Daniels [2019] EWCA Crim 296
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In Attorney General’s Reference R v Branden Marc Daniels [2019] EWCA Crim 296, the Court of Appeal (Lord Burnett of Maldon LCJ, Cheema-Grubb and Martin Spencer JJ) refused the Solicitor General’s application for leave to refer as unduly lenient a sentence imposed for causing death by dangerous driving and related offences committed by a highly immature and vulnerable young offender.
Mr Daniels pleaded guilty at the plea and trial preparation hearing to causing death by dangerous driving (count 1) and causing serious injury by dangerous driving (counts 2 and 3), contrary to sections 1 and 1A of the Road Traffic Act 1988. On 6 February 2019, he was sentenced to six years and six months’ detention in a young offender institution on count 1 and concurrent terms of four years’ detention on each of counts 2 and 3, together with a driving disqualification of nine years and three months until an extended test was passed.
On 29 July 2018 at about 8.20 pm, Mr Daniels, then aged 20, was driving a stolen Audi A3 bearing false number plates with four passengers in a residential area approximately five miles north of Birmingham city centre. They were engaged in joy riding. Police officers, having noticed the vehicle’s suspicious registration plate, attempted to stop the car. Mr Daniels instead accelerated away. A chase ensued over about one and a quarter miles. Though the area had a 30mph speed limit, the Audi reached speeds of 80mph. At about 70mph it was driven straight over the junction between Kingsland Road and Wandsworth Road, colliding with a Volkswagen Golf driven by Mr Connor Donnelly, who had Ms Sarah Giles as his front-seat passenger. Ms Giles, aged 20, was killed instantly. Mr Donnelly suffered life-threatening injury to his aorta requiring emergency surgery and a stent, multiple rib fractures, lacerations to his spleen and kidney, and was sedated in a coma for three days. He described himself in his victim impact statement as a broken man who had lost his partner and whose health was permanently impaired. One of the passengers in the Audi, Mr Dalton Banks, suffered a broken hip, punctured lungs, multiple lacerations, a brain haemorrhage requiring emergency surgery including removal of part of his skull, and remained in hospital for three months; he was left with memory problems, slurred speech and behavioural changes. Members of Ms Giles’ family provided deeply moving victim impact statements describing the loss of a much loved, vivacious and hard-working young woman. Following the collision Mr Daniels fled from the scene but was chased and caught by local residents. He had no driving licence and was uninsured.
When interviewed under caution on 30 and 31 July 2018, Mr Daniels falsely claimed that the four passengers had offered him a lift, that they had told him to drive, that he had tried to refuse but relented in the face of threats of violence, and that they told him not to stop when the police chase began. Video footage recovered from his mobile phone showed him and others in different vehicles being driven dangerously at very high speeds on earlier occasions. Footage taken an hour before the collision showed Mr Daniels driving the Audi, demonstrating that his account of having recently joined the vehicle and being pressured into driving it was untrue. Mr Daniels had a previous conviction from 31 October 2017 for driving otherwise than in accordance with a licence and without insurance, and a caution from 2013 for theft from a vehicle.
The judge applied the Sentencing Guidelines Council’s definitive guideline for causing death by driving (July 2008), which identifies three levels of culpability. It was common ground that the case fell within level 1, reserved for the most serious offences involving a deliberate decision to ignore or flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others. Level 1 has a starting point of eight years’ custody and a range of seven to fourteen years. The judge identified numerous aggravating features set out in the guideline: Mr Daniels clearly enjoyed joy riding, as evidenced by other incidents recorded on his phone; the car was stolen and being driven with false plates; the absence of a licence and insurance; an attempt to escape the police; very high speeds in the time leading up to the collision; and an attempt to run away after the crash. The judge referred to previous driving convictions, Mr Daniels’ youth, and the pre-sentence report and psychological report before him, as well as testimonials describing Mr Daniels as ordinarily a kind and considerate person. The judge accepted that Mr Daniels was of low intelligence, immature, vulnerable and easily led, and that he demonstrated genuine remorse. The judge referred to R v Robert Anthony Brown [2018] EWCA Crim 1775, [2019] 1 Cr App R(S) 10, for the proposition that offences of causing serious injury by dangerous driving should be reflected in concurrent sentences but with an increase in the sentence for the offence involving death. The judge noted that the driving in Brown was worse and resulted in more than one death, and that the offender in that case was aged 53 and had 57 convictions for 209 offences. The judge stated that the proper starting point for someone more mature and less vulnerable than Mr Daniels would be twelve years’ detention. He reduced that to ten years as his starting point because of Mr Daniels’ youth and vulnerability, and reduced it further to six years and six months’ detention because of the guilty plea, giving full credit for that plea.
