Jaynesh Chudasama [2018] EWCA Crim 2867

In R v Jaynesh Chudasama [2018] EWCA Crim 2867 the Court of Appeal (Criminal Division), comprising Sir Brian Leveson P, Whipple J and Cheema-Grubb J, granted leave to appeal against sentence and reduced a total sentence of 13 years’ imprisonment to 10½ years for three offences of causing death by dangerous driving.

The applicant had pleaded guilty on 26 February 2018 at the Central Criminal Court to three offences of causing death by dangerous driving and on 28 March 2018 was sentenced by Her Honour Judge Joseph QC to 13 years’ imprisonment on each count, the sentences to run concurrently. He was also disqualified from driving for 13½ years and thereafter until passing an extended driving test. A Victim Surcharge Order was also made.

On the evening of 26 January 2018 George Wilkinson, Joshua McGuinness (both aged 16) and Harry Rice (aged 17) were walking with two friends along the northbound side of Shepiston Lane in Hayes on their way to a party. The road had a single carriageway with one lane in each direction and a 60 mph speed limit but was not well lit. Horace Miller was driving eastwards at about 30 mph because of poor visibility when the applicant’s Audi A5 swung around past him at speed. Mr Miller described the car as out of control when it passed, with the back end swung out. The car then hit a number of pedestrians head on. Evie Hanson, a witness walking towards the group of boys, described the car mounting the pavement and seeing George, Joshua and Harry fly into the air. Tyre marks showed that the car spun around in a circle three times before coming to a halt on the other side of the road, badly damaged with both airbags inflated. The applicant and his front seat passenger exited the car and attempted to run away, but friends of the victims pursued them and the applicant was apprehended. The passenger escaped but was later identified. George died instantly from head and neck trauma. Joshua was thrown over a cemetery wall with such force that he too died instantly from head and neck trauma. Harry was carried on the bonnet until the car crashed into the cemetery wall; he was crushed as the wall collapsed and sustained multiple fatal injuries.

CCTV footage established that the applicant’s car had been travelling at 71 mph as it overtook Mr Miller’s vehicle. The overtaking manoeuvre was conducted after the first bollard, driving into an area marked by chevrons and bordered by solid white lines contrary to Rule 130 of the Highway Code, and the car re-joined the eastbound carriageway before the second bollard but appeared to have made contact with the kerb. The investigating officer concluded that the CCTV evidence indicated that control was not lost at this point but that the applicant failed to steer for a shallow right hand bend 60 metres further on, mounting the footpath and colliding with the young men. The brakes were only applied at the very last moment. The officer concluded that the Audi could have successfully negotiated the bend even at 71 mph. A blood sample taken eight hours after the incident contained 78 mg of alcohol per 100 millilitres of blood. By back calculation, at the time of the collision the applicant’s blood alcohol level would have been in the order of 213 mg, over two and a half times the legal limit of 80 mg. There were also traces of cannabis in the sample at 1.4 µg, below the specified limit of 2 µg. The investigating officer stated that while he could not be certain why the applicant failed to steer for the bend, it was possible that the level of alcohol and presence of drugs may have exacerbated his poor manner of driving, and he could not rule out distraction from clipping the kerb.

The applicant had left his home at around 3.30 pm that day driving his brother’s Audi, which he was insured to drive, and had spent several hours with friends at a supermarket car park and skateboard park, during which he consumed a considerable amount of alcohol. He was arrested following discharge from hospital and interviewed under caution in the presence of a solicitor, making no comment to all questions. When he first appeared before the magistrates on 29 January 2018 an indication of not guilty pleas was noted to the three charges. However, when he appeared at the Central Criminal Court on 26 February 2018 he pleaded guilty to each offence. He was 28 years of age with one previous conviction for battery (for which he had been fined), a caution for fraud, and a warning for possession of cannabis. A bundle of character references was before the court.

