bar in order to watch the remainder of the match.  The four of them separated and agreed to reconvene in another bar at 9pm.  There was something of a disagreement (a tiff) which caused the two couples to separate.  The two men stayed together, as did the two women. 

11.  Thereafter, there was an attempt to achieve a reconciliation and some peace between the two protagonists in the argument.  That does not matter to the issues which we have to resolve.  Eventually, after telephone calls and text messages, Mr Naylor decided that he wanted to go home.  The offender collected Naylor in his car from the bus station and set off on the journey home.  We were pressed with the consideration that the decision to drive home was not a decision made by a man who had gone into town intending to drink and then drive, but a decision by a man who had been drinking to drive when his original intention had been to leave his car overnight.  We note the submission.  

12.  We turn to the dangerous driving which culminated in the accident which caused Mr Naylor's death.  An HGV driver and part-time taxi driver was taking some passengers in his taxi through the Haymarket in Newcastle.  Having turned right into St Mary's Place, he became aware of the offender's vehicle travelling quickly up behind him, forcing him to pull over to his nearside so as to allow the offender to pass him.  He observed the Mondeo travel around the next bend at high speed.  The Mondeo nearly went out of control at that stage.  Its rear swayed from side to side and it clipped the kerb.  The driver of the taxi believed that the driver of the Mondeo must be drunk -- a belief which was plainly correct.  The Mondeo was seen to weave between two lines of traffic travelling in excess of the speed limit.  It came to a halt at traffic lights on Jesmond Road.  A passenger in the taxi described the Mondeo pulling away at great speed as the lights turned green.  It continued to veer severely from side to side, accelerating away hard, taking a bend at speed and almost clipping the kerb again.  This was the witness who described the Mondeo's speed as "ridiculous".  

13.  Another taxi was travelling east on the Coast Road.  As the it entered the underpass on Jesmond Road, the driver became aware of the offender's Mondeo to his right in the outer lane, slightly behind another vehicle.  The Mondeo suddenly pulled across the path of the taxi to overtake the vehicle in front of him.  It caused the taxi driver to brake suddenly to avoid a collision.  In the meantime the driver of the first taxi saw that the offender was forced to stop at the traffic lights prior to Jesmond Dean Park.  Again he took off at speed when the lights turned green, and then he slowed violently as a speed camera came into view.  As the Mondeo approached a roundabout, another car was seen to have to brake violently to avoid a collision with the Mondeo.  

14.  The Mondeo approached the underpass at the junction of Chillingham Road with Benton Lane.  Another taxi which was on the road was overtaken by the Mondeo.  The driver was sufficiently concerned about the way in which the Mondeo was being driven that he decided to drop well back to make sure that he had an adequate braking distance.  As he drove through the underpass, this taxi driver saw the Mondeo drive up close behind another black taxi in the outside lane.  Another vehicle was travelling parallel to that taxi in the inside lane, so that the two cars were more or less side by side travelling at a normal speed.  The Mondeo drove to within two or three feet of the taxi in front, travelling at about 50mph.  As it approached a speed camera the Mondeo veered suddenly and quickly from the outside to the inside lane close behind the vehicle in that lane and then veered sharply back into the outside lane, this time coming up close to another taxi.  

15.  Once the vehicles had passed through the speed camera, the Mondeo veered sharply to its left into the inside lane, followed after a short distance by a sharp movement back into the outside lane, deliberately trying to make the vehicles ahead travel more quickly.  Having passed another speed camera, a car moved over to the inside lane so that the offender was able to accelerate away at speed.  As it did so, it appeared suddenly in the sight of a lady who was driving her car in the vicinity of the Wills Building.  She was aware of a taxi to her right in the offside late.  The speed limit was 50mph.  She heard the taxi accelerate.  She then became aware of the Mondeo on her offside.  Plainly the taxi had accelerated in order to get away from what must have appeared to be the pursuing Mondeo.  The Mondeo pulled immediately in front of the lady driver.  She had to brake suddenly to avoid a collision.  She was shaken by this driving.  It was this witness who said that she was nearly "wiped out by a maniac".  The Mondeo continued in the inside lane at high speed.  As it caught up with the taxi in the offside lane, it swerved directly in front of it. 

