No: 200903872/A2 
Neutral Citation Number: [2009] EWCA Crim 2561
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 16th October 2009
 
B e f o r e:

LORD JUSTICE MOSES 

MR JUSTICE OWEN 

HIS HONOUR JUDGE ROOK QC
(Sitting as a Judge of the CACD)
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 61 OF 2009
 
(PHILIP MICHAEL AIREY)
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Mr R Whittam QC appeared on behalf of the Attorney General
Mr N Worsley appeared on behalf of the Offender
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J U D G M E N T
1.	LORD JUSTICE MOSES:  This is a reference, pursuant to section 36 of the Criminal Justice Act 1988, in which Her Majesty's Attorney‑General seeks permission on the basis that a sentence of four‑and‑a‑half years' imprisonment, for causing death by dangerous driving was unduly lenient.  We say straightaway that we give permission.
2.	We turn then to the basis upon which it is submitted that that sentence was unduly lenient.
3.	The offender is 50 years old, having pleaded not guilty he was tried and convicted of causing death by dangerous driving and sentenced by the trial judge, shortly after, on 30th June 2009 at Leeds Crown Court.  Mr Recorder Cox QC passed a sentence of four‑and‑a‑half years' imprisonment for causing death by dangerous driving and for doing acts tending and intended to pervert the course of justice, passed a consecutive sentence of 6 months' imprisonment and for a further offence of perverting the course of justice, a further sentence of 6 months' imprisonment to run concurrent.
4.	This offender and the deceased raced their motorcars a road, outside Ottley, near Leeds, over a substantial distance of some 1.84 kilometres.
5.	This offender and the deceased had been together in a public house and were anxious at the time they left, at about 10.30 in the evening, to get to another public house.  The evidence is that the deceased had been drinking so that his blood alcohol concentration was twice the permitted limit.  The offender was later to tell the police, and there was no evidence to the contrary, that he had drunk some 3 pints of beer.  The judge took the view that if he was not over the limit, he was certainly near it and his actions demonstrate all the exaggerated verve of someone who had been drinking before they drove.
6.	Both set‑off, the deceased in his Volkswagen Transporter, the offender in a Toyota Land Cruiser.  They were intending to travel twice the distance of just over the 1 mile that they succeeded in travelling.  The speed limit was between 30 and 40 miles per hour and thereafter the limit for a single carriage road of 60 miles an hour, although the deceased's vehicle was subject to a 50 mile an hour speed limit.
7.	Shortly after they set‑off a witness saw them, saw both vehicles approach and they overtook him at an excessive speed. Very shortly after they set‑off they were racing.  The racing continued and was seen by another witness within the 30 mile per hour limit.  They appeared to her, and one must make allowances for the inaccuracy of a stationary on looker, to be travelling in the region of 80 miles per hour, engaged in a form of competitive driving or racing.  After, as we have said, a distance of just over a mile, that is 2.48 kilometres, the deceased's vehicle went onto the wrong side of the road.  There it collided with an on‑coming but fortunately empty bus, driven by Mr Tomins who suffered severe injury, a broken leg, a broken wrist, a broken knuckle and suffered the emotional affects of that terrifying accident.
8.	The offender who appeared to be setting the pace lost control of hi vehicle by the bend but managed to regain the carriageway (when it struck the nearside kerb), but the deceased's vehicle, which crashed into the bus, was destroyed and the driver, this offender's friend, died at the scene.
9.	The offender did not stop to help.  It is plain that he left because he feared he would be over the permitted level.  He went home, collected his wife, who drove him back to the scene, where they spoke to a police officer.  Both pretended that they were expecting to see the deceased that evening.  The pretence was maintained when they called the police and repeated when a family liaison officer went to their house and told them that this offender's friend was dead.  The pretence was maintained into the following afternoon, when the police officer visited the offender to take a statement.  Thus, as the Attorney puts it, the offender deliberately misled the police to avoid culpability.
10.	The judge noted these points in passing sentence in respect of this offender, who is aged 50, who had no previous convictions and who ran his own business.  The pre‑sentence report available to the judge hardly mitigated the offender's situation, since he felt that the blame lay with his friend and not with himself.  He thus persisted in trying to absolve himself from responsibility for his friend's death.
