Youssaf [2021] EWCA Crim 1094

**R v Youssaf [2021] EWCA Crim 1094** was an application by the Solicitor General under section 36 of the Criminal Justice Act 1988, heard by the Lord Chief Justice (Lord Burnett of Maldon), Mr Justice Goose and Mrs Justice Lambert DBE, in which the Court refused leave to refer a sentence for causing death by dangerous driving as unduly lenient.

Mohammed Youssaf was convicted after trial on 6 April 2021 at Newcastle Crown Court before Lavender J of causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988. He was sentenced to 30 months’ imprisonment. On the first day of trial, the indictment had been amended to add a count of causing death by careless driving contrary to section 2B of the 1988 Act, to which Mr Youssaf entered a guilty plea. The jury’s task had thus been to determine whether the offender’s conduct amounted to dangerous or merely careless driving.

On 23 November 2018, shortly after 4.20pm, Mr Youssaf was driving home from work along Wingrove Road North in Newcastle when he collided with and killed Emma Guilbert, an undergraduate at Newcastle University who was walking back to her accommodation. Mr Youssaf was travelling at approximately 40 mph in a 30 mph limit and passed through traffic lights as they changed from green to amber. He did not see Miss Guilbert crossing in front of him and was not keeping a proper lookout. His view of her was obscured by roadside furniture until between three and four seconds before impact. It was accepted as common ground that neither saw the other. Miss Guilbert crossed against a red pedestrian light without stopping or pressing the button, and whilst listening to music. It was becoming dark. Although Miss Guilbert was wearing dark clothing, street lighting was on and she was thus there to be seen.

Mr Youssaf failed to stop at the scene and drove off, leaving Miss Guilbert in the road. He parked his vehicle, which had a smashed windscreen, away from view two minutes’ drive from his home. He made an unsuccessful 999 call but then tried to delete the record of having done so. His early efforts were plainly directed at avoiding detection. However, before the police located him, he surrendered to the local police station at about 7.30pm, having been sent a clip via WhatsApp at 6.15pm about the collision. The police had already attended his home and spoken to his wife, who said that he had told her he had hit a female crossing the road and was going to the police station. In interview that evening, he described hitting something, parking in a back lane, ringing 999 and deleting the record, and then going for a walk after changing his clothes. When asked in a subsequent interview whether he had been using his mobile phone at the time of the collision, he said he had not. Examination of his phone confirmed that he was not on the phone at the time of the collision but had made and received calls whilst driving home. The last call had finished two minutes and 37 seconds before impact.

Mr Youssaf was charged on 26 February 2020, nearly a year after his re-interview on 15 March 2019. The first magistrates’ court hearing took place on 27 May 2020, delayed by the pandemic. At the first Crown Court hearing on 4 June 2020, Mr Youssaf confirmed he would plead guilty to causing death by careless driving but not to causing death by dangerous driving, a position indicated at the magistrates’ court and repeated in September 2020. Experienced prosecuting counsel at sentencing submitted that the offending fell within level 3 of the relevant definitive guideline, with a starting point of three years’ custody and a range of two to five years. The judge agreed, as did defence counsel Mr Knox.

The judge identified the offender’s failings as driving too fast and not keeping a proper lookout. He noted the mental trauma suffered by the offender, described in a psychiatric report as profound. The judge acknowledged that this was as nothing compared with the impact on Miss Guilbert’s parents, brother, grandparents and wider family, movingly described in the Victim Personal Statement provided by her father. The judge observed that no sentence could relieve the family’s pain. He recorded that the offender had been on the telephone earlier in his drive home but not at the time of the collision, from which it may be inferred that he was satisfied the earlier phone use was no longer an operative factor. The judge referred to the serious aggravation caused by the failure to stop and early attempts to conceal involvement, the offender’s lack of previous convictions and his positive good character, evidenced in a number of references. The judge took account of the mental health problems exacerbated by delay in bringing the case to court and, in line with established authority, the additional restrictions imposed on prisoners during the pandemic. Having started at 36 months in accordance with the guideline, he reduced the sentence to 30 months.

Mr Jarvis, appearing for the Solicitor General, accepted that if the case was correctly placed in level 3, the sentence could not be stigmatised as unduly lenient. He did not suggest that any reduction for lack of previous convictions (as opposed to positive good character) caused double counting that would render the sentence unduly lenient. The essence of his submission was that prosecuting counsel and the judge made a basic error in categorising the case as level 3 rather than level 2, pointing to the earlier use of the mobile phone, the excessive speed and an inadequate general regard for the safety of pedestrians. He advanced that submission with caution, given that the court did not have the judge’s sentencing remarks because of a defect in the recording system and had to rely instead on a list of the main points reconstructed by counsel months after the event.

The Lord Chief Justice rejected Mr Jarvis’s submission. Having regard to the factors identified as determining seriousness within the guideline, the Court was satisfied that prosecuting counsel was correct in submitting that this was a level 3 case and that the judge was right to approach sentence on that basis. This was a tragic accident for which the offender bore the lion’s share of responsibility, but his conduct, looked at in the round, did not place his driving within level 2. Mr Jarvis had relied on decisions of the Court of Appeal suggesting that earlier use of mobile phones might still be operative at the time of a later accident in the sense of continuing to be a serious distraction, but the Court concluded that this was not one of those cases. The Court recognised that sentencing offenders for causing death whilst driving presents real difficulty for any judge and intense distress for the family and friends of the victim, and that no sentence can bring back a loved one or be a trade-off for the value of a life. Judges must adhere to the guidelines and, having identified the relevant level, an evaluative judgment remains to locate the sentence within the relevant range having regard to aggravating and mitigating factors. The judge had the benefit of hearing all the evidence, including expert evidence on the offender’s driving that afternoon. He took account of all the circumstances and alighted on a sentence within the appropriate range. Having rejected the primary argument that this should have been treated as a level 2 offence, there was, as Mr Jarvis accepted, no basis for the suggestion that the sentence was otherwise unduly lenient.

In short, the Court refused leave to refer the sentence, finding that the judge was correct to treat the case as a level 3 offence under the guideline and that the sentence of 30 months’ imprisonment was not unduly lenient.