16.  On leaving the camera zone in the vicinity of the Wills Building, the road starts to climb from the underpass to Benfield Road.  The speed restriction then becomes 70mph.  Another car was approaching the crest of this road when its driver became aware of the Mondeo immediately behind him.  This driver noticed the Mondeo swerving violently from side to side as though the driver was shaking the steering wheel.  He suspected (again as it turns out correctly) that the driver was drunk.  Unsurprisingly, concerned by these manoeuvres, the driver pulled over to his left so as to allow the Mondeo to pass him.  It passed on his offside and it accelerated sharply away.  The car followed it along its route towards the Wallsend underpass.  As the Mondeo sped away it was moving from side to side, travelling at a speed in excess of 80mph, until it drew level with another car.  This car was travelling in the inside lane.  Its driver believed that the driver of the Mondeo lost control of it as it passed him in the outside lane.  That caused the Mondeo then to come immediately in front of the car.
  
17.  What occurred next happened at great speed.  The Mondeo shot left across the front of the car at an almost 90 degree angle.  The attention of a nearby pedestrian was drawn to the Mondeo as it swerved at excessive speed.  The pedestrian also saw the car swerve violently to its left across the carriageway.  This manoeuvre required the driver of the car in the inside lane to brake hard in order to avoid a collision.  This driver fortunately managed to avoid the collision as the Mondeo collided with a metal fence on the nearside of the road.  It went through the pedestrian barrier on the nearside, onto Malton Gardens and continued across the road colliding with a lamp post on the north footpath before coming to a halt.  The pedestrian immediately telephoned the police.  The offender was seen to stumble towards the fence on the north footpath of Malton Gardens. 

18.  Malton Gardens is a single carriageway road running parallel with the A1058 Coast Road and is separated from it by a system of pedestrian railings.  

19.  A number of people arrived at the scene.  One of those who arrived did her best to assist the very severely injured Mr Naylor, who was found lying on the kerb towards the rear of the vehicle.  He was unconscious and obviously very seriously injured.  The emergency services were called.  People lent what assistance they could pending the arrival of the police and ambulance services.

20.  The road surface was found by police officers to be damp.  One officer described the scene as "carnage".  The Mondeo was stationary.  A section of railings was missing.  There was debris in the road.  A bent section of the missing railing was lying 20 metres from the Ford Mondeo.  A further section of railing was embedded in the front of it and the vehicle's air bag had been operated.  A lamp standard sustained severe damage. 

21.  The offender was found near the scene.  His top half was covered in blood.  He had a badly fractured right arm, the bone protruding through the skin.  The offender was apprehended.  He volunteered the fact that he had been driving the car.  He claimed that he was the sole occupant.  When the officers invited the offender to sign the notes they had made in their notebooks, he declined to do so.  The view was formed by the paramedics who attended the scene that the offender was extremely drunk as well as injured.  He was taken by ambulance to the general hospital. 

22.  Following a collision investigation, a report was produced.  The conclusion about the immediate cause of the accident was that while the Mondeo was overtaking another vehicle it struck the central reservation kerb.  Thereafter, it mounted the central reservation kerb, scraped along the crash barrier for 11.5 metres and then began to rotate anticlockwise across the eastbound carriageway.  This rotation caused the Mondeo to cross the path of a vehicle.  The front nearside of the Mondeo then collided with the pedestrian barrier on the nearside and it rotated sharply anticlockwise, bringing the offside of the vehicle into the barrier.  That impact tore off four panels of the barrier, which were thrown across the gardens, the furthest of which landed 44 metres from the damaged area.  The Mondeo continued through the barrier, across Molten Gardens and mounted the grass verge.  It then struck the lamp post, rotated yet again, and finally came to rest in a bus lay-by.