11.	In considering whether the sentence of four‑and‑a‑half  years' imprisonment was appropriate, the starting point must be at what level of gravity this dangerous driving came.  We had, during the course of argument, in mind that this might be a case which fell within level 1, encompassing the most serious offences of driving, with a deliberate decision to ignore the rules of the road and an apparent disregard for the great danger being caused to others.  We do not resile from the suggestion that this piece of driving, persistent and deliberate as it was, racing along this road, did fall within level 1, but it would not be right to reach a concluded view as to that adverse to this offender, since it appears, and we are grateful to Mr Worsley, who did not appear for the defence at the time, for taking the trouble to research this point, that during the course of mitigation it was submitted that this was a level 2 case, with aggravating features and although it does not appear in the transcript the Recorder uttered his assent.  Of course such a conclusion is not binding on us but, in the absence of any record of a dispute on behalf of the prosecution at the time, we take the view that fairness demands that we regard this, for the purposes of considering whether the sentence was unduly lenient as a level 2 case.
12.	In describing level 2 cases, it must be noted that not only does the guideline encompass driving creating a substantial risk of danger, but that it is likely to be characterised by greatly excessive speed, racing or competitive driving against another driver.  That this was the quality of the driving in this case is beyond dispute.
13.	It was also aggravated by factors identified in the guideline, particularly the consumption of alcohol, serious injury, not to the deceased but to another driver of a public service vehicle and driving off in an attempt to avoid detection or apprehension.  Those were three aggravating features.
14.	Against that must be set the fact that the deceased did contribute to his own death.  But we remark that that is of little mitigation in a case where he had plainly been egged on by this offender and the very vice of racing or competitive driving is to incite another to join in that activity.  We have to be careful not to punish this offender twice in respect of driving off to avoid detection, since he was punished with the consecutive sentence, in relation to perverting the course of justice.  But that offence does reveal and underline the attitude of this offender at the time in seeking to divest himself of the responsibility and the blame that was truly his.  It is difficult to overemphasise his callous behaviour at the scene and following the scene of the death of his friend.
15.	We must bear in mind his previous good character and the fact that the judge did not take the view that it was proved he had drunk over the limit, however likely that must have been if he consumed 3 pints of beer.
16.	The starting point for an offence of level 2 is 5 years custody, with a sentencing range of between 4 to 7.  We have also been referred to other authorities the relevant racing and persistent bad driving, particularly R v Kibble [2009] 2 Cr App R(S) Case No 93, 616, in which the court took the view that having regard to the appellant's youth and remorse and lack of driving experience, the sentence of 8 years' detention was quashed, following conviction, and a sentence of 6 years' detention substituted.  We were referred to R v Bowyer [2009] EWCA Crim 112, in which, after persistent dangerous driving, in which two men were killed, the court took the view that the sentence should fall between the boundary of level 1 and 2 and upheld a sentence of six‑and‑a‑half years' imprisonment.
17.	These authorities, and most importantly the guideline, demonstrate to our satisfaction that a sentence of  four‑and‑a‑half years' imprisonment was unduly lenient.  We think that a sentence in the region of 8 years' imprisonment would have properly reflected the gravity of this driving, deliberate, persistent and calculated to cause danger to others, as it was.
18.	However, we must take into account the impact now on a prisoner who, we are told and accept from the reports, is doing well in prison and must by now have changed his attitude to his responsibility for this offence.  We must also bear in mind the affect of an increase in sentence ‑ what is loosely described as the double jeopardy he has faced.  In those circumstances, bearing in mind the 6 months' imprisonment consecutive was wholly appropriate, we shall pass a sentence of six‑and‑a‑half years' imprisonment in respect of causing death by dangerous driving, raising the sentence passed by 2 years, leaving in place the consecutive sentence of 6 months' imprisonment for perverting the course of justice, making a sentence of 7 years in all.  The reference is allowed to that extent.
19.	LORD JUSTICE MOSES:  We should make clear that the sentence will run from the date that the sentence was passed by the Recorder because he has been inside ever since then.
20.	MR WORSLEY:  Thank you.