Neutral Citation Number: [2001] EWCA Crim 2683
No: 01/3766/Z4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
The Strand
London WC2

Monday 26th November 2001

B E F O R E :

LORD JUSTICE LATHAM

MR JUSTICE SULLIVAN
and

MR JUSTICE STANLEY BURNTON

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R E G I N A

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DAVID SAMUEL CORKHILL

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040   Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR SIMON MINTZ appeared on behalf of the APPELLANT

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JUDGMENT
Monday 26th November 2001
1.	MR JUSTICE SULLIVAN: On 11th April 2001 in the Crown Court at Liverpool the appellant, who is now aged 19, pleaded guilty to causing death by dangerous driving and driving whilst disqualified. On 22nd June His Honour Judge David Clarke QC, the Recorder of Liverpool, sentenced him to seven years in a young offender institution in respect of the first of those counts. He was also disqualified from driving for seven years. No separate penalty was imposed in respect of the second count.
2.	The background is as follows. The appellant had been disqualified from driving for six months on 23rd October 2000. He had been exceeding the speed limit and driving without a driving licence and insurance. Less than two months later, in the early hours of the morning of 9th December 2000, when he was 18 years old, he drove a friend's car at high speed through Liverpool city centre, having offered a lift to five other young people. His passengers repeatedly shouted at him to “slow down”, but he took no notice. The three girls in the rear seat were crying and they asked him to let them out of the car. He failed to slow down as he approached traffic lights and went through at least one red light. As he drove along Dale Street towards Castle Street his speed was estimated by witnesses to be in the region of 50 mph, but he had been driving even faster through parts of the city centre, despite the fact that the roads were busy with people. One of his passengers described the appellant as apparently aiming for a group of people standing in the roadway on an occasion before the fatal collision.
3.	The deceased, 50-year-old Leslie Briscoe, was a married man. He and his wife had been married for 23 years. They had two sons aged 15 and 12 years old. He was on his way home together with work colleagues, having spent the evening at his employer's Christmas meal. It is clear from a letter before the court that he was a much-valued employee. As the party crossed Castle Street Mr Briscoe was a little ahead of his colleagues. He had almost reached the opposite side of the road when the car driven by the appellant came round the corner extremely fast and on the wrong side of the road with its engine revving. Mr Briscoe had no chance. He was unable to move out of the way. He was knocked down and run over. According to witnesses, the appellant made no attempt to brake or avoid Mr Briscoe and after the impact he drove off at speed. An ambulance was called but Mr Briscoe died from his injuries. 
4.	Following the accident, the appellant drove on for some miles to Bootle and there abandoned the car. He initially suggested that it should be burned. He did not repeat that suggestion. A witness at the scene had taken the registration number of the car and its owner was traced. The appellant said to his friends that he proposed to give himself up. He telephoned the police the following day and voluntarily attended the police station. When he was interviewed, he accepted he was the driver. He disputed the speeds put to him, but he did express remorse and he fully accepted that he deserved to be punished.
5.	In his very careful and detailed sentencing remarks, the learned judge said that the offence was one of the worst of its type because of the aggravating features that he identified. The appellant had driven at high speed through busy city centre streets. He had gone through a number of red lights for no apparent purpose other than showing off to his passengers. His passengers were terrified by his driving. They had tried to persuade him to slow down, but he had refused. He had lost control of the vehicle and struck Mr Briscoe. After the collision he had continued to drive dangerously and at high speed and did not immediately let his passengers out. He had indeed been clocked on a speed camera travelling at 75 mph following the accident.
6.	The judge considered that the offence was further aggravated by the fact that the appellant was an unqualified driver and had been disqualified from driving. He said that “the only mitigation” that he could find was the fact that the appellant had voluntarily surrendered to the police and entered a guilty plea. He accepted that the appellant was genuinely sorry for his actions. He took into account letters from Mr Briscoe's widow and from the appellant's mother. We have read those letters. They are eloquent testimony to the human tragedy in this case. Mrs Briscoe's letter gives a dignified and moving description of the devastating effects her husband's death has had upon her and her two sons.