23.  A blood specimen provided by the offender was found to contain alcohol at a concentration of 167 milligrams per 100 millilitres.  The specimen was taken more than two hours after the accident.  A back calculation revealed a level of 190-225 milligrams of alcohol per 100 millilitres of blood (substantially more than double the permitted maximum).  

24.  The offender was interviewed three times.  During the interviews he claimed that he could remember nothing between the moment when he handed his wife £20 while they were in Newcastle and waking up in hospital; he had no recollection of the accident, nor indeed of its aftermath.  When questioned about the journey into Newcastle before he had handed his wife the £20, the offender's recollection was that it was uneventful, although he conceded that he may have been driving a little too fast and too close to the vehicles in front of him because he was late. 

25.  He had purchased the Mondeo in November 2007.  He had bought it and continued to drive it, despite the fact that he had been disqualified from driving.  He said that his reason for using the car was to visit her newly born child in hospital in Middlesborough.  He accepted that not only was he a disqualified driver but that he had never had a valid driving licence and had never held motor insurance.  When questioned about the amount of alcohol he had consumed, the offender stated that he had had two or possibly three pints of lager.  He made the point that at the time he had not intended to drive home on the evening of the accident.  

26.  The offender was aged 28 when these offences were committed.  He has many previous convictions dating pack to 1996.  They cover a broad spectrum of offences, including theft, breaches, public disorder offences and drugs offences.  He has been sentenced to a range of different penalties, including community orders and custody.  However, there are offences of particular relevance to this Reference by the Solicitor General.  In 2000 the offender was convicted for two offences of driving while unfit through drink or drugs, for which he was sentenced to imprisonment.  He was found guilty of offences including driving without a licence and using a vehicle without a test certificate, the vehicle being in a dangerous and defective condition.  In October 2001 he pleaded guilty to driving while disqualified and without insurance.  He was sentenced to three months' imprisonment for driving while disqualified.  In August 2005 he pleaded guilty to driving a vehicle taken without consent, driving with no insurance and driving without a licence.  He was fined.  In July 2006 he pleaded guilty to driving dangerously a vehicle which had been taken without the owner's consent, driving without a licence and using a vehicle without insurance.  He was sentenced to four months' imprisonment for dangerous driving.  On 1 April 2008 he was sentenced to four months' imprisonment suspended for fifteen months for offences contrary to the Fraud Act 2006, which offences were committed in 2007.   

27.  Before passing sentence the learned judge reflected carefully on the matters in mitigation and the contents of the pre-sentence report.  He had his attention drawn, and plainly focused very closely on, the condition of the offender's baby.  We need not go through the details; they are referred to in the report.  The judge described as "particular personal mitigation" the fact that the offender's daughter (then eleven months old) suffered from irreversible brain damage.  The offender was described as involved in providing much needed care for that purpose.  

28.  There was a letter before the judge from Mr Naylor's fiancee and the mother of his son, born posthumously.  We too have read that letter.  In effect it is a plea to the court to treat the offender as leniently as possible.  It is a message reiterated in the material we have had put before us today.  She wrote on 8 December that any extra sentence imposed on the offender would cause her more distress and indeed more distress to the family as a whole.  It describes some of the problems with the offender's daughter, which we shall not repeat, but it ends by asking the court to understand that the situation is exceptional and that "a bigger sentence will not help anyone involved". 

29.  The facts of this case, long narrated, speak for themselves.  A summary of its features runs the danger of concealing some of the aggressive way in which this driving persisted for something like three-and-a-half miles in a city centre.  The offender had never taken a driving test, yet he bought a vehicle and he drove it with a blatant disregard for the fact that he was not qualified to do so and not insured for the purpose.  In the past he had been convicted of driving dangerously; he had been convicted twice of driving having consumed excess alcohol; and he had been convicted more than once of driving while disqualified and without insurance.  On this fatal occasion all these offences were repeated.   

