Dobson [2019] EWCA Crim 409

Regina v Conor Thomas Dobson [2019] EWCA Crim 409 concerned an appeal against sentence by a 24-year-old offender who pleaded guilty to manslaughter and burglary, was found dangerous, and was sentenced in the Crown Court at Lewes to an extended sentence of 18 years comprising a custodial term of 15 years and an extension period of 3 years, with a concurrent sentence of 45 months’ imprisonment for the burglary. The Court of Appeal reduced the custodial term to 12 years while upholding the finding of dangerousness and the extension period.

The co-accused, Mr McFadyen, had pleaded guilty to burglary, handling stolen goods and dangerous driving. On 10 November 2017 the appellant and Mr McFadyen travelled from London in a stolen Mercedes (the “London Mercedes”) to target a property at Goring Way, where they burgled the premises and stole keys to a Mercedes C63 valued at approximately £30,000, together with cash and other items. Police received an alert and located both vehicles at a petrol station, where the appellant was driving the C63 and Mr McFadyen was driving the London Mercedes. When police arrived, both vehicles drove out and turned towards Horsham. A high-speed pursuit ensued. Both Mercedes vehicles overtook other cars recklessly. Mr McFadyen lost control of the London Mercedes in a narrow country lane and crashed, whereupon he was apprehended whilst attempting to flee. The appellant continued driving the C63 and eventually rejoined the A24 travelling northbound. On the A24, north of the Broad Bridge Heath interchange west of Horsham, the C63 collided with a Ford Fiesta driven by Ms Rebecca Nevins, aged 70, who was completing a lawful lane change at approximately 57 miles per hour. Expert evidence established that the appellant had been travelling at an average speed of between 137 and 147 miles per hour at the time of the collision, on a road with a 60 mile per hour limit, in daylight and dry conditions. Ms Nevins sustained fatal injuries. Her front-seat passenger sustained minor injuries requiring hospital treatment. The Ford Fiesta also struck a Peugeot, whose driver was uninjured. The appellant ran from the scene and persuaded an unsuspecting motorist to give him a lift back to London. He was linked to the vehicle by DNA on the deployed driver’s airbag and was arrested two or three days later at an address in London.

The appellant had an extensive criminal record including numerous convictions for dwelling-house burglary, driving offences, drugs and dishonesty, and had received substantial custodial sentences in the past. A pre-sentence report assessed him as dangerous, identifying entrenched anti-social attitudes, thrill-seeking behaviour and a complete disregard for the safety of others. The probation officer noted the appellant’s statement that he had failed to stop because he thought he had a good chance of getting away and his description of the collision as “just an accident that could have happened to anyone”, although the officer considered the appellant showed some genuine empathy for Ms Nevins and her family. The report concluded there was an imminent risk of serious harm upon release and a significant risk of reoffending, recommending an extended sentence. The burglary was a third-strike dwelling-house burglary ordinarily attracting a minimum term of three years’ imprisonment.

The sentencing judge indicated that he should have imposed consecutive sentences for the burglary but elected to impose concurrent sentences with an uplift on the manslaughter count to reflect totality. The judge gave credit of 25 per cent for the guilty pleas, indicating a starting point of 20 years’ imprisonment in total. The judge agreed with the probation officer’s assessment of dangerousness and imposed the extended sentence. No sentencing guideline for manslaughter of this kind was available at the time; the current guideline came into effect subsequently.

Mr Kimsey, on behalf of the appellant, advanced three grounds of appeal. First, he submitted that the custodial term of 15 years (starting point 20 years) was manifestly excessive. He argued that although the offence was charged and pleaded as manslaughter, the court should have close regard to the definitive guideline for causing death by dangerous driving, relying on R v Dobby [2017] 2 Cr App R(S) 27. He emphasised that the Crown had accepted this was gross negligence manslaughter rather than unlawful act manslaughter, that the vehicle had not been used deliberately as a weapon, that there was a single fatality (albeit acknowledging that further deaths or serious injuries were avoided by good fortune), and that no drink or drugs were involved. He referred to R v Brown [2018] EWCA Crim 1775, in which arguably worse facts involving multiple fatalities had been charged as causing death by dangerous driving. Secondly, Mr Kimsey challenged the finding of dangerousness, submitting that while the appellant had a very bad record, it did not include significant violence; that he was relatively young; and that risk could be managed by the inevitable lengthy custodial term and driving disqualification. He emphasised that extended sentences must look to the future rather than being punitive for past conduct. Thirdly, he contended that credit of 25 per cent for the plea was insufficient, pointing to the procedural history, the need to obtain expert evidence on speed, and the need for clarification of the Crown’s position on the proper characterisation of the manslaughter.

Lord Justice Davis, giving the judgment of the court, rejected the second and third grounds but accepted the first. On dangerousness, the court held that the judge was entitled to accept the probation officer’s assessment. Although the appellant had no significant record for violence, the present case demonstrated that he was prepared to risk the lives of the public when it suited him. The pre-sentence report had illustrated entrenched anti-social and criminal values, complete disregard for societal norms, a high risk of reoffending and an escalation in his offending. The judge was entitled as a matter of discretion and evaluation to impose an extended sentence. On credit for plea, the court found no error of principle in the judge’s award of 25 per cent given the stage and circumstances in which the pleas were entered.

However, on the length of the custodial term, the court found considerable force in Mr Kimsey’s submissions. The court emphasised that the offending was terrible with tragic consequences and that the speeds driven were almost insanely high on a busy public road. Nevertheless, in circumstances where this was treated as gross negligence manslaughter, the starting point of 20 years was too long. Had the matter been charged and tried as causing death by dangerous driving, as it might well have been, the court would not have expected the maximum sentence of 14 years but rather a sentence somewhat below that. The court held that it would be wrong to increase the sentence well above the 14-year maximum simply because of the decision to charge manslaughter. The court made clear that the guideline for causing death by dangerous driving did not operate as a straitjacket in motor manslaughter cases, but in circumstances such as these those guidelines should properly be borne in mind. The court accepted that a significant uplift was required on count 1 to reflect the seriousness of the burglary, the appellant’s very bad record for burglaries, the planned nature of the offence in company, and the fact that it was a three-strikes case. Having regard to totality and adopting the concurrent sentencing approach taken by the judge, the court concluded that the total starting point before credit for plea should have been 16 years’ imprisonment, rather than 20 years.

Accordingly, the court quashed the extended sentence of 18 years on count 1 and substituted an extended sentence of 15 years comprising a custodial term of 12 years and an extension period of 3 years. The sentence on count 3 remained undisturbed and continued to run concurrently. The court adjusted the discretionary disqualification period, which it considered entirely appropriate, to 3 years to run following the release date at the two-thirds point, namely 8 years. In short, the appeal succeeded in part: the finding of dangerousness and the extension period were upheld, but the custodial term was reduced from 15 years to 12 years to reflect an overall starting point of 16 rather than 20 years’ imprisonment.

Robert Brown [2018] EWCA Crim 1775