The Solicitor General applied for leave to refer the sentence on three grounds: first, that the judge moved too far from his starting point on account of Mr Daniels’ youth, immaturity and vulnerability; secondly, that the sentence failed to reflect public concern about joy riding committed by young men; and thirdly, that the judge should not have given full discount for the guilty plea but should only have discounted by one-quarter.
Evidence of Mr Daniels’ immaturity and vulnerability was substantial. He had struggled at school from the outset. At age 11 he was the subject of a Statement of Special Educational Needs and was diagnosed with Attention Deficit Hyperactivity Disorder. He was bullied at school to such an extent that in 2014 his family decided to relocate him to a different area. A week before the planned move, Mr Daniels’ father died suddenly, which had a deep effect on the family and on Mr Daniels, who began to suffer from depression from which he continued to suffer. He left school at 16 with no qualifications, proceeded to no further education, and never had any consistent work, his activities being limited to occasional casual labouring. Shortly before this offending he was provided with shared accommodation with a support worker on site. A family friend stated that Mr Daniels had difficulties, his mind being younger than his years, and that he could find himself easily led. When interviewed by police Mr Daniels had his mother present as an appropriate adult, suggesting concerns about his ability to be interviewed in the ordinary way as an adult despite being 20 years of age. A psychological report prepared by Dr Tim Hull dated 8 October 2018 noted that when Mr Daniels received the Statement of Special Educational Needs he was assessed as performing at four or five years younger than his chronological age. Dr Hull’s attempts to assess Mr Daniels’ intellectual functioning were only partially successful; the raw IQ score placed him in the lowest one per cent of the population, though Dr Hull considered the real measure a little higher. Dr Hull noted difficulty in understanding questions apart from difficulties during police interviews, and concluded that all evidence suggested Mr Daniels was a highly vulnerable individual who, in the presence or absence of specific disabilities, had been bullied throughout his life and suffered from difficulties with his mental health. He was not taking prescribed medication for depression, likely to exacerbate his mental health problems. The pre-sentence report spoke of genuine remorse, noting that Mr Daniels spoke only of the impact of his offending on others rather than on him. Its author had the same experience as Dr Hull regarding Mr Daniels’ difficulty in understanding questions, and concluded he had relatively low maturity for his age and was immature for his age. The report recommended the court take into account his learning issues, immaturity and remorse.
