Robert Brown [2018] EWCA Crim 1775

In Regina v Robert Anthony Brown [2018] EWCA Crim 1775 the President of the Queen’s Bench Division, sitting with Mr Justice William Davis and Sir Wyn Williams, increased on a reference by the Solicitor General the sentences imposed following the offender’s convictions for two counts of causing death by dangerous driving. The offender had pleaded guilty at the plea and trial preparation hearing in the Crown Court at Warwick to two offences of causing death by dangerous driving and one count of driving whilst disqualified. On 27 April 2018 His Honour Judge Lockhart QC sentenced him to concurrent terms of nine years’ imprisonment for the causing death offences and four months concurrent for driving whilst disqualified, with an extended disqualification order totalling fifteen years. The Solicitor General referred the sentences under section 36 of the Criminal Justice Act 1988 as unduly lenient.

On 22 February 2018 at around 2.00 p.m. a group of three mothers and nine children were crossing Longfellow Road in Coventry, a two lane road in a residential built up area subject to a 30 mph speed limit, having made proper checks before crossing. Mr Brown was driving a Ford Focus along the road with a front seat passenger. Witnesses observed him driving too fast, overtaking a van and taxi at speed, cutting in front of them with his car wobbling from side to side. Onlookers said he was driving “like a mad man” and “at motorway speeds”, sitting “lent right back with an arm high up on the wheel like a boy racer”. As he approached the crossing point he accelerated to approximately 70 mph. Although he had a clear line of sight for over 100 metres, and a competent driver travelling at 60 mph would have been able to stop within the stopping distance of 73 metres, Mr Brown drove straight into two children in the group without attempting to avoid them. He began to brake only immediately prior to impact. Casper Platt-May, aged two, who was being pushed in a push along car, and his six year old brother Corey were thrown into the air. Both children died from multiple injuries sustained in the collision.

After the collision Mr Brown drove a short distance to a junction before stopping when the airbags inflated. He and his passenger got out and he attempted to restart the car, but a witness took the keys from him saying he was not going anywhere. When they returned to the scene the passenger claimed she had been driving. When Mr Brown tried to walk away the witness restrained him, but the passenger struck the witness causing him to lose his grip and Mr Brown ran off. He and his passenger hid in a nearby garden where they were found by police. On arrest Mr Brown was aggressive and uncooperative. He initially made no comment in interview, then falsely claimed a man called Marcus had been driving and had jumped from the moving car. When confronted with evidence disproving this he became abusive. Analysis of his blood sample showed cocaine at four and a half times the legal driving limit consistent with consumption in the preceding eight hours, as well as a mixture of strong sedatives.

Mr Brown, born 5 May 1964, had been convicted 57 times for some 209 offences and served many prison sentences, the longest being six years. He had been released on licence from a six month sentence imposed on 17 November 2017 only six days before these offences. He had 30 convictions for driving whilst disqualified, had never held a driving licence or car insurance, had four previous convictions for driving with excess alcohol and two for failing to provide a specimen. In 1998 he was convicted of aggravated vehicle taking when he drove dangerously. The judge received a letter from the offender’s daughter expressing remorse, though the children’s mother did not accept this was genuine and referred to his abuse and aggression at his first court appearance. A medical report noted mental and behavioural disorder due to substance misuse and other mental health issues.

The sentencing judge applied the Sentencing Guidelines Council Definitive Guideline for offences involving death by driving, concluding that the offence fell within Level 1 by reference to the nature of the offence, which carries a starting point of eight years with a range of seven to fourteen years’ custody. He identified additional aggravating factors: two children died in circumstances which should have been readily anticipated given the area; the offender’s extensive previous convictions demonstrating a life of crime and incarceration; driving whilst disqualified never having held a licence or insurance; and his conduct after the collision including attempting to flee and falsely claiming he had not been driving. The judge identified a starting point of twelve years’ imprisonment to reflect these aggravating features with some allowance for remorse, reduced by 25 per cent for the guilty plea to nine years, and imposed a concurrent term of four months for driving whilst disqualified.

The Solicitor General advanced two principal grounds. First, it was submitted that the judge should have reflected the loss of two young lives by imposing consecutive sentences on each count of causing death by dangerous driving, enabling a starting point greater than the statutory maximum for a single offence and producing an overall sentence in the region of twelve years even after discount for plea. Second, that the starting point of twelve years after trial was too low and should have been at or very near the maximum of fourteen years.

