Neutral Citation Number: [2006] EWCA Crim 3186

Case No: 2006/00996/A6 (1)
 2006/03222/A1(2)
2006/04158/A5(3)
2006/04616/A3(4)
2006/04964/A1(5)
2006/02453/C5(6)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT EXETER (1)
HIS HONOUR JUDGE GRIGGS
ON APPEAL FROM THE CROWN COURT AT STAFFORD (2)
HIS HONOUR JUDGE MAXWELL
ON APPEAL FROM THE CROWN COURT AT READING(3)
HIS HONOUR JUDGE MCINTYRE
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL(4)
HIS HONOUR JUDGE GLOBE
ON APPEAL FROM THE CROWN COURT AT HEREFORD(5)
HIS HONOUR JUDGE MATTHEWS 
ON APPEAL FROM MILITARY COURTS CENTRE CATTERICK (6)
JUDGE ADVOCATE CAMP
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/12/2006
Before :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE FORBES
and
MR JUSTICE ROYCE
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Between :

	R		
	- v -		
	Richardson (1)

Counsel for the appellant R Camden Pratt QC
Counsel for the prosecution A Blake

R
-v-
Sheppard (2)

Counsel for the appellant A Molloy
Counsel for the prosecution N Williams

R
-v-
Abery (3)

Counsel for the appellant P Du Feu
Counsel for the prosecution A Blake

R
-v-
Little (4)

Counsel for the appellant A Loveridge

R 
-v-
Poel (5)

Counsel for the appellant S. Mooney

R
-v-
Robertson (6)

Counsel for the appellant N Burn
Counsel for the prosecution DJ Richards

Nicholas Hilliard on behalf of the Attorney General

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Hearing dates :  20th November 2006
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Approved Judgment

