Daniel Ian Butler [2019] EWCA Crim 869
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R v Daniel Ian Butler [2019] EWCA Crim 869 was a renewed application for leave to appeal against sentence heard by the Court of Appeal comprising Lord Justice Fulford, Mr Justice Sweeney and Mr Justice Dingemans, which was dismissed.
Mr Butler, aged 28, had pleaded guilty at the Crown Court at Maidstone before Her Honour Judge Williams on 25 June 2018 to causing death by dangerous driving. The plea was treated as at the first opportunity and attracted a full one-third discount. On 28 September 2018 he was sentenced to eight years’ imprisonment, disqualified from driving for ten years and 269 days (comprising a discretionary period of seven years plus an extended period of four years less 96 days on remand) and until an extended driving test was passed.
On 20 August 2017 at approximately 3.00 pm Mr Butler was driving a white Ford Transit van on the A228 near Mereworth in Kent. His van collided head-on with a red Peugeot car driven by Mrs Suzanne McLachlan, who was aged 67. Mrs McLachlan was airlifted to hospital but suffered a cardiac arrest and died shortly afterwards. Prior to the fatal collision there had been four near misses attributable to Mr Butler’s driving. A witness so concerned by the manner of his driving called the police to report it. Mr Butler was seen swerving from lane to lane, veering left and hitting the kerb at a roundabout, then veering without reason into the second lane of the opposing carriageway, forcing a red car to brake and swerve. Witnesses behind him thought he must be drunk. A black Mini was forced to take evasive action to avoid a head-on collision, its driver shocked when the van did not veer back into the correct lane but instead moved even further onto the wrong side. Shortly before the fatal collision, in dry, sunny conditions with good visibility, the van suddenly swerved from the oncoming lane into Mrs McLachlan’s lane about three to four car lengths in front of her. There was no apparent reason for the swerve and although the van appeared to have time to return to the correct lane it did not do so. Mrs McLachlan had no opportunity to avoid the collision. The van struck her vehicle head-on whilst at least halfway onto the wrong side of the carriageway. Her car spun on impact and she was later freed by emergency services, flown to hospital and pronounced dead shortly after arrival.
Mr Butler told paramedics that the collision had suddenly happened and that he did not feel as if he was passing out beforehand. He provided a breath test showing a zero reading but became agitated and abusive when asked for a second sample and refused. He was arrested, cautioned and two mobile phones were seized. He was placed in an ambulance and promptly fell asleep. In hospital he again spent most of the time asleep. Upon being told that Mrs McLachlan had died he was arrested for causing death by dangerous driving and said he thought he had fallen asleep at the wheel and that when he looked up she was there. A blood sample revealed 22 micrograms of cocaine per litre when the legal limit is ten, 259 micrograms per litre of benzoylecgonine when the legal limit is 50, and 1000 micrograms per litre of amphetamine when the legal limit is 250. The level of amphetamine was in the toxic range associated with fatalities. The concentrations of cocaine and amphetamine suggested recent use, possibly within six to twelve hours of the sample being taken. Neither vehicle had any defects which could have contributed to the collision.
In interview on 22 August 2017 Mr Butler said he thought he had fallen asleep at the wheel but suggested he may have lost control due to a mechanical defect and denied having taken any drugs in the preceding days or hours, which was plainly untrue. Further investigation of his mobile phones showed constant use for the days and nights between 16 August and the time of the collision on 20 August. Data from a tracker fitted to the van showed excessive use out of working hours. Combining tracker and phone data indicated that the longest period of inactivity over the four days from 16 to 20 August had been two hours and 20 minutes, and on the day of the collision one hour and 28 minutes. In other words, over the four days leading up to the fatal collision Mr Butler had not slept for more than about two hours at any time. He made no comment in interview when confronted with those findings.
