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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Boot, R v [2009] EWCA Crim 657 (26 March 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/657.html Cite as: [2009] EWCA Crim 657, [2009] 2 Cr App Rep (S) 114, [2009] 2 Cr App R (S) 114

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		26 March 2009

Thursday 26 March 2009

THE LORD CHIEF JUSTICE:

1. This is an application under section 36 of the Criminal Justice Act 1988 by Her Majesty's Solicitor General for leave to refer to this court for review a sentence which she considers to be unduly lenient. We grant leave.
2. The offender is Andrew Philip Booth. He is 33 years of age and of previous good character.
3. Following a trial in the Crown Court at Exeter, before His Honour Judge Leeming QC and a jury, the offender was convicted of two counts of causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988. On 11 December 2008 he was sentenced to concurrent terms of 28 months' imprisonment and was disqualified from driving for three years.
4. The facts can be briefly summarised. On 2 April 2007, at about 3pm, a serious road traffic accident occurred on the North Devon link road (A361) nears South Molton. In the accident two 25 year old friends, Christopher Andrews and Daniel Bates, were killed. Two other people were seriously injured. The first, a passenger in the Iveco box van driven by the offender, sustained a fractured spine, but happily, we are told, he has now recovered well. The second, the driver of yet another vehicle, Paul Hellier, who was entirely blameless and who was driving a Ford Transit which was involved in the collision, sustained a fractured sternum and bruising.
5. The offender was working as an agency driver for a company in Plymouth. On the day of the accident he was contracted to a firm making deliveries to mid and North Devon. He started work at 7am at the depot at Plymstock. He teamed up with his passenger whose job it was to install "white goods" which were being carried in the 6.5 ton box van. The van was in good serviceable order. The offender held the appropriate driving licence.
6. The last delivery of the day was in North West Devon. It was made at about 2.30pm. The best way back to the depot was via the North Devon link road. Shortly after the van had joined this road the passenger fell asleep and indeed he remained asleep until the accident.
7. The North Devon link road is a major arterial link road. In the area of the accident, there are regular changing priorities for overtaking. Overtaking lanes switch between the westbound and eastbound carriageways dependant on topography. It is a demanding road on which to drive and it is well known to have a number of accident black spots.
8. On the afternoon of 2 April 2007 the road conditions were very good. It was a warm, dry, sunny day.
9. At about 3pm the Iveco box van crested a hill on the eastbound carriageway. That was to be followed by a gentle left-hand bend. The van did not manage to make the bend. It carried straight across the solid double white lines into the path of oncoming traffic on the westbound carriageway. It narrowly missed a car containing a young family. It then collided head-on with a van in which the two deceased were travelling. They were both killed instantaneously. There was a second collision with the van driven by Mr Hellier.
10. Following the collision, the offender called his employer and his girlfriend. He was eventually taken to hospital in an ambulance, although he was discharged from hospital later that day.
11. The accident investigation into the tyre marks and debris left on the road revealed that at the point of impact the Iveco box van was travelling at 49mph. There was no indication that the brakes had been applied before the moment of impact. The left-hand bend was visible 13 seconds before the point of impact for a vehicle travelling at 45-50mph. The Iveco van had crossed the solid double white lines at least 3.7 seconds before the impact. It had not turned or swerved. It had simply carried straight on into the path of the oncoming vehicle.
12. Blood tests were taken from all the drivers involved. All proved negative for alcohol and drugs. The vehicles were all examined. They were all in good serviceable condition. There were no relevant defects. There was no tyre blow-out.
13. The prosecution case against the offender was that he had not been properly engaged with his driving. By the time the case came to a conclusion before the jury the Crown made clear that it invited a conviction on the basis that the offender had indeed fallen asleep after he had felt tired for a considerable time.
14. The offender's case at trial was that he could not remember the accident. He asserted that he would not have allowed himself to be distracted; that he would not have allowed himself to drive while feeling tired; and that (as we understand is still his position) he had not fallen asleep. There was evidence before the jury that the offender had suffered no history of black-outs or any other neurological disorders.
15. When the judge came to pass sentence a few weeks after the conviction, the evidence before him included a letter from the foreman of the jury. The letter suggested that the jury had contained people who had themselves had experience of driving commercial vehicles and that it was the view of the jury that the offender's driving schedule was extremely demanding. The contents of that letter were drawn to the attention of both counsel. The judge indicated that he would take the jury's view into account when assessing sentence. He did not make the contents of the letter public, nor did he briefly summarise its contents for the public.
16. Having reflected on this matter, we consider that the judge should have said something publicly by way of summary about the contents of the letter because it went to the jury's view of the offender's culpability. It did not mean that the jury resiled from its verdict that the offender had caused death by dangerous driving. Nor did it alter the fact that on the jury's verdict the offender must have fallen asleep while he was at the wheel of the van. Nevertheless, if it was to affect mitigation, the public, and in particular the families of the deceased men, were entitled to know that that was a factor which was to be taken into account by the judge.
17. The Solicitor General points to the following aggravating features. The falling asleep was not a sudden, unforeseeable event. The offender must gradually have started to lose concentration while driving his van. As he started to lose concentration, he must have started to appreciate, but he ignored, his steadily declining ability to drive with the necessary attention on a major road and therefore to control his vehicle. This was not deliberately dangerous driving, but it was irresponsible and reckless of the offender to continue at the wheel of his vehicle without stopping to take a break and to wake himself up.
18. The Solicitor General acknowledges the following mitigation. The offender was a man of positive good character. He was a decent, hard-working man and the father of two small children. He had a good driving record. Since he was sentenced to imprisonment, he has responded in a positive way. His remorse for the consequences of this accident is genuine.
19. We have studied the material available to the judge in relation to the impact of this offence on the families of the deceased. It suffices to say that these were two good men who have been wiped out in a fraction of a moment. Their families have been left with unending grief. The fact that there were two deaths was a factor which had to be taken into account by the judge when deciding on the appropriate level of sentence.
20. As always with an offender of positive good character, this was a difficult sentencing decision. However, having regard to the features of the case which we have outlined and the consequent disaster of the deaths of two young men, we are satisfied that the judge founded his sentencing decision at too low a level. In our judgment the sentence here was unduly lenient. We have taken account of the judge's views as expressed in his sentencing remarks, and the material which was not before the public but was available to the judge about the jury's view in relation to the driving responsibilities of the offender on the day of this fatal accident. Nevertheless, we cannot avoid the conclusion that this sentence was not only unduly lenient but that it must be increased in accordance with the ordinary principles to be found in the relevant guidelines.
21. Having reflected on these matters, we have come to the conclusion that the sentence on each count of this indictment, to run concurrently with each other, should be one of three-and-a-half years' imprisonment. To that extent the Reference by the Solicitor General must succeed.