President of the Queen's Bench Division : 
1.	As they raised common problems arising from the provisions of  s285 of the Criminal Justice Act 2003 (the 2003 Act) which increased penalties for driving related offences, these appeals and applications for leave to appeal against sentence were listed together.
2.	A narrative account of the development of the relevant legislative provisions governing the offences of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs is unnecessary.  They are described by Lord Taylor CJ in Attorney General’s References Nos 14 and 24 of 1993 [1994] 15 CAR (S) 640 and by Lord Woolf CJ in R v Cooksley [2004] 1CAR (S) 1.  Before 27th February 2004 the maximum sentence for aggravated vehicle taking which involved an accident causing death was five years’ imprisonment, and for causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs it was ten years’ imprisonment.  Thereafter the maximum sentence for each offence was raised to fourteen years’ imprisonment.  In addition the offences are “specified” violent offences within schedule 15 of the 2003 Act, and the increase in the maximum sentence now means that they are also “serious” offences for the purposes of sections 224-229 of the 2003 Act.  Therefore when these  provisions came into effect in April 2005 the offences fell within the ambit of orders of imprisonment for public protection.
3.	The issue to be addressed in the present cases is the impact of the increased maximum sentences on the guidance offered to sentencers in Cooksley itself.
4.	Statutory changes in sentencing levels are constant.  In recent years, maximum sentences have been increased (for example, drug related offences) or reduced (for example, theft).  In general, changes like these provide clear indications to sentencing courts of the seriousness with which the criminal conduct addressed by the changes is viewed by contemporary society.   In our parliamentary democracy, sentencing courts should not and do not ignore the results of the  legislative process,  and as a matter of constitutional principle, reflecting the careful balance between the separation of powers and judicial independence,  and an appropriate interface between the judiciary and the legislature, judges are required to take such legislative changes into account when deciding the appropriate sentence in each individual case, or where guidance is being offered to sentencing courts, in the formulation of the guidance.
5.	In the present appeals the main argument between Mr Nicholas Hilliard on behalf of the Attorney General and Mr Camden Pratt QC on behalf of Richardson, (whose argument was adopted on behalf of the remaining appellants), was whether the increases effected by section 285 of the 2003 Act should normally lead to increased sentences throughout the entire range of the offences covered by the increased maximum, or whether  increases should be directed at cases of the greatest culpability, which have caused the greatest harm.  The second area addressed by counsel required us to reflect on the  relationship between causing death by dangerous driving and causing death by careless driving when under the influence of drink.    To date they have been treated, in effect, as if they were virtually identical.
6.	 The Crown’s contention on what we have described as the main argument is simple enough.  The increase in the maximum sentence was intended to reflect the broad view of Parliament that sentencing courts should approach these offences with greater severity than before.  That would produce a greater effect in the more rather than the less serious cases, but nevertheless would have some impact throughout the range of sentences.  Mr Hilliard did not suggest that there should be a mathematical calculation which, by reference to the increase in the maximum from ten years to fourteen years, should produce a 40% increase in sentence all round, or a re-appraisal of sentencing guidelines to achieve the same effect.
7.	Mr Camden Pratt pointed out that the advice of the Sentencing Advisory Panel in February 2003 was based on “an unduly large gap between the maximum of two years for dangerous driving (which may have resulted in an extremely serious injury to one or more victims) and that of ten years for an offence in which the same standard of driving has, by chance, resulted in death.”  In its advice the Panel welcomed the proposed five year increase in the maximum sentence for the basic offence of dangerous driving, but was concerned about the proposed increase to fourteen years for causing death by dangerous driving because this focused attention on the fatal outcome of the offence, and disrupted the balance between the culpability of the driver and the consequences of his actions.  This “tension” was identified as the “key problem”, and the Panel’s view was that the offender’s culpability should be “the dominant component in the sentencing exercise”.  Mr Camden Pratt then submitted that the court in Cooksley was perfectly well aware both of the advice of the Panel, and indeed the then pending legislation.  The difficulty with this argument is that notwithstanding the views of the Panel, the legislation, as eventually enacted, did not adopt the views expressed by the Panel, and Cooksley itself was concerned to offer guidance which reflected  the sentencing arrangements in force when it was decided.
8.	Mr Camden Pratt was however able to deploy a rather more formidable argument when he pointed out, rightly, that for present purposes at any rate, the maximum offence for dangerous driving was left at two years.  The fact that the maximum penalty for culpable bad driving was unchanged demonstrated that the increased maximum sentence where death resulted was directed at the consequences of the bad driving, in particular, where multiple deaths occurred.  There should be no “creeping” disproportion in relation to the level of culpability.  Therefore the logical conclusion was that the increase was directed at cases where the worst consequences had occurred.  
9.	Mr Camden Pratt pointed out that decisions of this court where the problem had been addressed were all related to cases at the most serious levels of culpability and harm, or both. Therefore, they provided no clear guidance about the proper approach to cases at lower levels of culpability. In essence, he contended that the effect of the legislation was to remove the buffer or constraint at what may be described as the worst end of the scale.  
10.	An example of such a case is Noble [2003] 1 CAR (S) 312.  Noble was convicted of six offences of causing death by dangerous driving, arising out of a single incident.  He spent the afternoon drinking with friends, and admitted to having drunk twelve pints of lager, one pint of mixed lager and cider and two Bacardi Breezers.  He had participated in a “motorised pub crawl”.  He drove at high speed, and eventually, because of speed, lost control of his vehicle.  It struck a stone wall on the opposite side of the carriageway, and then continued down the wrong side of the road, until it toppled over on to its side and struck an oncoming vehicle.  Three passengers in Noble’s car were killed.  Three people travelling in the car with which he collided were also killed.  The appellant ran away.  When arrested, he asserted that one of his dead passengers had been driving.  He agreed that he had been drinking all afternoon, and that he would have been drunk.  Eventually he broke down and admitted that he had been the driver.  However, at trial, he contested his guilt.  He was sentenced to a total of fifteen years’ imprisonment and disqualified from driving for life.  The fifteen year sentence was constructed of consecutive sentences.  In accordance with principle, the Court of Appeal concluded that as all the offences arose out of a single incident, consecutive sentences were inappropriate.  Accordingly the then maximum sentence of ten years’ imprisonment was substituted.  It was in the view of the court unrealistic “to imagine a worse case”.  Without the advantage of a guilty plea, a dreadful case of this kind might very well attract the new maximum sentence.      
11.	We have examined the authorities drawn to our attention by counsel.  These were Afzal [2005] EWCA Crim 384; Martin [2005] CAR (S) 99; Paton [2005] EWCA Crim 2922; Gray [2006] 1 CAR (S) 21; May [2006] 1 CAR (S) 29; Evans [2006] 2 CAR (S) 9; Tye [2006] EWCA Crim 112; Attorney General’s Reference No 1 of 2006 [2006] 2 CAR (S) 75; Revell [2006] EWCA Crim 676; Attorney General’s Reference No 10 of 2006 [2006] RTR 29; Attorney General’s Reference No 32 of 2006 [2006] EWCA Crim 1500,    Halsey [2006] 1CAR (S) 39, and Buckland [2006] EWCA Crim 2516. In other words, in a very short time indeed, this court has reflected on the impact of the increase in the maximum sentence as it affected individual sentencing decisions without, as far as we can see, conclusively deciding the argument currently under consideration.  This underlines the urgent necessity for reassessing the guidelines in Cooksley.    In the context of a potential “guideline” case we gratefully acknowledge the assistance provided  by these references to a number of individual decisions.   
