Odame-Danquah [2019] EWCA Crim 689
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Daniel Odame-Danquah [2019] EWCA Crim 689 was an application for leave to appeal against sentence heard by the Court of Appeal (Criminal Division) comprising Lord Justice Flaux, Mrs Justice Simler DBE and the Recorder of Greenwich, His Honour Judge Kinch QC. The court refused leave to appeal.
The applicant pleaded guilty on the day of trial, 3 July 2018, to causing death by careless driving while unfit through drugs. He also admitted summary offences of failing to stop and failing to report an accident. He was sentenced to five years’ imprisonment with concurrent terms for the summary matters. He was disqualified from driving for five-and-a-half years (comprising a three-year disqualification with a two-and-a-half year extension period under section 35A) until taking an extended retest. The single judge refused leave to appeal and the applicant renewed his application.
In the early hours of 3 July 2016 the applicant was driving a Mercedes in the direction of Harlow. As he approached a left-hand bend on an unlit road with unbroken double white lines, he crossed the lines for no apparent reason into the opposite carriageway and collided head-on with a Volkswagen Golf driven by Mr Usama Kabhari. Witnesses who had been travelling ahead of the applicant stopped to assist and saw the applicant unsteady on his feet but walking away from the collision using a mobile phone. Mr Kabhari was taken to hospital but died from multiple injuries. He was 33 years old, a law graduate studying for a Masters Degree in surveying. His family spoke eloquently of their grief in victim personal statements.
By the time police arrived the applicant had left the scene. He could not be contacted by mobile phone and a helicopter and dog search proved unsuccessful. He was located in Waltham Abbey later that day and arrested. In interview he claimed he had been dazzled by oncoming headlights and thought he had hit something hard like a tree. He said he had wandered around in shock, dazed, confused and in pain. He denied being under the influence of drugs or alcohol. However, a blood sample taken from him at hospital contained 11 micrograms of Alprazolam, marketed as Xanax, a prescription-only drug known to cause side effects including sedation, impaired concentration and loss of coordination, plainly incompatible with safe driving. The applicant had not been prescribed the drug. Given the time elapsed between the blood sample and the incident, the concentration at the time of driving was likely to have been higher, possibly within the therapeutic range. The applicant never explained how much, when or where he obtained the drug, claiming amnesia.
A forensic collision investigation failed to establish any exact reason why the Mercedes crossed into the path of the Golf, but concluded that the most likely speeds on impact were between 40 mph and 55 mph for the Mercedes and between 10 mph and 25 mph for the Golf, which was likely slowing down in anticipation of the Mercedes’ approach. The road was subject to the national speed limit of 60 mph.
The applicant was 31 years old at sentence and 29 at the time of the offence. He had previous convictions and cautions for possession of cannabis and a significant conviction in 2010 for dealing in firearms and supplying controlled drugs for which he received seven years’ imprisonment. In 2014 he was convicted of driving without due care and attention after swerving and hitting parked vehicles, for which he was fined and received six points on his licence. He was suffering from ulcerated colitis and had written to the court expressing remorse.
The sentencing judge characterised the offending as careless driving not far short of dangerous driving. He rejected the suggestion that the incident could be explained by momentary dazzling from headlights. He observed that it was driving at night on a difficult road with solid double white lines, where the applicant drove too fast for the conditions having taken pills, ending up on the wrong side of the carriageway and colliding head-on with an oncoming vehicle. The judge concluded that the toxicology evidence did not satisfy him that the quantity taken could be characterised as moderate for the purposes of the sentencing guideline and sentenced on the basis of a minimal quantity having been taken. The Sentencing Council Definitive Guideline suggested a starting point of four years’ imprisonment with a range of three to six years. The judge accepted that the applicant may well have been shaken by the accident, but noted the previous driving conviction and that he had behaved badly after the accident, not just failing to stop but failing to cooperate with the police investigation. He had not been candid about the presence of drugs in his system. The judge also noted that he had served a lengthy sentence for other criminal matters, the licence period for which had not expired at the time of this offence. Taking all those factors into consideration the judge took a starting point just over five-and-a-half years and applied a 10 per cent discount for the late guilty plea, reaching the eventual sentence of five years’ imprisonment with concurrent sentences for the summary offences and the disqualification previously mentioned.
On appeal it was submitted that the judge took too high a starting point. Mr Meredith argued that the driving was not properly assessed as not far short of dangerous and relied on the investigation report’s assessment that the applicant was not travelling in excess of the speed limit. It was further submitted that the judge gave insufficient weight to the available mitigation.
The single judge concluded that it was simply not arguable that the judge had fallen into error in raising the starting point to five-and-a-half years before discount for plea. There were a number of aggravating features present and very little in terms of mitigation. The sentence was neither manifestly excessive nor wrong in principle. The court agreed with the assessment of the single judge and refused the application. In short, the sentence of five years’ imprisonment was upheld as neither excessive nor wrong in principle given the multiple aggravating features and paucity of mitigation.