Judgment: approved by the Court for handing down
(subject to editorial corrections) 
Delivered:	28.06.2001

Ref:    	CARC3460

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

THE QUEEN 

v

ANTHONY MICHAEL GEORGE ARMSTRONG

_____ 

CARSWELL LCJ

	This is an application for leave to appeal against sentences imposed on the applicant by the Recorder of Londonderry, His Honour Judge Burgess, on 24 October 2000 at Londonderry Crown Court.  The applicant was charged with a number of serious road traffic offences, the gravest of which was dangerous driving causing death.  The judge sentenced him to seven years’ imprisonment on the last mentioned charge, with lesser sentences on four other counts, all concurrent, and a fine of £500.00 on the charge of failing to report an accident.  He also disqualified the applicant from driving for the period of ten years.  Leave to appeal was refused by the single judge and the applicant now seeks leave from this court.
	On Friday 22 October 1999 the applicant, a full-time corporal in the Royal Irish Regiment, attended a regimental dinner at Shackleton Barracks, Ballykelly.  The exact amount which he had to drink during the evening was not established, but it is clear from the manner of his driving that it was seriously in excess of the level at which he was fit to drive.  He left the barracks somewhere after 3 am, driving his car, although transport had to his knowledge been provided to take the diners home.  
	At about 3.50 am Mr WR Craig was driving on the main road from Londonderry to Limavady near the entrance to the Du Pont factory when he encountered the applicant’s car, which was being driven in the opposite direction.  It kept veering right across the road into the path of Mr Craig’s car, which forced Mr Craig off the carriageway on to the hard shoulder.  This episode formed the foundation for a separate charge of dangerous driving. 
	The applicant proceeded along the road a short distance to a point approaching the Maydown roundabout.  He swerved from one side of the road to the other, with his headlights on full beam, into the path of an oncoming car driven by Mr Clive Connolly.  His car came into head-on collision with Mr Connolly’s car, which was overturned by the force of the impact.  Some of the passengers were trapped inside until freed by police and emergency services personnel who came to the scene.  All five occupants of Mr Connolly’s car sustained injuries, and one passenger Ryan O’Kane died from his injuries later that morning.    
	The applicant left the scene of the accident and obtained a lift home without informing anyone that he intended to do so, leaving his car, which had crashed into the ditch and overturned.  Police officers went to his house and found him in bed.  He got up and dressed, giving the appearance to the officers of being drunk.  He was arrested and taken to Strand Road police station in Londonderry.  An authorised officer attempted to obtain a sample of breath from him, but the applicant failed to produce a sample.  He claimed at that time that he had taken a drink after arriving home, though he retracted this later in interview.  
	When interviewed the applicant stated that he thought that he had fallen asleep at the wheel and gone off the road and that he was unaware that any other vehicle was involved.  He left the scene because he had panicked at the situation he was in and the risk to his job.  He claimed that during the evening he had consumed only a modest quantity of alcoholic liquor, but eventually admitted to two pints of beer, two glasses of wine and a glass of port.
	 The applicant, who is aged 34 years, has no previous convictions.  He served as a full-time member of the Ulster Defence Regiment and the Royal Irish Regiment successively from 1988 until the commission of this offence.  He had been promoted to lance-corporal and then corporal and was in charge of administrative work in the Regimental Administrative Office.  His superior officers gave him highly favourable references and one gave evidence on his behalf.  They expressed the view that the offence was out of character and emphasised the regret and remorse felt by the applicant.  He has lost his employment and his planned career as a result of the offence and his marriage has broken up.
	The pre-sentence report states that the applicant expressed what appeared to be very profound remorse and regret to the probation officer.  The latter accepted that the accident occurred basically because of fatigue on the applicant’s part, combined with the intake of alcohol, but this conclusion on his part is not easy to reconcile with the facts contained in the committal statements.  He regarded it as a completely isolated and uncharacteristic offence on the applicant’s part.  For that reason he assessed him as extremely unlikely to reoffend and did not regard him as an appropriate candidate for probation supervision.
	The judge imposed the following sentences:
Count 1, dangerous driving causing death, seven years’ imprisonment;
Counts 2 and 3, dangerous driving causing grievous bodily injury, two years on each;
Count 4, dangerous driving, eighteen months;
Count 6, failing to provide a specimen of breath, three months;
Count 7, failing to report an accident, £500.00 fine.
All sentences were concurrent.
	 The judge in his sentencing remarks discussed the facts of the case at some length and came to the conclusion that the applicant’s consumption of alcohol had taken him well over the statutory limit and that he should have been aware of that before he got into the car to drive home.  He said that he found it difficult, if not impossible to accept the applicant’s assertion that he considered that he had left the road because he had probably fallen asleep at the wheel and rejected that supposition as the cause of the accident.  He then set out the aggravating and mitigating features of the case which he took into account.  He imposed the sentences which we have set out with the object of punishing the applicant and deterring others from driving motor vehicles under the influence of alcohol.  He stated finally that he found no factual foundation in the pre-sentence report for making a custody probation order.
The grounds of appeal which were argued before us may be summarised as follows:
•	The judge drew an unjustified distinction between dangerous driving causing death and dangerous driving causing grievous bodily injury;
•	he must have started at too high a figure on the scale;
•	insufficient credit was given for the plea of guilty;
•	insufficient credit was given for the personal circumstances of the applicant;
•	the fine of £500 was an unjustified method of dealing with the charge of failing to report.
Counsel for the applicant did not pursue the issue of the length of disqualification, which had been raised in the written grounds of appeal.
	We have unfortunately had to deal with a succession of cases involving deaths and injuries caused by dangerous and careless driving, frequently exacerbated by the effects of the consumption of alcohol, and the principles to be applied have been fairly clearly defined.  In R v Mullan [1998] NI 58 at 64 MacDermott LJ pointed out that the formulation “causing death or grievous bodily injury” has been the standard formulation in this jurisdiction since 1955, whereas in England the equivalent statute refers only to causing death.  He went on:
“We have no doubt that the local reference to grievous bodily injury as well as death is both rational and sensible.  The offence is aimed at really bad driving whether described as dangerous or reckless and the culpability of that driving can rarely be judged simply by regarding the fact that serious injury rather than death is the consequence of the dangerous driving.  This is a logical approach because the borderline between serious injury and death is often a fine one – some people survive appalling injury others succumb to a comparatively minor injury.  As Lord Taylor CJ said in A-G’s Ref (Nos 24 and 45 of 1994) (1995) 16 Cr App R (S) 583 at 586: ‘[E]ssentially we have to look at cases in the light of the offender’s criminality.’