12.	We were also asked to consider a number of other authorities, including Thirumaran [2004] 2 CAR (S) 33 and Attorney General’s Reference No 58 of 2000 (Wynne) [2001] 2CAR (S) 107, and indeed various counsel for different applicants drew our attention to yet further sentencing decisions of the same vintage. Their research also revealed the report of the Department of Transport Report on the Review of road traffic penalties in December 2000.  We suggest however that any decisions on this subject prior to Cooksley are of no more than historic interest, and  should emphasise, yet again, that as a matter of general approach, unless considering broad guidance,  this court is not usually assisted by the citation of “authorities” which, in reality, are no more than fact specific examples of individual decisions, and in particular, by their continued citation after this court has already addressed the broad principles in a “guideline” case, or the Sentencing Guidelines Council has provided a “definitive” guideline under s170 of the 2003 Act.
13.	We shall avoid an anxious parade of knowledgeable citation of judicial observations from within these authorities.  Consistently with our own analysis, the principle to be derived from them is that the primary object of the increase in the maximum sentence was to address cases of the most serious gravity, so as to permit the sentence to be greater than before, and in an appropriate case to be as long as or longer than the previous maximum.  However, even in such cases it was not intended that the increase in sentence should reflect the consequences of the increase from ten years to fourteen years in a strictly mathematical proportion.  It has long been recognised that mathematics does not provide the appropriate answer to a sentencing decision.  That said, appropriate proportionality between the huge variety of offences which come within the ambit of these crimes leads to the conclusion that if the level of sentence in cases of the utmost gravity is significantly increased (as it should be) there should be some corresponding increase in sentences immediately below this level of gravity, continuing down the scale to the cases where there are no aggravating features at all.  In adopting this approach, we are following earlier guidance given by this court in Attorney General’s References 14 and 24 of 1993, where the court addressed the doubling in the maximum sentence from five to ten years’ imprisonment by significantly increasing the higher, but not the lower starting points.  
14.	We also believe that some proportion needs to be maintained between the levels of sentences for these offences, and the sentences which are thought appropriate for other offences of crimes of violence resulting in death, such as, for example, the sentences for manslaughter following a deliberate, but single violent blow, and manslaughter arising from gross negligence, which is not identical to but certainly not far removed from negligent conduct which falls “far below” expected standards, which is, of course, the criminal ingredient for dangerous driving.
15.	At the lowest levels of seriousness, we have also reminded ourselves that the 2003 Act itself requires the sentencer only to impose a custodial sentence if such a sentence is necessary, and if it is, for the sentence to be no longer than necessary to fulfil the statutory purposes of sentencing laid down in s142.  For these reasons, at these levels there will continue to be cases in which the broad guidance in Cooksley will remain appropriate, and we should add, exceptional situations where even shorter sentences, or non custodial sentences, may be appropriate.  Like the court in Cooksley we can see no advantage in identifying such exceptional situations, which by definition will only arise very rarely.    
16.	We can return to the guidance offered in Cooksley in the context of s 285 of the 2003 Act, and the remaining provisions in the Act which bear directly on sentencing.  It would probably be useful to the understanding of our conclusions to quote in full the passages at paragraph 15 of the judgment in Cooksley which identify without exhaustively defining the most obvious aggravating and mitigating factors.
“The Panel sets out a series of aggravating and mitigating factors. These are more extensive than those that were set out in Boswell. We adopt them but they stress that should not be regarded as an exhaustive statement of the factors. In addition it is important to appreciate that the significance of the factors can differ. There can be cases with three or more aggravating factors, which are not as serious as a case providing a bad example of one factor. They are as follows: 
Aggravating Factors 
"Highly culpable standard of driving at time of offence
(a) the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a 'motorised pub crawl'
(b) greatly excessive speed; racing; competitive driving against another vehicle; 'showing off'
(c) disregard of warnings from fellow passengers
(d) a prolonged, persistent and deliberate course of very bad driving
(e) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking)
(f) driving while the driver's attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held)
(g) driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills
(h) driving when knowingly deprived of adequate sleep or rest
(i) driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns
Driving habitually below acceptable standard
(j) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle
(k) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving
Outcome of offence
(l) more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable)
(m) serious injury to one or more victims, in addition to the death(s)
Irresponsible behaviour at time of offence
(n) behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape
(o) causing death in the course of dangerous driving in an attempt to avoid detection or apprehension
(p) offence committed while the offender was on bail."
Mitigating Factors 
"(a) a good driving record;
(b) the absence of previous convictions;
(c) a timely plea of guilty;
(d) genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);
(e) the offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and
(f) the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving."
17.	With these features in mind, we have reflected whether the starting point identified in the form of a range or band of sentences and by the court in Cooksley should be amended so as to identify a single specific starting point for each range, followed by the range itself.  Cooksley itself provided a range of sentence in each category which was then described as a starting point.  Given the multiple circumstances covered by these offences, and the numerous even if incomplete potential aggravating features,  all arising from the single activity of driving a car, it seems to us unwise to be  over prescriptive in the identification of a single starting point  which would normally be appropriate for the different categories of culpability and seriousness.  Cases at the top of any particular level may, with a very minor difference or two (for example, in a case where speed is an aggravating feature, the difference of a few miles an hour on the particular road in the particular conditions) may very well merge into or come very close to the next higher level; similarly, with cases at the lower end of a particular scale.  Accordingly, we shall continue to express the guidance  provided for the assistance of sentencing judges as it was expressed in Cooksley, with the appropriate ranges directed to the four bands of culpability identified in Cooksley itself.  
18.	Paragraph 32 of Cooksley represents the final analysis of the different levels of culpability analysed in paragraphs 21-31 of the judgment.
“We have set out four starting points; no aggravating circumstances - 12 to 18 months; intermediate culpability – 2 to 3 years; higher culpability - 4 or 5 years and most serious culpability - 6 years or over. We make clear that starting points only indicate where a person sentencing should start from when seeking to determine what should be the appropriate sentence. There is, however, a danger in relation to the higher starting points of the sentencer, if he is not careful, double accounting. The sentencer must be careful not to use the same aggravating factors to place the sentence in a higher category and then add to it because of the very same aggravating features.”
19.	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.   
For present purposes we have not considered sentencing guidelines in relation to criminal driving amounting to manslaughter (which does not arise in these cases) nor have we addressed ss224-229 of the 2003 Act, nor  disqualification periods.
Causing death by careless driving when under the influence of drink or drugs.
20.	Throughout this judgment when addressing the issue of impairment as a result of the consumption of alcohol, we are including impairment consequent on drug taking. 
21.	Cooksley decided that for sentencing purposes these cases need not be taken as a separate category.  The court accepted that when a fatality occurred when the driver was under the influence of drink, it was not necessary for his guilt of dangerous driving to be proved before the sentencing court was entitled to  take the full culpability of the driving into account without the necessity of proving that the defendant was guilty of dangerous driving.  Our attention was drawn to the current charging standards applied by the Crown Prosecution Service to driving offences. These are consistent with the guidance in Cooksley,  and indicate  that for sentencing purposes the two offences were to be regarded “on an equal basis”, and that where the driving itself was on the borderline between careless and dangerous driving, but the driver’s ability was impaired through alcohol, the appropriate offence would be causing death by careless driving when under the influence of drink.  Although, as we have said, this approach was entirely consistent with the guidance given in Cooksley, it is or will shortly become open to question. 