A victim personal statement from Mrs McLachlan’s sister, Elizabeth Sowdon, was read to the court. Mr Butler had appeared before the court on one previous occasion in 2011 for an offence of harassment, for which he received four months in a young offender institution suspended for 18 months. He also had three cautions including one for possessing a Class B drug in 2016. No pre-sentence report was prepared but a psychiatric report was before the court. It recorded that Mr Butler had been admitted to a psychiatric hospital between 28 September and 2 October 2017 following an overdose and stating that he hoped he would die. The discharge summary diagnosed mental and behavioural disorders due to the use of stimulants and recurrent depressive disorder. He had been using drugs since the age of 17 but considered the collision to have been a simple car accident and did not attribute it to his use of cocaine or amphetamine. He reported remorse but was reluctant to acknowledge his misuse of drugs in the lead-up to the offence. It was recorded that he did not suffer from a mental disorder warranting hospital admission, though his difficulties were long standing. He was prescribed anti-depressant medication and had been using amphetamine and cocaine habitually and frequently prior to imprisonment. At the material time he had been intoxicated with cocaine, a cocaine metabolite and amphetamine. The author recommended he access specialist drug treatment services and that the prison mental health authorities monitor his condition.
The judge in passing sentence rehearsed the facts and commented that Mr Butler had shown some remorse but lacked any insight into his offending. Mrs McLachlan had been a wonderful, inspirational person who had fought cancer and helped others diagnosed with cancer. She loved life and had many interests. She had been married to her husband for 40 years and was a much loved wife, mother, sister and friend. The pain and grief of her family would be enduring and no sentence could assuage that grief. The sentence did not put a value on Mrs McLachlan’s life and her loss was incalculable. The sentence would seem harsh to the applicant but not sufficient to the victim’s family, yet the court would do its best to achieve justice. Mr Butler had not set out that day to kill anyone but his driving was grossly irresponsible. It was a persistent, prolonged and deliberate course of very bad driving. He drove whilst under the influence of a large amount of drugs and whilst suffering from fatigue. He could have stopped when he first found himself drifting across the carriageway but had chosen not to do so. There had been a number of near misses before the fatal collision. He had flagrantly disregarded the rules of the road by driving in that condition and by the manner in which he had driven and had placed other road users in the greatest danger. His driving fell into level one, the most serious category of the relevant sentencing guideline. Level one had a starting point of eight years with a range of seven to 14 years. The case fell towards the higher end of the range because of the factors the court had listed. Had Mr Butler not pleaded guilty the sentence would have been 12 years’ imprisonment. The judge then imposed the sentence already stated, allowing 96 days’ credit against the period of disqualification for time spent in custody.
The sole ground of appeal was that the judge took too high a starting point and that in consequence the sentence imposed was manifestly excessive. On Mr Butler’s behalf, Mr Godfrey reminded the court of the terms of the guideline as to the criteria for a level one offence and the aggravating factors listed in relation to such offences and submitted that none were present in the case, contending that the sentence imposed was too high. The respondent in its notice submitted that the sentence was not manifestly excessive and that the exemplar of three characteristics of a level one offence as set out in the guideline are disjunctive and that the judge was entitled to consider them cumulatively as part of her assessment as to where in the sentencing range for level one this case fell.
In refusing leave the single judge observed that counsel argued that the starting point of 12 years was too high and contended that there was double counting because the factors leading to the case falling within level one were conjunctive not disjunctive and were then double counted as aggravating features. The single judge stated that the Crown was correct to point out that the factors leading to a level one categorisation are disjunctive not conjunctive, as shown by the bold capitalised words “AND/OR” at page ten of the guideline describing the features of a level one offence. This was not a standard level one case but a very bad level one case justifying an uplift from the eight-year starting point. The aggravating features were a prolonged course of driving, near misses, substantial impairment through drugs and self-induced fatigue. Any one of those features would have sufficed to put the offence into the level one category. The eight-year normal starting point is near the bottom of the range. The substantial uplift from eight to 12 years reflected the bad aggravating features but was still well within the range. The sentence was severe and close to or at the top of the range reasonably open to the sentencing judge but was not arguably manifestly excessive in light of those very serious aggravating features.
The Court of Appeal agreed. This was indeed a very bad level one case in which Mr Butler drove his van whilst in a condition which made him a fatal accident waiting to happen. In those circumstances the application was dismissed. The court added that it was precluded from correcting what was perceived to have been the judge’s error in crediting time spent on remand against the period of disqualification, given the clear principles expressed in R v Needham [2016] EWCA Crim 455. In any event, if credit had been appropriate it should have been given in relation to the discretionary element of the disqualification. In short, the renewed application was refused on the basis that this was a very serious level one case with multiple aggravating factors and the sentence imposed, though severe, was not manifestly excessive.