No. 2009/01006/A8
Neutral Citation Number: [2009] EWCA Crim 1004
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Thursday  30  April  2009
B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  LLOYD  JONES
and
MR  JUSTICE  WYN  WILLIAMS
 - - - - - - - - - - - - - - -

ATTORNEY GENERAL'S REFERENCE No. 18 of 2008

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

- v -

THOMAS  DUFFIELD
- - - - - - - - - - - - - - -

Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4A
Telephone No: 020 404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -

Mr J Laidlaw QC appeared on behalf of the Attorney General

Miss M Baker QC appeared on behalf of the Offender
- - - - - - - - - - - - - - -
J U D G M E N T
Thursday  30  April  2009

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

2.  The offender is Thomas Duffield.  He is 20 years of age.  He was born in November 1988.  He is a young man of hitherto positive good character.

3.  On 10 December 2008, at the Crown Court at Lincoln, before His Honour Judge Milmo QC, the offender pleaded guilty to causing death by dangerous driving.  A written basis of plea was advanced on his behalf.  It is important to the outcome of this application to note that that basis of plea was agreed by the prosecution.  Sentencing was adjourned pending the preparation of reports.  The offender was disqualified from driving in the interim.  On 2 February 2009 sentence was passed and amended under the slip rule on 25 February 2009 to twelve months' detention in a young offender institution.

4.  The facts of this case can be taken shortly.  On the afternoon of 30 August 2007 the offender, who was then aged 18 years and 9 months, finished work and visited his girlfriend.  He left her house at about 5.30pm to go for a run.  He said that he would return to see her later.

5.  At approximately 8.15pm he left his home intending to drive to her house in his father's car.  He had been permitted to drive it and was licensed to do so since April.  He had been driving for just over one year.  

6.  Analysis of the offender's mobile phone and all the other telephone evidence established that just before he set off on the journey he used his mobile phone to send a message to his girlfriend telling her that he was on his way.  Thirty seconds later, by which time his journey had started, he received a message from her in reply.  Thirty-three seconds after that he sent her another message, using 13 characters for the purpose.  That was the end of the texting.  It was conceded on his behalf, and rightly so, that he must have received her message and composed and sent his to her while he was driving.  The second message from him was timed at 20:16:34.  The fatal collision occurred about two to two-and-a-half minutes later.

7.  The route to his girlfriend's home took the offender through the village of Scothern.  As he drove through the village it is important again to note that another quite independent motorist observed that at that time the offender was driving carefully "like an elderly driver", and keeping to the speed limit.

8.  The collision occurred on a straight, flat stretch of a minor country road leading out of the village to the A46.  This section of road consists of a single carriageway bound by grass and hedgerows on either side.  It is subject to a speed limit of 60mph.  The offender drove along that road within the speed limit.  The front of his vehicle collided with the rear of a bicycle being ridden by Leigh Dolby in the same direction.  The force of the impact smashed the bicycle and caused fatal injuries to Mr Dolby.

9.  Mr Dolby was 54 years old when he died.  He was a married man with a devoted family, including children and grandchildren.  He was a keen cyclist.  On this evening he was testing his bicycle lights in preparation for a charity cycle ride in which he was due to take part on the following Sunday.  He was dressed in appropriate clothing: white ankle socks, silver cycling shoes with reflective strips, and a metallic helmet.  His bicycle had appropriate lights which were illuminated.  At the time of the collision the weather was fine and the road surface was dry.  Sunset was at about 7.57pm.  It was beginning to become dark.  There were no street lights in this section of the road.  The offender told the police that his headlights were on, as were those of other motorists at that time.  He told the police that the collision had occurred shortly after he had passed a car coming in the opposite direction.

10.  The offender's car was examined, as was Mr Dolby's bicycle.  Both were found to be in good working order.

11.  It is clear that the deceased would have been visible to the offender for a period of approximately 6 seconds before the point of impact although, as the judge observed, that had to be imprecise.  The significant feature was that the guilty plea was accepted on the basis that the offender failed to concentrate on the road ahead.  He did not accept that his earlier use of the mobile telephone was a causal factor in the fatal accident.  That fact was agreed by the prosecution.