22.	We shall begin by forcefully emphasising that there must be no doubt and there should indeed now be very few people who still entertain the slightest doubt, that where death arises from a road traffic accident caused when the driver has voluntarily consumed excess alcohol, in culpability terms this is and should be equated with causing death by dangerous driving.  The consumption of alcohol is deliberate.  Everyone knows, or should know, that the consumption of even small quantities of alcohol undermines the ability of any driver to apply his full concentration to the road. Where the consumption is high, it is effectively extinguished.  Alcohol makes a driver personally unfit to drive, and the car of which he is in control becomes as dangerous with him at the wheel as if it were subject to a serious known, potentially fatal, mechanical defect.  Looking at the matter broadly, there is never any acceptable excuse for driving a vehicle when the ability to do so properly is impaired by alcohol or drugs.  That is the critical ingredient of this offence.  Its depressing feature is that it is often committed by men and women who are otherwise responsible drivers, of positive good character, who in the normal course of events would never contemplate committing any criminal offence.  After the accident their remorse is instantaneous and genuine.  Their own lives are scarred with the knowledge that they have killed another human being when, if they had been completely sober, the fatal accident would probably not have occurred.   
23.	The message, however is stark and unequivocal.  Driving under the influence of drink or drugs is a serious offence.  If there is a consequent road traffic accident in which death results, the consequences are catastrophic for the deceased and his or her family, and however excellent the character of the offender, and genuine his remorse, for all effective purposes, a custodial sentence is inevitable.  Despite powerful personal mitigation, that indeed was the outcome in each of the cases of causing death by careless driving under the influence of drink which are now before us.
24.	At the time when Cooksley was decided, the court did not, and could not have had in mind, the Road Safety Act 2006.  This creates two new offences.  The first, causing death by careless driving, without having consumed excess alcohol,  (maximum sentence, five years’ imprisonment) the second, causing death when the driver is unlicensed, disqualified or uninsured (maximum sentence, two years’ imprisonment.)  In this context the difference in culpability between dangerous driving and careless driving assumes critical importance.  The dangerous driver falls “far below” what would be expected of a competent and careful driver to whom it would be obvious that the driving in question is dangerous.  In summary, the standard of driving is very bad, and the driver himself should appreciate that it is.  By contrast careless driving involves a failure to exercise the degree of care and attention required of  drivers, and is an offence designed to address the daily cases which involve  
“….the kind of inattention or misjudgement to which the ordinarily careful motorist is occasionally subject without it necessarily involving any moral turpitude, although it causes inconvenience and annoyance to other users of the road”
(Lord Diplock in R v Lawrence [1982] AC 510 at 525.)
25.	Taken on its own, and wholly excluding any element of drink or drugs, careless driving is hugely less culpable than dangerous driving.  And the true level of culpability of the driving should always, as Cooksley, approving Locke [1995] 16 CAR (S) 795 demonstrates, be taken into account when sentence is determined.  This is elementary.
26.	The principle is enshrined in s 143(1) of the 2003 Act, which provides:
“In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause, or might foreseeably have caused.”
27.	The Sentencing Guidelines Council issued a definitive guideline under s 170 of the 2003 Act entitled “Overarching Principles: Seriousness”. Addressing s 143(1) of the 2003 Act it underlines that:
“Assessing the seriousness is a difficult task, particularly where there is an imbalance between culpability and harm:
•	Sometimes the harm that actually results is greater than the harm intended by the offender;
•	In other circumstances, the offender’s culpability may be at a higher level than the harm resulting from the offence.
Harm must always be judged in the light of culpability.  The precise level of culpability will be determined by such factors as motivation, whether the offence was planned or spontaneous or whether the offender was in a position of trust.”
28.	Four varying levels of criminal culpability were identified for the purpose of sentence, the first where the offender intended to cause the harm, the second where he was reckless where the harm was caused, the third where he knew of the specific risk of harm, although the harm was unintentional, and fourth, and finally, where he was negligent.  Careless driving on its own falls within the fourth, lowest category.  Depending on the facts, dangerous driving falls within the second or third categories; so does driving with excess alcohol.  
29.	As we have already emphasised, driving under the influence of alcohol or drugs, is itself culpable, and, depending on the quantity of alcohol, may be extremely culpable.  However, absent the consumption of alcohol, careless driving on its own almost always involves culpability at the lowest possible scale.  In one sense, every driver is careless when he makes a mistake.  Every driver, even the best, and most experienced, and normally careful, does so from time to time.  That does not mean that he has fallen “far below” the appropriate standard. The distinction between careless driving and careless driving under the influence of drink is that drink induced errors amounting to careless driving are culpable in a way which the same errors made by a sober driver are not.  We therefore suggest that when the Road Safety Act 2006 comes into force, it will no longer be appropriate for the difference between dangerous and careless driving to be elided.  Indeed it will shortly become critical to a fair and balanced sentencing process for the difference to be understood and acknowledged.  Finally we must record that these issues, and indeed the various difficult issues arising from driving offences which result in death will shortly be the subject of a fresh public consultation by the Sentencing Advisory Panel.  And this may produce further guidance from the Sentencing Guidelines Council.
30.	The maximum sentence for causing death by dangerous driving, or causing death having consumed excess alcohol is identical.  The natural implication is that they are equated in seriousness.   If the level of impairment is only just in excess of the permitted limit, and the driving is otherwise careless rather than dangerous in the sense outlined in this judgment, the consumption of alcohol provides the most significant aggravating element of the offence.  If there are no others,  it will normally fall within the category of offences of causing death by dangerous driving which lack any additional aggravating features.  As the consumption of alcohol increases, so does the relative culpability, and by the time the consumption is at or about double the legal limit, the case would  fall within the intermediate category.  At higher levels than this, in the vast majority of cases,  there is a correlation between amount of alcohol consumed and significantly reduced standards of driving. In the vast majority of these cases, some distinct elements of culpability in the driving itself, identified as aggravating features in Cooksley, are almost inevitable.  At these sorts of levels, the result will be dangerous driving of a kind which will take the case into the categories of higher culpability and then most serious culpability.  In short, we do not envisage many cases where the alcohol level reaches three times the permitted limit, and the driving itself will be no worse than careless driving.  However even if it were not dangerous in this sense, at these and higher levels the sentencing decision would normally fall within the two most serious categories of culpability.    
31.	We must expressly consider two matters of mitigation.  A timely plea of guilty was identified in Cooksley as a mitigating factor.  This issue has now been addressed in the definitive guideline issued by the Sentencing Guidelines Council in December 2004, “Reduction in sentence for a guilty plea”.  This guideline in its present form, or if amended in its amended form,  applies to the offences presently under consideration.  We therefore suggest that where there is a guilty plea, the sentencing judge should reach his preliminary conclusion as the appropriate sentence level before taking account of and applying the discount for the guilty plea.  Just as care must be taken to avoid double accounting of aggravating features, similar care needs to be taken against double accounting for mitigating features.      The second feature which struck us during the hearing of these cases is that it is plainly an aggravating feature of the offence that the defendant behaved irresponsibly at the time of the offence.  In our judgement, however, it is a specific mitigating feature, not expressly identified in the guideline, that the defendant behaved responsibly, and took positive action to assist at the scene.  It is not a mitigating feature that he merely waited or remained at the scene:  we have in mind direct action to assist the victim or victims of his driving.