The judge found that this was clearly a case falling into the top level of the sentencing guideline for causing death by dangerous driving, which provided a starting point of 8 years’ custody with a range of 7 to 14 years (the maximum for the offence). The guideline gave as an example of the sort of driving likely to characterise the top level the consumption of a substantial amount of alcohol leading to gross impairment, which was clearly met in this case. The judge identified numerous additional aggravating features: the extremely dangerous overtaking manoeuvre, the excessive speed combined with darkness and poor lighting, failure to give appropriate weight to the testing layout of the road and the bollards, the presence of vulnerable pedestrians, the fact that he put eight lives in danger, and his attempt to leave the scene. All those features moved the starting point up from 8 years and a very long way up the range. The judge then identified the centrally important feature that three boys had died. The judge analysed the defence submission that there was only one course of driving but identified that a cardinal principle of modern sentencing was that the harm done must also be properly reflected. The guideline stated that where more than one person was killed that would aggravate the seriousness of the offence because of the increase in harm, but there was no guideline as to how that should be achieved where other features of the case had already put the sentence towards the maximum. One obvious way to achieve a just and proportionate sentence to reflect multiple deaths where the sentence was already well within the scale was to make the sentences for each death consecutive. The judge considered authorities indicating that normally all offences arising out of the same facts should be sentenced concurrently but noted that the word “normally” or “generally” was repeatedly used, giving rise to the question of when the normal or general did not arise. The judge referred to R v Mannan [2016] EWCA Crim 1082 where it was said that if there were several victims it was perfectly possible the judge would conclude that due to the level of harm there may even be room for consecutive sentences. The judge concluded that this was a case in which it would be proper and appropriate to pass consecutive sentences in order to take account of all the aggravating features of culpability together with the harm done. However, all the authorities together with the Sentencing Council’s guideline on totality made it equally clear that the total of consecutive sentences could not be the adding together of three terms as the totality was based upon a single act of driving. The judge arrived at a figure of 20½ years for the three offences, reduced by 1 year for personal mitigation and by one third thereafter for the guilty pleas, which reduced the total sentence to 13 years. Having reached that figure the judge passed that sentence on each count concurrently and imposed a discretionary disqualification of 7 years, extended to 13½ years to reflect the period in custody as required by section 35A Road Traffic Offenders Act 1988.

The applicant’s grounds of appeal were that it was wrong to calculate the length of sentence by reference to consecutive sentences in respect of each death because the offences arose from a single piece of driving, and that the sentence was manifestly excessive in two respects: first, the increase from the starting point to one near the maximum sentence, and second, the further increase for harm caused above the available statutory maximum to a total of 20.5 years before credit for mitigation and guilty plea. The Crown accepted that consecutive sentences were not appropriate in light of Attorney General’s Reference (R v Brown) [2018] EWCA Crim 1775, [2019] 1 Cr App R (S) 10, decided after the sentence in this case, which made it clear that consecutive sentences should not be imposed for offences arising out of a single incident, but argued that the indication of not guilty pleas in the magistrates’ court justified reducing the discount for a guilty plea to 25 per cent.

The court held that section 125(1) of the Coroners and Justice Act 2009 required every court to follow any sentencing guidelines which were relevant unless the court was satisfied that it would be contrary to the interests of justice to do so. The relevant guideline identified a starting point for the most serious offences of 8 years and a sentencing range of 7 to 14 years (the latter being the statutory maximum prescribed by section 33 and Schedule 2 Part 1 of the Road Traffic Offenders Act 1988). The court considered the totality guideline issued by the Sentencing Council effective from 11 June 2012, which made clear that concurrent sentences would ordinarily be appropriate where offences arose out of the same incident or facts. A specific example identified was “a single incident of dangerous driving resulting in injuries to multiple victims.” The word “ordinarily” was to permit the possibility of consecutive sentences when more than one type of offence was established (such as causing death by dangerous driving and driving whilst disqualified).

The court reviewed a number of authorities, specifically R v Noble [2013] 1 Cr App R (S) 65, which quashed consecutive sentences for causing several deaths on the basis that there was a single act of dangerous driving, and Attorney General’s Reference (No 57 of 2009) R v Ralphs [2009] EWCA Crim 2555 to like effect. R v Jenkins [2015] EWCA Crim 105 concerned serious injury to two people in a collision caused by dangerous driving and Treacy LJ observed that Noble as approved in Ralphs was binding. R v Kroker [2017] EWCA Crim 2472 concerned four counts of causing death by dangerous driving and underlined that the fact that each count arose from the same incident “required” concurrent terms. The judge below had relied on R v Mannan in which it was observed that “if there are several victims it is perfectly possible that a judge would conclude that due to the level of harm there may even be room for consecutive sentences”, but Kroker was decided after Mannan.

