Luke Hickman [2019] EWCA Crim 1463

In R v Luke Christopher Hickman [2019] EWCA Crim 1463 the Court of Appeal (Lord Justice Hamblen, Mr Justice Lewis and His Honour Judge Picton) allowed an appeal against sentence for causing death by dangerous driving, reducing the custodial term and adjusting the disqualification order.

Mr Hickman, who was nineteen years old at sentence and had no previous convictions, had pleaded guilty at the earliest opportunity to causing death by dangerous driving, conspiracy to pervert the course of justice, and subsequent offences of dangerous driving and driving whilst over the prescribed alcohol limit. On 14 August 2018 at Wolverhampton Crown Court he was sentenced to six years and eight months’ detention in a young offender institution for causing death by dangerous driving, disqualified from driving for six years with a three year and eleven month extension and required to take an extended re-test. He received six months’ detention consecutive for conspiracy to pervert the course of justice, eight months’ detention consecutive for the subsequent dangerous driving with three years’ disqualification, and four months’ detention concurrent for the alcohol offence with one year’s disqualification. No separate penalty was imposed for three other driving offences, but he was disqualified for one year concurrently on each. The total sentence was seven years and ten months’ detention.

The facts of the principal offence were that on Boxing Day 2016 Mr Hickman drove his car in a Tesco car park with the victim, Ellie Underwood, a friend aged twenty, sitting on the bonnet with her back to the windscreen. He had only a provisional licence and had not passed a driving test. After one circuit he drove around the car park a second time at greater speed, reaching about 25mph at times. As he braked and turned sharp left while travelling at about 15mph, Miss Underwood fell from the bonnet, struck her head on the hard surface and suffered catastrophic skull fractures and brain damage. Neither Mr Hickman nor his two friends called an ambulance when a passing motorist offered to do so. They placed the unconscious victim in the back of the car, drove to a McDonald’s for tissues to wipe away blood, and eventually took her to hospital, where they lied about how she had sustained her injuries. They went to her family’s home and again lied about what had happened and the seriousness of her condition. The lies persisted for days, causing the distraught family further distress. Miss Underwood died on 3 January 2017. The delay and the lies did not affect the medical outcome, as the injuries were inevitably fatal, although the appellant could not have known that.

The subsequent offences occurred some months later. Mr Hickman drove dangerously whilst unlicensed, uninsured and over the legal alcohol limit. Realising the police wished to stop him, he consciously decided to try to escape. A pursuit ensued in which he drove at speeds of up to 60mph, lost control, mounted the central reservation, continued on the wrong side of the road, and eventually abandoned the vehicle before being caught.

A pre-sentence report assessed Mr Hickman as an immature young man who did not appreciate the very serious nature of the offences. Although he stated he felt remorse, his overall demeanour did not reflect this. He demonstrated a lack of insight and gave rise to concern about future risk of selfish and irresponsible behaviour at the wheel of a car.

In his sentencing remarks the judge placed the offence of causing death by dangerous driving at level one, the highest level, in the relevant Sentencing Council guideline. He stated that Mr Hickman had driven with someone on the bonnet for a significant distance at a speed which in the circumstances was grossly excessive and had failed to have any proper regard for the safety of Miss Underwood, who was in a highly vulnerable position. The judge applied a one-third reduction to reflect the guilty plea indicated at the earliest opportunity, arriving at six years and eight months from a starting point of ten years. For the conspiracy to pervert the course of justice, the judge referred to the lies told to the victim’s family and the additional agony and distress caused. He described the behaviour as persistent with a clear intention of covering up a serious crime and said the sentence had to reflect an element of deterrence. For the later dangerous driving, the judge noted the conscious decision to escape from police and the fact that Mr Hickman was uninsured, unlicensed and over the drink-drive limit.

The full court granted leave to appeal on two grounds: that the sentence for causing death by dangerous driving was manifestly excessive and that the total sentence of seven years and ten months’ detention failed to have regard to the totality principle.

On behalf of Mr Hickman, Mr Stirling submitted that the judge had erred in placing the offence in level one of the guideline and that it fell within level two. Alternatively, he contended that the judge was wrong to fix the sentence at ten years before reduction for the guilty plea, having regard to the circumstances, mitigating features, the appellant’s age and lack of previous convictions. He also submitted that the total sentence failed to comply with the totality principle.

The court rejected the submission on categorisation, holding that the judge was entitled to regard the offence as falling within level one. That level applies to the most serious offences and encompasses a deliberate decision to ignore the rules of the road and an apparent disregard for the great danger caused to others. The judge took into account that Mr Hickman deliberately drove with a person on the bonnet at speeds that were excessive in context. He was entitled to consider that driving at speed around a car park with a person on the bonnet involved a flagrant disregard for relevant rules and a disregard for the great danger caused to others. The starting point for level one is eight years’ custody, with a sentencing range of seven to fourteen years.

The court nevertheless concluded that the judge fixed a sentence before the reduction for the guilty plea that failed to reflect the circumstances of the offending and the mitigating features. There were aggravating features in that Mr Hickman was not licensed to drive at all. However, there were also significant mitigating features: the victim was a friend; Mr Hickman did not deliberately set out to cause injury; the incident began as the appellant and others were playing around in the car park; the victim herself took part by getting onto the bonnet after another friend had already been driven around the car park, although the judge had rightly said that the appellant was the person behind the wheel and could have refused to drive; Mr Hickman was eighteen years of age and relatively immature and inexperienced. In all the circumstances a sentence in the region of seven and a half years before reduction to reflect the guilty plea would have been appropriate. After a one-third reduction that would result in a sentence of five years’ detention. To that extent the sentence of six years and eight months was manifestly excessive.

Turning to the second ground of appeal, the court held that the adjustment in the sentence for causing death by dangerous driving resulted in a total custodial sentence of six years and two months, which did reflect the total offending and involved no breach of the totality principle.

The court also addressed the period of disqualification. The judge below had not specified the periods of discretionary disqualification, extension of disqualification or uplift in the manner required by R v Neeham and Others [2016] 2 Cr App R(S) 26. The intention of the judge had been to impose a disqualification period of six years starting from the end of the time actually spent in custody less the period of approximately three months served on remand. The appropriate way to achieve that was as follows. For the offence of causing death by dangerous driving, the period of discretionary disqualification under section 34 of the Road Traffic Offenders Act 1988 should be six years. To that must be added an extension period of two years and six months (one-half of the term of detention for causing death by dangerous driving) pursuant to section 35A of the Road Traffic Offenders Act 1988. There would be an uplift of four months to reflect one-half of the fourteen months for the other two consecutive sentences (six months for conspiracy and eight months for dangerous driving) less the three months spent on remand, pursuant to section 35D of the Road Traffic Offenders Act 1988. The total period of disqualification was therefore eight years and ten months. Mr Hickman remained subject to the requirement to take an extended re-test.

In short, the appeal was allowed to the extent that the sentence of six years and eight months’ detention for causing death by dangerous driving was quashed and a sentence of five years’ detention substituted, and the disqualification order was amended to eight years and ten months with a requirement to take an extended re-test.

R v Neeham and Others [2016] 2 Cr App R(S) 26