30.  The stark reality of the case is that both when he was driving to the football match, and more seriously still when driving afterwards, any number of individuals on the road in Newcastle that evening might have been killed.  The driving on the second occasion was a prolonged, shocking piece of aggressive driving by a drunken driver.  The offender disregarded the ordinary laws which are designed to make the road as safe as in reality they can be.  However the case is addressed, it ends up in the highest level of criminal culpability.  It was precisely to cater for those convicted of this sort of very serious offence that the maximum sentence available to sentencing judges was increased to fourteen years.  

31.  We recognise that the offender is entitled to credit for his guilty plea, although his prospects of an acquittal were remote in the extreme.  We recognise, too, that the offender himself suffered a serious injury.  Although he did not flee from the scene, he was less than honest and forthcoming during the course of the police investigation.  We accept without hesitation that this is a family disaster.  The deceased was the offender's best friend and a member of his own family and there have been serious repercussions for the family as a whole.  The offender is the uncle of a little boy whose father he killed before the little boy was born.  We have of course taken note of the supplication of the deceased's fiancee, but we must add that a plea for a lenient sentence, like a plea for a severe sentence, cannot in the end influence the proper sentencing decision.  We take note of the problems faced by the offender's own small child.  Plainly the condition of that child is a very serious one.

32.  The current Sentencing Guidelines Council's Definitive Guideline invites attention to the effect of the accident on an offender.  It notes that injury to the offender may be a mitigating factor where the offender has suffered very serious injuries, but goes on to add that in most cases 

		"the weighting it is given will be dictated by the circumstances of the offence and the effect should bear a direct relationship to the extent to which the offender's driving was at fault.  The greater the fault, the less the effect of mitigation." 

In relation to the consideration that one or more of the victims was in a close personal or family relationship with the offender, the guidelines indicate:

		"This may be a mitigating factor.  In line with the approach where the offender is very seriously injured, the degree to which the relationship influences the sentence should be linked to offender culpability in relation to the commission of the offence.  Mitigation for this reason is likely to have less effect where the culpability of the driver is particularly high."

33.  This is a case of the highest culpability.  We acknowledge that there is some mitigation.  We have outlined such mitigation as we can find and our approach to it.  However, in the end, when set against the exceptionally bad driving with which the court was concerned on this occasion, it is of limited value.  In our judgment, despite the obvious care with which he approached his responsibilities, the learned judge allowed the mitigation to weigh much too heavily in the balance against the offender's culpability.  The sentence was unduly lenient and seriously so.  

34.  Although we have taken account of the moving plea by the partner of the deceased, we find ourselves unable to pass a sentence on this offender for this dreadful piece of driving of less than ten years' imprisonment.  That sentence will be substituted for that of five years' imprisonment imposed at Newcastle Crown Court for causing death by dangerous driving.  
 
MR FINCH:  My Lord, I wonder if I may mention one matter?

THE LORD CHIEF JUSTICE:  Yes?

MR FINCH:  If the House of Lords is to be petitioned then there must be an application made within fourteen days.  But I wonder at this stage whether I may seek your Lordships' and my Lady's leave to petition the House of Lords in this case?  I am extremely conscious that this is –-

THE LORD CHIEF JUSTICE:  What is the point of law?

MR FINCH:  My Lords and my Lady, and without formulating the details –-

THE LORD CHIEF JUSTICE:  No, just summarise it. 

MR FINCH:  "Whether a sentencing judge in circumstances such as these is entitled to weigh heavily into the sentencing exercise personal mitigation." 

THE LORD CHIEF JUSTICE:  That is not a point of law.  Of course the judge is entitled to weigh in mitigation, just as we have.  I think you will have to do better than that, Mr Finch. 

MR FINCH:  Yes, I appreciate I will have to do better than that.

THE LORD CHIEF JUSTICE:  Would you like to postpone your application?  We will give you seven days in which to formulate any question you wish to ask us to certify.  Let Mr Brown have a copy of it and we will give our ruling in writing in due course.

MR FINCH:  I am very much obliged. 

THE LORD CHIEF JUSTICE:  Very well, Mr Finch.  Thank you.