7.	Mrs Corkhill explains the appellant's troubled background, which she attributes in part at least to severe injuries that he received when he was hit by a car when he was aged 10 years old.
8.	As we have mentioned, the appellant is now 19. He was 18 years old at the time of the offence. He had two previous convictions for driving without a licence and whilst uninsured and also for driving at excess speed. 
9.	The pre-sentence report said that he accepted full responsibility for his driving. He admitted that he had never taken driving lessons. He had never been a legal driver. He said that he had driven away from the scene in panic and had not been aware that the deceased had been fatally injured. The author of the report considered that the appellant's expressions of shame and remorse seemed to be entirely genuine, and he was visibly distressed when talking about the victim and his family. The report set out his early life, referred to the fractured skull that he had suffered in a traffic accident at the age of 10 and the fact that subsequently he had suffered psychiatric and other difficulties, including borderline dyslexia and memory loss. When he was 13 he was statemented as having special educational needs and his efforts to seek employment had been seriously affected by his problems with literacy and numeracy. He had been treated for depression in 1999 and was in receipt of incapacity benefit. Taking into account his age and immaturity, the issue of future risk, it was said that he would have to be reassessed in due course. It was recognised that a custodial sentence was inevitable. The appellant accepted that he should be punished but had said that he hoped to be able to make positive use of education and training facilities whilst in custody.
10.	The psychiatric report also reviewed the appellant's early life. He had been constantly bullied at school due to learning difficulties. The personality change following the road traffic accident when he was aged 10 was described, the fact that he was statemented as having special educational needs was mentioned, but it was said there was no evidence of behavioural difficulties. He had seen a psychiatrist when aged 12 to 13, and suffered a significant episode of depression in 1999. The psychiatrist concluded that the appellant bitterly regretted and was ashamed of his actions. IQ tests revealed him as having borderline mental impairment. He had a clear learning disability, poor social skills and low self-esteem. He did not suffer from a recognised psychiatric disorder, but the psychiatrist described him as “immature, socially unskilled and suggestible”.
11.	On his behalf, Mr Mintz submits that the sentence of seven years was manifestly excessive because it failed to give due allowance for the appellant's youth, his confession and his guilty plea. He makes the point that the appellant was only 18 years old when the offence was committed; that he did not merely enter an early guilty plea but he confessed promptly in interview. He acknowledges that the offence was a grave and serious one, but in essence his submission is that it is one that is not fairly categorised as being at the worst end of the spectrum of these cases, and the learned judge must have taken that as his starting point in order to arrive at a sentence of seven years upon such a relatively young person following a guilty plea.
12.	We consider that there is force in those submissions. When the maximum penalty for causing death by dangerous driving was doubled from five to ten years this Court revisited the guidelines in R v Boswell. Lord Taylor CJ said:
“In the very worst cases, if contested, sentences will be in the higher range of those now permitted by Parliament.” 
13.	While this was a bad case, and there were indeed aggravating features as identified by the judge, it could not properly be described as among “the very worst cases”. It is of no comfort to Mrs Briscoe and her sons, but it remains the fact that there were not multiple victims, nor was the appellant under the influence of drink or drugs. The case was not contested. The appellant was entitled to full credit for his plea of guilty at the earliest opportunity, preceded as it had been by a confession in interview. A further mitigating factor, which was not specifically referred to by the judge in his sentencing remarks, is the appellant's youth - 18 years old at the time of the offence, and his immaturity and intellectual limitations. The death of this much loved husband and father is the tragic consequence of an unintelligent, immature young man showing off to his friends.
14.	Taking all of these factors together the sentence of seven years gave insufficient discount for the early plea of guilty. In all the circumstances the proper sentence to reflect the mitigating factors that we have mentioned is one of five years. The appeal succeeds to the extent that the sentence of seven years is reduced to one of five years. The disqualification period is also reduced to five years.