12.  After the collision the offender left his vehicle.  He rang the emergency services.  As other motorists stopped, he began to carry out such heart compressions on the victim as he could before a local doctor took over.  When the offender was asked what had happened, he explained that he had not seen the cyclist.  The police quickly attended the scene.  The offender was breathalysed.  The result was negative.  He passed a preliminary impairment test.  He said to the police in terms what he had said to others at the scene, that he had not seen the victim before the collision.  He said that he had trained as a lifeguard and that before he had begun chest compressions on the victim he had carried out initial life checks.  He handed over his mobile phone to the police.  He was not arrested at the scene.

13.  On 3 September 2007 he took part in a voluntary interview under caution.  He said that he had been driving with his lights on.  He had not seen the cyclist in the road ahead.  He denied using his mobile phone at or just prior to the collision.  

14.  At a subsequent interview he admitted that he had sent a text message to his girlfriend while sitting in his stationary car before setting out on his journey.  He accepted that he had read the text message from his girlfriend and composed and sent his second message while he was driving along the road.

15.  There was a good deal of material before the court, much of it summarised in the pre-sentence report, which showed that the offender was studying Computer Forensics at the University of Sheffield, where he had embarked on a degree course.  When he was not attending university, at the time he appeared before Judge Milmo, he was working at a special residential school for children who suffer from autism and severe behavioural challenges.  The author of the pre-sentence report noted that the offender had demonstrated nothing but genuine remorse and an appropriately serious-minded, focused attitude towards the punishment that he knew he faced.  The offender had also achieved considerable success in his sporting endeavours.  There was a large volume of references attesting to the positive aspects of his character. 

16.  In his sentencing remarks Judge Milmo examined the facts of this case in meticulous detail.  It is unnecessary for us to read out what he said.  He addressed the positive character not only of the offender, but the positive character of the deceased and his charitable work.  The judge was satisfied that the deceased had been riding a well-maintained and properly lit bicycle and had been wearing appropriate clothing.  This dreadful accident had nothing whatever to do with the deceased; he had no responsibility for it.  The fault was entirely that of the offender.  He should have seen someone who was there on a bicycle.  He was totally to blame for what had happened.

17.  The judge considered the consequences of the acceptance of the basis of plea by the prosecution.  On the facts contained therein the texting had no direct causative effect on this accident.  

18.  As part of the material before us we have considered the victim impact statement of the deceased's widow.  We are fully aware of the terrible loss that the offender's bad driving has caused to her, to his ageing parents, and indeed to his children and grandchildren.  

19.  The Solicitor General points to the lack of concentration by the offender on the road ahead.  It was that lack of concentration that led to Mr Dolby's death.  However, in relation to the use of the mobile phone and the sending of texts, we must have regard to the agreed basis of plea about the lack of causative effect on the accident of the fact that at an earlier stage the offender had been using the phone.

20.  It is to the offender's credit that, immediately after the accident, rather than running away in order to avoid responsibility for his involvement, he sought to assist the victim.  Although his plea of guilty to the offence came late in the day, he pleaded guilty as soon as the Crown abandoned the contention that the accident should be attributed to the use of the phone.  He admitted that his lack of attention on the road amounted to dangerous driving and that that had caused the death of Mr Dolby.

21.  The offender is a young man of hitherto positive good character.  The author of the pre-sentence report records his genuine remorse.  He is, in truth, a very promising young man.

22.  Following the sentence imposed by the judge, the offender was notified of his release date.  That date would enable him to resume his studies at university.  His place at university will be kept open until the beginning of October of this year.  After he had been given his release date he was made aware of the fact that this application would be made.

23.  We have examined the way in which Judge Milmo reflected on this case.  He had, as we have, to abide by the way in which the prosecution put the case.  He said that a sentence of 18 months' detention would have been the appropriate sentence if the case had not proceeded as a guilty plea.  In the result he rightly reduced the sentence to allow for the fact of the guilty plea.

24.  Having considered all of the serious features of this case, as well as the matters in mitigation, we have come to the conclusion that this can be seen as a merciful sentence; but it was a sentence which, in our judgment, making all allowances for aggravating and mitigating factors, was within the range of sentence which it was appropriate for the judge to impose in all the circumstances.  Consequently, we shall refuse the Solicitor General's application.