The Court of Appeal, giving judgment, held that Mr Emlyn Jones on behalf of the Solicitor General took no issue with the judge’s approach in fixing the notional starting point for a mature adult before any discount for guilty plea at twelve years’ custody. The court found no doubt that twelve years was a proper starting point, though there could have been no complaint if it had been a little lower, particularly having regard to genuine remorse displayed by the offender. The principal ground of attack was that the judge reduced his starting point by more than was appropriate to take account of youth, vulnerability and immaturity. The court was unable to accept that the judge erred in reducing his starting point by the degree he did. The court referred to R v Clarke and Others [2018] EWCA Crim 185 at paragraph 5 for the proposition that reaching 18 does not present a cliff edge for sentencing purposes, that full maturity and all attributes of adulthood are not magically conferred on young people on their eighteenth birthdays, and that experience reflected in scientific research is that young people continue to mature, albeit at different rates, for some time beyond their eighteenth birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision even if an offender has passed his or her eighteenth birthday. The court cited the guideline for sentencing children and young people at paragraph 1.5, explaining that one reason why offenders aged 18 and under receive sentences reduced by half and more is because their culpability is lower on account of their lack of development and maturity, and that children and young people are not fully developed and have not attained full maturity, which can impact on their decision-making and risk-taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether conduct has been affected by inexperience, emotional volatility or negative influences. When considering age, emotional and developmental age is of at least equal importance to chronological age, if not greater. The court emphasised that the absence of a cliff edge is an important factor when sentencing those over 18 years of age but who are not fully mature. The guideline for sentencing children and young people does not apply in such cases, but the factors quoted from paragraph 1.5 can weigh in considering the appropriate sentence in cases involving young adults who are not fully mature. The court considered that there will be cases, of which this was one, where material is available to the sentencing court which speaks about the maturity and developmental reality of the offender in question. The court considered that the reduction given by the judge in this case on the basis of that evidence was an appropriate reduction.
The court rejected the argument that public concern surrounding offences of death by dangerous and careless driving, committed often by young men engaged in joy riding, should result in courts being less willing to take full account of youth, immaturity and vulnerability when passing sentence. The court held that this feature did not justify a departure from ordinary sentencing practice and principle, namely, to take account of matters such as youth, vulnerability and maturity when passing sentence. On the third ground, the court agreed that the judge was generous in giving the full discount as opposed to a discount of 25 per cent, which would have represented a direct application of the guideline given the time at which the guilty plea was entered. At interviews Mr Daniels provided an explanation suggesting he was at all times under intolerable pressure, but materials found on his phone demonstrated that to be untrue. He was given the opportunity to indicate his plea at the magistrates’ court, on his account suggesting he would run a defence of duress. Even on his own initial account, the defence of duress would have stood little prospect of success, and his account was untrue. At some point between first appearance in the magistrates’ court and the plea and trial preparation hearing, Mr Daniels determined to accept his responsibility. The relevant guideline suggests that ordinarily the reduction for guilty pleas at that hearing should be 25 per cent, with an exception where the court accepts that further information, assistance or advice is necessary before indicating a plea. The court rejected the submission that it was reasonable to await the psychological report before expecting Mr Daniels to enter a plea, as the problem with the defence as putatively advanced in interview was that it was based at least in part on a series of lies. Whilst the court accepted that the judge was generous in according the offender the full discount, the court’s task was not to unpick the judge’s reasoning but to ask the broader question whether the sentence imposed was outside the range of sentence which a judge could have imposed on the basis of all the information available surrounding the offences and the offender. It is only if the sentence is outside that range, and by a margin, that it can be described as unduly lenient.
The court held that in a sentencing exercise judges have to take account of two broad considerations: first, the harm caused by the offending; and secondly, the culpability. The harm in this case was at the highest level. The court emphasised that at no point did it lose sight of the harm that was caused by this offending and its dreadful impact on so many people. The court concluded that it was not possible to consider that the sentence imposed in this case was unduly lenient. The twelve-year starting point was not the minimum available to the judge; it might have been less. Despite the harm caused, when one takes account of the offender’s genuine remorse, his youth, vulnerability and immaturity, and then considers his guilty pleas, the resulting sentence of six years and six months’ detention in a young offender institution could not be stigmatised as unduly lenient. Properly recognising that the court’s task was to consider the outcome in the round, and in particular taking account of the feature that the judge’s starting point could have been less, the court refused leave to the Solicitor General to make the reference.
In short, the Court of Appeal refused leave to refer a sentence for causing death by dangerous driving committed by a young, immature and vulnerable offender, holding that a two-year reduction from a twelve-year starting point to reflect those personal circumstances was within the proper range and that the resulting sentence of six years and six months’ detention could not be described as unduly lenient.