The Court of Appeal comprehensively rejected the first ground. Sir Brian Leveson P reviewed the settled authorities establishing that concurrent sentences are the norm for offences arising from a single incident or transaction. In R v Noble [2002] EWCA Crim 1713 this court had quashed consecutive sentences totalling fifteen years for six deaths and substituted concurrent terms of ten years, holding that the element of chance in the number of people killed by a single piece of dangerous driving underlined the appropriateness of the general principle against consecutive sentences for offences arising from the same incident. That principle was approved by Lord Judge CJ in Attorney General’s Reference (No 57 of 2009) [2009] EWCA Crim 2555 (R v Ralphs) and again in R v Jenkins [2015] EWCA Crim 105 concerning causing serious injury by dangerous driving. The Sentencing Council guideline on totality, effective from 11 June 2012, expressly provides that a single incident of dangerous driving resulting in injuries to multiple victims with separate charges for each victim should generally result in concurrent sentences, each aggravated to reflect the harm caused.

The President held that the Solicitor General’s reliance on Attorney General’s References (Nos 60, 62 and 63 of 2009) [2009] EWCA Crim 2693 (Appleby) was misplaced. Appleby was concerned specifically with sentencing in cases of involuntary manslaughter and the effect of section 143 and Schedule 21 of the Criminal Justice Act 2003, emphasising that crimes resulting in death should be treated more seriously. However, the court had considered whether section 143 affected the principle regarding consecutive sentences in Ralphs, handed down fifteen days before Appleby, and had affirmed the principle. Both judgments were delivered by Lord Judge CJ. The proposition that he intended in Appleby to overturn what he had said in Ralphs was wholly untenable. Moreover, Appleby had no wider significance beyond manslaughter sentencing. The court noted that if the prosecution charge manslaughter (maximum life imprisonment) the court has scope to impose a longer sentence than permitted for causing death by dangerous driving, citing R v Dobby [2017] EWCA Crim 775 as an example, though endorsing the observation that it is important the maximum for causing death by dangerous driving is not circumvented simply by charging choices where the driving does not justify setting it apart from dangerous driving per se. The court was satisfied that none of the developments relied on provided any support for changing the principle that consecutive sentences should not be imposed for offences arising from a single incident.

On the second ground the court accepted the submission. The President rejected the argument that the maximum sentence must be reserved for some notional case of greater gravity. The sentencing guideline provides a range encompassing the maximum sentence and states that where an offence involves both determinants of seriousness, particularly if accompanied by aggravating factors such as multiple deaths or a very bad driving record, this may move an offence towards the top of the sentencing range. The court held that the circumstances of this case justified a sentence at the very top of the range before credit for plea. The driving itself involved every element of seriousness in the guideline. There were multiple additional aggravating factors including the offender’s appalling record, particularly for driving when he had never lawfully been able to drive. The mitigating factors were very limited in effect.

The court concluded that the starting point before limited mitigation and allowance for guilty pleas should have been fourteen years’ imprisonment. The court reduced that to thirteen and a half years to reflect the measure of remorse accepted by the judge, notwithstanding the victims’ mother’s views. The court added six months as the appropriate sentence prior to allowance for plea for deliberate disregard of road traffic laws by driving whilst disqualified, to be served consecutively. Discounting by 25 per cent for guilty pleas led to a sentence of ten and a half years’ imprisonment. Satisfied that the total proper sentence after trial would have been fourteen years, the court concluded that to impose a sentence based on two years below the proper sentence was unduly lenient, particularly in a case involving the loss of two lives.

In short, the Court of Appeal allowed the reference and increased the sentence to ten years three months’ imprisonment concurrent on each count of causing death by dangerous driving and three months consecutive for driving whilst disqualified, making ten and a half years in total, adjusting the extension period of disqualification to five years three months.

Noble [2002] EWCA Crim 1713, [2003] 1 Cr App R (S) 312
Ralphs [2009] EWCA Crim 2555; [2010] 2 Cr. App. R. (S) 30
Jenkins [2015] EWCA Crim 105, [2015] 1 C App R 70
Dobby [2017] EWCA Crim 775

Jaynesh Chudasama [2018] EWCA Crim 2867
Daniels [2019] EWCA Crim 296
Dobson [2019] EWCA Crim 409
Austin [2020] EWCA Crim 1269
Bradley Downs [2020] EWCA Crim 1068
Lowe [2021] EWCA Crim 60
Soto & Waite [2023] EWCA Crim 55
Lomas [2023] EWCA Crim 1436
Robinson [2025] EWCA Crim 680
R. v Balcazar Soto (Luis Fernando) [2023] EWCA Crim 55