The individual appeals and applications.
Jack Richardson
32.	Jack Richardson was born in October 1986.  He is a young man of good character, and  the subject of a number of glowing positive references.  
33.	On 23rd December 2005 in the at Exeter Crown Court, he pleaded guilty to causing death by careless diving when over the prescribed limit.  On 27th January 2006, before His Honour Judge Griggs, he was sentenced to three years detention in a Young Offender Institution.  He was also disqualified from driving for four years, and until he had passed an extended re-test.  
34.	He appeals against sentence with leave of the full court.
35.	The facts can be briefly summarised.  Mr and Mrs Hooper were staying at a hotel in Devon on 9th June 2005, and after dinner on a fine summer evening, they decided to take a stroll along the pavement of the north side of the old A38 road.
36.	They became aware of a car coming towards them.  It was a Peugeot 205 driven by the appellant.  As it reached a bend in the road, he lost control of the vehicle which left the road at the point where the couple were walking.  Mr Hooper was killed almost instantly.  Mrs Hooper sustained relatively minor physical injuries.  The car then somersaulted into an adjoining field.  
37.	The appellant was able to leave the car, and he returned to the scene, plainly very distressed, and immediately started to apologise to Mrs Hooper.  He admitted to witnesses at the scene that he had been drinking.  When the police arrived he immediately admitted his responsibility, and that he had been drinking.  He provided appropriate specimens, which showed that his alcohol level was just over twice the legal limit.  In interview he made full admissions, and accepted that he was aware that he was over the legal limit when he started driving his car.  He admitted that as he approached the point in the road where he lost control of his car, he was travelling at about 70 mph.
38.	There was conflicting evidence about speed.  The widow of the deceased estimated the speed of the car as it approached her as 100mph.  Another witness at the scene described the appellant’s admission that he had been driving at “around about 90”.  The applicable speed limit was 60mph, and at that speed there should have been no difficulty in negotiating the bend.  The Crown’s case was that the accident resulted from a combination of excessive speed linked with or resulting from the effect of alcohol.
39.	Consistently with his actions at the scene, and genuine remorse for the suffering he had inflicted on the family of the deceased, the appellant pleaded guilty at the earliest available opportunity.  According to the pre-sentence report there was nothing to suggest that he would re-offend.  A substantial and impressive body of character references was provided.  This positive material is confirmed by a report from the Prison Service.
40.	The trial judge identified the critical aggravating features of this case, speed and alcohol.  He also concluded that, following the increased maximum sentence for the offence, the Cooksley  guidelines should be treated as amended upwards.
41.	It is suggested that the judge’s approach to the facts of the case was wrong.  Speed was not an aggravating factor for the purposes of Cooksley.  Given the actual speed limit, it could not be described as “greatly excessive”, and the appellant was not racing or driving competitively.  The speed was indeed excessive, but not greatly so.  On the issue of alcohol, the judge may have disregarded the warning in Cooksley against double accounting.  The consumption of alcohol was a critical feature of the case, but it was the significant element of the offence, and therefore should not have been treated as “aggravating” the crime.
42.	In our judgment, the judge’s approach was right.  He had to examine all the circumstances, and form a broad assessment of the appellant’s culpability.  Both drink and speed contributed to this tragedy.  If the appellant had been driving a little more slowly, or had been much more experienced, or had consumed less alcohol, or none, the accident would not have happened.  If he had not consumed alcohol he would not have been driving too fast to control his vehicle.   We agree with the judge’s analysis.
43.	Like the judge, we are fully aware of the essential good quality of this young man, but on this occasion his lapse from the high standards which he set and still sets for himself, had catastrophic consequences.  The sentence imposed on him was not manifestly excessive. We shall not interfere.  The appeal is dismissed
Dionne Sheppard
44.	Dionne Sheppard was born on 9th June 1980.  She is a young woman of previous good character.  
45.	On 28th April 2006 at Stafford Crown Court the applicant pleaded guilty to causing death by careless driving when over the prescribed limit, and 9 June, His Honour Judge Maxwell sentenced her to three years imprisonment, and disqualified her from driving for five years and until she had taken an extended re-test.
46.	The application for leave to appeal against sentence was referred to the full court by the Registrar.  
47.	On 5th October 2005, in the evening, but while it was still daylight, and in good driving conditions, the deceased, then forty five years old and a keen cyclist, was cycling along the A449 in the direction of Stafford.  Coming up behind him, and driving in the same direction, there were four cars, the second of which was being driven by the applicant.  The driver of the first car noticed the cyclist riding ahead of her near to the kerb.  She indicated in good time her intention to overtake, and she did so, and then returned to her original position on the road.  Immediately behind her the applicant was driving a Vauxhall Astra, at about 50 mph, in the line of traffic.  When the car in front of her overtook the cyclist, the applicant failed to see him, and ran into him from behind.  The cyclist was thrown into the air, he landed on the bonnet of the applicant’s car, and then came to rest on the grass verge at the side of the road.  
48.	The car immediately behind the applicant noticed that she was driving it very close to the kerb on the near side, so close that if there had been yellow lines painted in the road, she would have been driving over them.  It was this particular feature of the applicant’s driving that caught her attention.  She herself had seen the car in front of the applicant signal to pull out, and then observed the cyclist through the windscreen of the applicant’s car.  She saw that the brake lights of the applicant’s car came on, and the car then seemed to jolt away from the kerb into the middle of the road.  
49.	After the collision, the applicant stopped her car immediately, and walked back to the position where the cyclist was lying.   She was clearly upset and distressed, and according to at least one witness, in a state of shock.  Within a short time, an ambulance and the police arrived.  The ambulance crew attended to the cyclist, and he was taken to hospital.  He subsequently died of his injuries.  
50.	A police officer smelled alcohol on the applicant’s breath.  The necessary procedure followed.  Her alcohol level was just over twice the legal limit.
51.	When first interviewed, the applicant explained that a car travelling in the opposite direction, had caused her to swerve, and so strike the cyclist.  Although there was indeed another vehicle travelling in the opposite direction, the Crown did not accept that the accident was consequent on her taking avoiding action.  The damage to the vehicles demonstrated that her car had struck the rear wheel of the cyclist with the nearside of her front bumper.  The collision was from the rear.  It was not a glancing blow.  In any event, the Crown relied on the evidence of the driver of the car immediately behind the applicant.
52.	The applicant was reinterviewed, and maintained her account that she had been caused to swerve by a vehicle travelling in the opposite direction.  She admitted that she had taken one glass of wine about an hour before the accident.  She also intimated that perhaps the kind man from a nearby cottage, who had offered her a cup of tea, may have put some alcohol into it.  That was investigated.  The cup of tea was sweetened, but not otherwise fortified. 
53.	In due course, she pleaded guilty.
54.	The pre-sentence report concluded that the applicant was genuinely remorseful, and devastated by what had happened.  There was only a low risk of her re-offending.  She suffered from post traumatic stress disorder, to which she had responded well.  Specialised psychological therapy was required.  Her difficulty in acknowledging that she was over the legal limit for driving was related to her feelings of guilt and worthlessness, rather than a conscious denial of the facts.  The report suggested a community order, with a condition for psychiatric treatment.
55.	There were a number of positive character references.  We have also read a letter from her partner, which emphasises the genuineness of the remorse and the profound sense of guilt suffered by the applicant.
56.	The judge’s analysis of this accident was straightforward.  The applicant had failed to see the cyclist when she should have done, and she had failed to keep a proper look out because she had not been concentrating.  The lack of concentration stemmed from the consumption of alcohol.
57.	The judge reflected on the decided cases, and the statutory increase in sentence.  Allowing for the severity of the impact on the applicant, the judge imposed the sentence of three years imprisonment.  