Thus it appears to us that it cannot be argued that ‘causing death’ is the major offence and ‘causing grievous bodily injury’ is the minor offence and that sentencing should reflect such a distinction.  Understandably, and rightly, Mr Gogarty did not seek to argue along such lines – if Parliament had intended that such a distinction should be drawn it would have created two distinct offences with different penalties attaching to each.”

The judge in the present case imposed a sentence of seven years on Count 1, causing death by dangerous driving, contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995.  He imposed two years on Counts 2 and 3, each of which was a charge of causing grievous bodily injury by dangerous driving, contrary to the same provision.  Prima facie this is contrary to principle, although it may be explained by the judge’s focussing on the first charge as the one which attracted the substantive sentence.
	In sentencing the applicant to seven years’ imprisonment on a plea of guilty the judge must have placed this case at or very close to the top of the scale of ten years prescribed for offences against Article 9 of the 1995 Order, for the sentence must represent one which on a contest would have been nine or ten years.  We can only repeat the observation of MacDermott LJ in R v Mullan [1998] NIJB 93, a case brought under Article 14(1)(b) of the 1995 Order, causing death by driving without due care and attention when having excess alcohol in his blood, an offence equated by the courts with those charged under Article 9.  He said at page 101:
“We must recognise that there will be cases where more alcohol was consumed: there will be more horrific cases involving more than one death: there may be cases where the driver was racing or seeking to avoid apprehension: there will be cases in which there is evidence of a persistent course of bad driving.”

Bad as this case was, we must take into account the possibility of worse ones.  We consider that a starting-point at or approaching the maximum on a contest would not be justified in the present case.
	The applicant pleaded guilty on arraignment, the first opportunity open to him.  His remorse has been accepted as genuine and he had a clear driving record.  The effects on his life and career have been very considerable.  All these are factors which must weigh heavily in his favour, and which go some way to counterbalance the aggravating features on which the judge laid some weight.  We have nevertheless to bear in mind the remark of Lord Taylor CJ in Attorney General’s Reference (No 49 of 1994) (Brown) (1995) 16 Cr App R (S) 837 at 841:
“ … personal elements of mitigation and matters such as acute guilt feelings and depression of a temporary nature are not matters which should deflect the court from passing a sentence which is appropriate for the gravity of the case.”

	In Attorney General’s Reference (No 1 of 1998) [1998] NI 232 we reviewed the level of sentencing in a number of previous cases of comparable driving offences, while emphasising that minute comparison with other cases is of limited assistance.  We are satisfied that the sentence on Count 1 is out of line with the general pattern of sentences in comparable cases, and the judge must either have started at too high a point or made insufficient allowance for the mitigating factors, or both.  We do not wish to be too prescriptive about the point at which he should have started or the amount of allowance which should be made for mitigating factors, for we appreciate that it is a matter of fine, almost intuitive, judgment for a sentencing judge and that the process should not be too mechanical.  The important feature is that the final sentence should be just and fair to the offender as well as recognising the important public considerations of marking the seriousness of the offence and acting as a deterrent to others.  Having carried out this exercise ourselves, we consider that the appropriate sentence on Count 1 would be five years.  We agree with the judge’s conclusion that there is no material on which to make a custody probation order.  Although there is some justification for equating the sentences on Counts 2 and 3 with that imposed on Count 1, we shall leave them undisturbed.
	We consider that there is substance in the submission that it was not necessary to impose a substantial fine on Count 7 in addition to the penalties on the other counts.  A fine is appropriate as an alternative to a prison sentence, but where, as here, the offences all arise out of the same incident and the judge has correctly made the prison sentences concurrent, we regard it as preferable to impose a concurrent sentence on the charge of failing to report, as the applicant’s action in that respect has been taken into account in assessing the overall seriousness of the case.  We shall substitute a sentence of three months on Count 7, concurrent with the other sentences.
We shall therefore grant leave to appeal, allow the appeal and vary the sentences on Counts 1 and 7 in the manner which we have indicated.  We affirm the other sentences, including the disqualification from driving. 

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

THE QUEEN 

v

ANTHONY MICHAEL GEORGE ARMSTRONG

_____ 

JUDGMENT 

OF

CARSWELL LCJ

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