The court considered Attorney General’s Reference (R v Brown), decided since the sentence in the present case, in which the Solicitor General argued that a judge could impose consecutive sentences in circumstances where two small children were killed by a drugged driver. Notwithstanding the many aggravating features of that case, the Court of Appeal concluded that there was no basis for changing the principle that consecutive sentences should not be imposed for offences arising out of a single incident. As for the statement in Mannan, the court stated that it was not part of the ratio of the decision, there was only one death in that case, and in any event it was consistent with the use of the term “normally” or “generally” and consistent with a consecutive sentence being imposed for an offence committed at the same time but entirely distinct from the offending giving rise to death, such as driving while disqualified. The court in Brown also rejected the argument that the maximum sentence must be reserved for some notional case the gravity of which cannot be matched by any other set of circumstances. The sentencing guideline provided a sentencing range which encompassed the maximum sentence for the offence. It was clear that the top of the sentencing range (which for this offence was the maximum sentence permitted by Parliament) was not reserved for a notional exceptional case.

The court held that Parliament had prescribed that the maximum sentence for causing death by dangerous driving was 14 years’ imprisonment and the authorities were consistent that where the sentence was imposed for a single act of dangerous driving (putting to one side offences such as driving whilst disqualified), concurrent terms should be imposed for each offence when more than one death resulted. To do otherwise would be to subvert the maximum term. The mechanism for change was not to subvert sentencing practice but to re-examine the maximum sentence for this offence, which was not for the court to do. The court entirely agreed with the judge that the harm caused was very seriously aggravated by the number of deaths and that there were many aggravating features in relation to culpability. In those circumstances the court took the view that this was one of those cases where the appropriate starting point was the maximum sentence of 14 years’ imprisonment. Although the court had read many character references in relation to the applicant and noted the positive report from prison which described the impact on him and his family as well as on his mental health, it could not be said that he was of previous good character in relation to the commission of crime and positive aspects of character were not unusual in cases of this type. In those circumstances the court did not consider it appropriate to reduce the term from 14 years to reflect this element of mitigation.

The court turned to the discount for guilty plea, referring to the Sentencing Council’s guideline in relation to guilty pleas effective from 1 June 2017. Paragraph D1 provided that where a guilty plea was indicated at the first stage of proceedings a reduction of one third should be made (subject to exceptions). The first stage would normally be the first hearing at which a plea or indication of plea was sought and recorded by the court. The relevant exception at F1 concerned further information, assistance or advice necessary before plea and provided that where the sentencing court was satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one third should still be made. In considering whether this exception applied, sentencers should distinguish between cases in which it was necessary to receive advice and/or have sight of evidence in order to understand whether the defendant was in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delayed guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.

In this case the first stage of proceedings was in the magistrates’ court when a plea of not guilty was intimated. The court held that it was not suggested that the applicant was unaware of what happened: even if he did not know the level of alcohol in his blood, he must have known he had drunk too much and, having done so, driven off the road and killed three boys. Secondly and in any event, he was advised by a solicitor while being interviewed by the police after his arrest. In the record of interview (which the court had read), although the applicant refused to answer any questions, the circumstances of the offences were clearly identified with the accounts of a number of witnesses outlined. From that moment, in the absence of some medical explanation (which it had never been suggested was a concern), it was difficult if not impossible to imagine what possible defence could be available. The judge had made the point that prosecuting counsel did not disagree with the claim to an entitlement of one third, but that was not decisive. It was for the judge to assess the position for herself. In the judgment of the court, in the circumstances of this case, having regard to what the applicant knew about what he had done, how that had been described by witnesses (as well as how

Mannan [2016] EWCA Crim 1082
Aslam [2017] EWCA Crim 2454
Porter v Magill [2002] 2 AC 357, [2001] UKHL 67
Franks, Turnbull and Rayner [2012] EWCA Crim 1491; [2013] 1 Cr. App. R. (S) 65
Ralphs [2009] EWCA Crim 2555; [2010] 2 Cr. App. R. (S) 30
Jenkins [2015] EWCA Crim 105, [2015] 1 C App R 70
Kroker [2017] EWCA Crim 2472
Robert Brown [2018] EWCA Crim 1775

R -v- Elliot Bower, Declan Bower, Mason Cartledge: Sentencing remarks of HHJ Jeremy Richardson QC
Court of Appeal Criminal Division Annual Report