58.	It is submitted that the sentence was manifestly excessive, and that in his sentencing remarks the judge suggested that the length of sentence reflected not the culpability of the applicant, but the grievous loss suffered by the family of the deceased.  This criticism is unfounded.  The judge was extremely careful to balance the relevant considerations against each other, and it was not unreasonable, and certainly did not amount to a misdirection for him to reflect that from the point of view of the family of the deceased, the sentence would not “really do justice” to their “grievous loss”.  In truth, the judge carefully considered all the relevant features, including the severe impact of this tragedy on the applicant, herself a decent young woman, who crashed into a cyclist from behind, at something like 50mph, when she was over twice the legal limit for driving.  The sentence he imposed was not manifestly excessive or wrong in principle.  Accordingly the application is refused.
Lee Abery
59.	Lee Abery was born in September 1986.  He has five previous convictions for seven offences, one for being drunk and disorderly, but none for driving offences.
60.	On 15 June 2006 at Reading Crown Court he pleaded guilty to causing death by dangerous driving.  On 14 July, at the same court he pleaded guilty to driving with alcohol above the prescribed limit.  He was sentenced by His Honour Judge Macintyre to six years detention in a young offender institution, disqualified from driving for six years and until an extended retest had been taken.  No separate penalty was imposed for the summary offence, save for a concurrent period of disqualification.
61.	His application for leave to appeal against sentence was referred to the full court by the Registrar.
62.	On 3rd July 2005 the applicant was one of a group of friends living at the YMCA in Newbury who decided to go out drinking.  Two of them bought a substantial quantity of alcohol, and met up with another friend, and subsequently with the deceased.  A large amount of alcohol was loaded into the boot of the Ford Escort that one of them was driving.  The intention was to drive around until a convenient spot was found for a drinking session.  
63.	Initially the car was driven to Hungerford Common.  After that it moved to Donnington Castle in Newbury.  Over the next few hours alcohol was drunk and cannabis smoked.  Eventually it became cold.  The group returned to the car where they remained for some time.  
64.	The applicant asked if he could drive the car, but the owner said on several occasions that she did not want him to.  He said that he would be able to start the car anyway whether she gave him the keys or not, because he would “hot wire” it.  He pulled the cover off the ignition, so she handed over the keys to him, on the basis that she would only allow him to drive the car in the car park.
65.	The applicant had no licence and no insurance.  He drove out of the car park, with wheels spinning.  The passenger in the front seat was not herself a driver.  She estimated the speed at about 50mph.  There were three other passengers in the back of the Ford Escort.  
66.	At first the applicant drove relatively safely.  But then the Escort was overtaken by another car, and the applicant started to race after it.  The speed increased significantly.  By now the front passenger estimated the speed at possibly in the region of 90mph.  They were “flying” down the road.  All the passengers were uncomfortable about the speed, and shouted at the applicant to slow down.  Eventually he did, but as the car negotiated a nearside bend, he lost control of it.  It struck the offside bank, and overturned.  One of the passengers suffered fatal head injuries and died shortly afterwards.  
67.	The applicant left the car, and said “let’s go” to the others, who were still trapped upside down in it.  The front passenger, who suffered cracked ribs, and a fracture of the wrist as well as a damaged hand, told the applicant that she would not leave the scene.  In fairness to the applicant, he responded that he was not running away, but he was off to get help.  One of the other passengers was able to telephone the emergency services.  In the meantime, the applicant left the scene to a nearby house, and asked the owner to contact the emergency services, which he did.  The applicant was later heard to tell the emergency services that he had been driving and messing about, and he asked about the condition of his friends.  
68.	The applicant himself had suffered head injuries.  His condition deteriorated.  He was airlifted to hospital.  A blood sample was taken.  A back calculation showed that the appellant was just under twice the legally permitted level.  When interviewed, the applicant made no comment.
69.	The pre-sentence report indicated that the applicant accepted responsibility for the accident, and for the death of a very close friend, for which he expressed huge remorse.  Since the offence he had been diagnosed with depression, and medication was prescribed.  He appeared to the writer of the report to have matured significantly, and notwithstanding the frequency of his earlier offending, he appeared determined to break the pattern.  There was a medium/high risk of re-offending, but the likelihood of the kind of offending with which the court was immediately concerned was assessed at “low”.
70.	The judge concluded that this was a very serious offence.  The offender was unfit to drive, both because of the alcohol he had taken, and also because he was unqualified to do so anyway.  He had been warned not to drive.  He had ignored the warnings.  He drove far too quickly, for a time at any rate racing another car, or attempting to keep up with it.  In truth, these features of the case were, as the judge recognised, self evident.  The judge also took account of the fact that the deceased was a friend, and that the applicant was genuinely remorseful.  He acknowledged that the applicant had suffered some injuries himself, pointing out however that he might well have killed himself, and indeed other passengers in the car, one of whom suffered post traumatic stress disorder, and another of whom had physical injuries.  
71.	The sentence imposed by the judge meant that he assessed the case as one within the “most serious culpability” as described in Cooksley.  It is submitted that the sentence was manifestly excessive.  It was not in the category identified by the judge, and if it was, the sentence was still too high and failed to reflect the early guilty plea.
72.	It was also suggested that the warnings given by the fellow passengers should not have been treated as an aggravating feature of the case.  All the passengers had put themselves in the position of the applicant, at any rate in the sense of driving to a location, where they all drank, and took cannabis.  Someone was likely to drive back.  They had then all got into the car voluntarily, and the objections raised by the owner of the car to the applicant’s driving was said to have been not “particularly strong”.  There was, in any event, a danger of “double accounting”.  The judge may have used the aggravating features of the case, both to assess the level of culpability, and then treat the level as aggravated by the same features.  
73.	This is the kind of case in which the increased maximum sentence begins to bear significantly on the sentencing decision.  The driving was undoubtedly dangerous.  It was also prolonged, blatantly disregarding elementary consideration for others, by an unqualified, uninsured driver who had consumed alcohol and cannabis.  The sentence reflected the culpability of the applicant, and at the same time made due allowance for his remorse, and the guilty plea.  The application is refused.
Liam Little
74.	Liam Little was born in 1987.  He is a man of previous good character, and he was supported by several positive character witnesses.
75.	On 20th July 2006 in Liverpool Crown Court before the Recorder, His Honour Judge Globe QC, he pleaded guilty to causing death by careless driving when over the prescribed limit.  On 14th August he was sentenced to four years and nine months detention in a Young Offender Institution, and disqualified from driving for five years and until he passed an extended test.  No separate penalty was imposed for driving without a licence and without insurance.
76.	The application for leave to appeal against sentence was referred to the full court by the Registrar.
77.	On 6th November 2005, at about 5.00 am, a car returning to Liverpool along the Formby bye-pass negotiated a roundabout, when the driver, Miss Wang, and her passenger, observed that a BMW 316 car had left the road and struck a tree.  When they examined the scene, they observed that the front of the car was extensively damaged, and noticed someone slumped in the front passenger seat.  As they approached the car the driver’s door was open, and the defendant emerged from the driver’s side of the car, in the view of one of those present, having been kneeling across trying to get the injured passenger out of the vehicle.  
78.	The accident occurred when the BMW 316 crashed head on into a tree after it had failed to negotiate a well lit roundabout on the Formby bye-pass, of which ample warning notices were given.  Conditions at the time were wet, and the BMW’s wiper blades and headlights were in use.  The BMW was driven by this applicant.  He had no driving licence, and was driving without insurance.  The car belonged to the father of one of the applicant’s friends.  He was the injured passenger.
79.	At the scene, when the applicant was approached and asked what had happened, he said that he did not know, and sought to give the impression that he had nothing to do with the car.  He said he had just come from “there”, pointing in the direction of Formby, and asserted that a fellow had just run off, pointing across a nearby field.  He gave the impression that he was clearly drunk, unsteady on his feet and repeatedly asserting that he was not the driver, and that it was not his car.  He said that he had just walked there and found the car, and that some bloke had run off.  As it had been raining for some time, this seemed rather surprising, and certainly did not fool the witness, Miss Wang.
80.	Miss Wang went to assist the passenger, who was still breathing, but in obvious pain.  Her friend summoned the emergency services by mobile telephone.  Miss Wang told the applicant to help the man she described as “his mate”, and it was obvious to her from the way in which he spoke to the passenger that he knew him.  The passenger gradually began to lose consciousness.  It was at this stage that the applicant said that he thought he should call an ambulance.  The applicant reached for his mobile telephone, and appeared to make a call to the emergency services.  In fact he did not do so: at any rate, none was recorded beyond the message that had already been received from Miss Wang’s friend.
81.	The emergency services arrived.  The passenger had to be cut out from the car.  He was transferred to hospital.  Unfortunately his injuries proved fatal.
82.	The police spoke to the applicant.  He insisted that he had just been passing by, maintaining that he had walked from the public house some considerable distance away.  Although it was pointed out that this was inconsistent with the dry condition of his clothes, he insisted that he had come across the scene of the accident.  He denied driving the vehicle.  He said he had been with his girlfriend.  He was asked if he knew the passenger.  He said that he had never seen him.  He was asked if he would assist with the details of the passenger in the car, and responded, “I am only 18 and he is 50, why should I be with him?”.  In view of his insistence that someone had run off into a nearby field, the area was searched by the police helicopter and police tracker dogs.  No trace of anyone was found in the vicinity.  Accordingly the applicant was arrested.  
83.	He was taken to the police station.  On testing for alcohol, his sample revealed that he was a little over twice the legal limit.  When interviewed he said that he had been in the rear seat of the car, and that someone else had been driving.  This story did not withstand scientific evidence.  This strongly suggested that he had been the driver, but still he insisted that he had been the passenger.  The other element of the investigation into the crash produced a calculation that at the moment of impact with the tree, the BMW was travelling at not less than 42mph, and that the loss of control occurred when the applicant failed to negotiate a bend, and the wheels of the car clipped the roundabout.
84.	The pre-sentence report indicated that the applicant had been invited by the deceased to drive, so he had done so, without thinking about the potential consequences.  He said that he could not describe the details, but that he must have lost control of the car as he went into the roundabout.  He was a member of a close knit family, of good character, and there was no evidence that he presented a risk to the public.  He accepted that he had been foolish, and his remorse appeared to be genuine.  
85.	In very carefully considered sentencing remarks, the Recorder outlined a number of aggravating features of the offence.  The applicant had driven too fast in wet conditions, while over the drink/drive limit.  He had never held a driving licence, and so was uninsured as well as unlicensed.  For a considerable period after the offence he had denied that he was the driver at the time of the accident, and contined repeatedly to lie in subsequent interviews.  A trial date was set as he had continued to deny the offence, and the first indication of a guilty plea did not come until very late.  Some credit would be given, but the history behind the plea had to be borne in mind.  The judge reflected on the provisions of section 285 of the 2005 Act.  He considered the mitigating features, but concluded that only a custodial sentence would be appropriate.   
86.	 The application is based on the propositions that the judge failed to give sufficient credit for the guilty plea, the applicant’s youth and previous good character. It was also suggested that the case should properly be reviewed as one of dangerous driving, at the lower end of the scale, and close to careless driving.  We disagree.  In view of the constant stream of lies about his involvement in the incident, we cannot reach any clear conclusions on the precise circumstances in which he came to be driving.   We shall stick to the known facts.  This unlicensed driver must have driven at a considerable, and excessive speed in the conditions.  At the risk of repetition, the speed at the point of impact with the tree not less than 42mph.  The driving was not at the lowest end of dangerous driving.  The discount for the guilty plea was as generous as it could have been.  The applicant’s conduct at the scene was discreditable, his concern plainly being for his own position, rather than relief of the pain and injury suffered by his passenger.  His subsequent behaviour continued to reflect his own selfish interests, equally indifferent to the impact on the family of the deceased, whose son was his friend.  
87.	Despite the applicant’s youth, and his previous good character, the sentence was not manifestly excessive.  The application is therefore refused.
Karole Poel
88.	Karole Poel was born in 1958.  He is a national of Belgium, and he has spent his entire working life as a driver.  He is a man of good character, and given his working life, it is relevant that he is without previous convictions for motoring offences.  
89.	On 18 July 2006 at Hereford Crown Court the applicant pleaded guilty on re-arraignment to causing death by dangerous driving.  On 8 September he was sentenced to three years imprisonment and disqualified from driving for three years and until he had taken an extended re-test.
90.	The application for leave to appeal against sentence has been referred to the full court by the Registrar.
91.	On 4th August 2005 this professional driver was at the wheel of an articulated lorry travelling along the M50 motorway.  The weather was fine and dry.  Conditions were good.  He was familiar with the road, which he had driven on many previous occasions, and also familiar with the vehicle he was driving.  Shortly before the accident, the radio in the cab had been replaced, and he was not used to it.  This led to the subsequent collision.
92.	Roadworks, which had been in place for some time, were taking place along the M50.  There were a number of signs to bring the traffic down to slower speeds from 50mph, then to 40mph and eventually to 30mph.  A queue of traffic had built up as the applicant approached the road works.  He was travelling at about 53mph, but his concentration on the traffic ahead was lower than it should have been because he was looking at the new radio in order to retune it.  Although he saw the signs to slow down the traffic late, and reduced his speed to about 42mph, he struck the rear of the white van which was in front of him.  This in turn collided with the car ahead, which itself then collided with the car in front.  The drivers of those two vehicles were not injured, save for one driver sustaining some whiplash injuries, but the driver of the van, whose vehicle did not have a seatbelt or an airbag fitted, was flung forward by the impact.  His head collided with the windscreen.  He suffered fatal injuries.  
93.	The applicant himself was also badly injured in the accident.  He suffered three hairline fractures to his skull and a crushed leg.  His facial injuries required over 100 stitches.
94.	The emergency services were summoned.  While he was being attended to by paramedics, the applicant made clear in his comments that he had been retuning his radio at the time of the crash, but he had no subsequent recollection of the accident.  This lack of memory was entirely consistent with his head injuries.
95.	The pre-sentence report confirmed that the applicant was deeply remorseful, and empathetic with the likely impact of the death of the deceased on his family.   It was pointed out that he had an excellent driving record for the past 27 years during which he had been driving throughout Europe.  It was also accepted that the remorse was genuine, and the court was told, this was reinforced by the personal letter he had written to the deceased’s family.
96.	The judge examined the evidence, and concluded that it was not possible to say for how long the applicant had been distracted, but his avoidable inattention must have lasted a number of seconds at least.  He was driving an articulated lorry and trailer.  Such a vehicle could do terrible damage if it became involved in an accident, and the driver’s duty was to be vigilant at all times.  His driving fell within the higher culpability bracket because he deliberately decided to tune the radio, and so take his eyes off the road.  Full credit was given for his frankness at the scene, which made it possible for the cause of the accident to be discovered, and for his subsequent guilty plea.  The judge also noted that he was a man with an exemplary work and driving record who was genuinely remorseful.  The judge would have taken a starting point of four and a half years imprisonment, which was reduced to three years to allow for matters in mitigation.
97.	The submissions is that the starting point was too high.  It over-emphasised the one aggravating feature of the case, and failed sufficiently to give credit for what was described as extensive mitigation.  It was also pointed out that because the applicant was a national of Belgium, he would not be able to take advantage of the schemes for early release which were available for appropriate offenders whose homes were in England.  We doubt whether this last consideration has any immediate relevance.
98.	In our judgment, however, there is some force in the remaining submissions.  The driving was indeed dangerous.  It resulted from inattention, which although more than momentary, was not prolonged.  The applicant’s culpability was that he allowed himself to be distracted for as long as he did.  There was no other element of fault.  Such a vastly experienced professional driver should have appreciated that full attention must be given to every aspect of driving, throughout the journey, but it is plain from his outstanding record, that the applicant has been a careful driver throughout his working life.   
99.	This case lacks the aggravating features which apply to so many cases of this kind.  There was real personal mitigation.  In our judgment the starting point taken by the judge was too high.  This case was at the intermediate level of culpability, with a single aggravating feature.  Given the personal mitigation, our conclusion is that the sentence should be reduced from three years to two years imprisonment.
100.	The applicant attended throughout the hearing of the application.  In those circumstances, we shall grant leave to appeal against sentence, and treat the hearing of the application as the hearing of the appeal.  The appeal will be allowed.  A sentence of two years imprisonment will be substituted for the sentence of three years imprisonment.
Karen Robertson
101.	Karen Robertson was born in 1972.  She is the wife of and was living with her husband, who was serving in the army in Germany.  She was therefore subject to military jurisdiction for offences committed while living with her husband in Germany.  
102.	On 6th March 2006 at a general Court Martial held at the Military Courts Centre Catterick, (Judge Advocate Camp) she pleaded guilty to committing a civil offence, causing death by careless driving while under the influence of drink.  
103.	She was sentenced to two and a half years imprisonment.  Leave to appeal against sentence was granted by the single judge.
104.	On 8th July 2005 the applicant, with others, spent part of the evening at two bars within the barracks near Bergen.  There was no direct evidence about the amount of alcohol she drank, but by 23.00 she was described as very loud and excitable.  The function ended at that time, and afterwards she and others visited the Irish Bar in Bergen itself.  She remained until 03.00 that morning.  While there she met the deceased, Corporal Payne, a member of the same regiment as the applicant’s husband.  In the Irish Bar, one member of the bar staff recalled that she had been served with at least three Bacardi and Cokes.  She and Corporal Payne were among the last to leave when the Irish Bar shut.  They then went to another bar, but that, too, was closing, and they decided to go and find something to eat.  
105.	This involved a car journey.  The applicant returned to her married quarters on foot and collected the keys to her car.  Corporal Payne sat in the front passenger seat.  She began the journey from Bergen towards Saltau.  
106.	At some time between 04.00 and 04.30, when it was starting to get light, the applicant lost control of her vehicle, and struck a tree.  The vehicle came to a stop in an adjacent field.  Corporal Payne sustained multiple injuries, and died shortly afterwards.
107.	A German couple, one of whom spoke fluent English, were the first people on the scene.  Mrs Bussmman found the applicant in the field.  She was clearly distressed.  The applicant explained that she could not hold the car.  It felt as though there was ice on the road.  She was also expressing great concern about her passenger.  Eventually she was taken to hospital.  A sample of her blood was taken.  At the time of the test (09.38) the blood alcohol level reading was 67mg of alcohol in 100ml of blood.  An appropriate back calculation revealed that at the time of the accident, her blood alcohol was between 117-192mg in 100ml of blood, with an average of 157mg of alcohol.  The average was virtually twice the legal limit.  
108.	The scene was examined.  The road was wet.  There were clear warning signs of a danger of skidding, posted not very far from the point where the collision occurred.  The signs were presumably meant to warn against the possible effect of grooves present in the road surface.  It was estimated that the applicant was travelling between 100 and 110kph when the vehicle left the road. The speed limit was 100kph.  The applicant lost control of the car because of her speed, the curvature of the road, and the grooves in the road surface, which contributed to the car’s loss of stability.
109.	When interviewed the applicant described losing control of the vehicle as the back end of the car “swung out”.  She was asked if she thought she was below the relevant legal limit.  She responded that it was “a case of caught up in the moment, go and get something to eat…. The thought process wasn’t there that I had ever had one…I would not have said that I was drunk and incapable”.  She also suggested that her speed was 70kph.
110.	When she was re-interviewed, and the results of the analysis of her blood was put to her, she denied that alcohol played any part in what happened.  She attributed the loss of control to the conditions of the road surface, when her vehicle had “aquaplaned”.  She suggested that the accident would have happened even if she had been sober.
111.	The applicant has three previous court appearances for speeding, one in 1995, in this country, and two in Germany in November 2003 and June 2004.  There are no other convictions.
112.	The applicant and her husband have a six year old child. She has accompanied her husband on posting abroad.  Following the accident, the family were obliged to return to England.
113.	The applicant expressed great remorse for what happened, bitterly regretting the death of someone she described as a “nice man” and “good friend”, and the impact of his death on his family and friends.  She was said to have been “deeply traumatised” by the results of her actions.  The risk of future offending was assessed as low.
114.	The sentencing reasons identify the excess alcohol as the first aggravating feature of the case.  As the judge advocate explained, approaching the matter on the most favourable basis to the applicant, she was one and a quarter times the limit.  However she had deliberately returned to her home to get the keys for her car, and did so knowing that she had already consumed alcohol.  This was identified as a “conscious and deliberate risk”.  The judge advocate recognised speed as a “factor”, but accepted that the evidence did not suggest that it was “grossly excessive”.  He also recognised that the loss of control was contributed to by the surface of the road, and the grooves which were found in it.  The sentencing bracket was identified as the “higher culpability area”.
115.	The judge advocate then acknowledged the genuine and obvious remorse, and allowed a full discount for the plea of guilty.  The previous fixed penalties for speeding were said not to have played any “significant part” in the decision.  On the whole, the applicant was said to have a good driving record.  The court was concerned about the impact of sentence on the applicant’s child.  The final consideration was that the applicant’s driving was careless rather than dangerous.
116.	The application for leave to appeal proceeds on the basis that in all the circumstances outlined in this judgment, the sentence was manifestly excessive.  In particular, the grooves or ruts in the road contributed significantly to the accident, and these were wholly outside the applicant’s control.  Moreover, her speed at the time was not significantly in excess of the speed limit.  The difficulty with these submissions is that the road was self-evidently wet, and there were ample warning signs of the risk of skidding.  In the end, the applicant was driving too quickly for the road conditions, and ignored the warning signs, probably because her ability properly to concentrate was impaired by alcohol.  In our judgment the sentence imposed at the court martial was not manifestly excessive.  Accordingly the appeal will be dismissed.
117.	A separate further point was addressed in the papers before us.  In essence, it came to the short proposition that if the applicant had been a German citizen, driving in Germany, the maximum sentence which would have been imposed on her for this offence would have been five years imprisonment.  Accordingly, the argument proceeded, the court martial should at any rate have considered that additional feature of the sentencing regime.  However, as examination showed, the maximum sentence of five years imprisonment applied to cases where the driver’s ability was not impaired through drink.  We simply do not know what sentence the civilian courts in Germany might have thought appropriate for this particular offence.  In any event, however, the applicant was subject to the jurisdiction of the court martial. It was not contended otherwise on her behalf.  We should also note that in the end, a jurisdictional point was not pursued before us.