R v Petherick (Rosie Lee)
| Jurisdiction | England & Wales |
| Judge | The Vice President |
| Judgment Date | 03 October 2012 |
| Neutral Citation | [2012] EWCA Crim 2214 |
| Docket Number | No: 2012/3360/A1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 October 2012 |
[2012] EWCA Crim 2214
The Vice President
Lord Justice Hughes
Mr Justice Wilkie
Mr Justice Popplewell
No: 2012/3360/A1
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Miss M Russell appeared on behalf of the Appellant
Mr L Ingham appeared on behalf of the Crown
This defendant appeals against a sentence of four years and nine months which was imposed for the offences of causing death by dangerous driving and driving with excess alcohol in a case in which she had entered prompt pleas of guilty.
In June 2011 she was 22 and she was taking an Access to Nursing course with a view to applying in due course for university admission in the hope of qualifying in midwifery. She was the single mother of a boy who was then 16 months old, born in February 2010. Some time before the events with which we are concerned, but not very long before, her relationship with the boy's father had come to an end. The boy was living with her. He had some but relatively limited contact with his father.
On the night of Saturday 25th June 2011, this young woman spent the evening with a group of friends. They were two young men and two young women in all and they were at the studio of one of the young men, Mr Choudhery. This defendant and the two men, but not the other young woman, were drinking steadily. Between the three drinkers they consumed a large and then a small bottle of brandy. When they ran out they decided to go to an off licence to buy some more of the same. The shop was within walking distance, but this defendant had a car and she drove the whole group there; indeed they picked up another friend in the course of the short trip.
On the way back the defendant was driving fast along an urban high street some time not long after midnight. It was the kind of street that has multiple fast food outlets, where there is plenty of traffic, both pedestrian and wheeled, even at that hour of the night. The car radio was turned up. The car was driven much too fast. Some or all of the men in the rear seat were calling for her to drive yet faster and more recklessly, but the woman in the front seat warned her that it was dangerous and that she should slow down. Sadly she followed the former rather than the latter encouragement. She overtook two vehicles but when she was trying to do the same thing a third time she failed to get back to the right side of the road, she struck an oncoming double decker bus and the offside of her car was ripped away. Mr Choudhery, who had been one of the rear seat passengers, was ejected by the impact from the car and suffered fatal injuries in the course of it. The other male passenger, a then boyfriend of hers called Mr Murphy, also suffered quite serious injuries including the collapse of both lungs and fractured ribs.
The defendant's speed in the course of the closing stages of these manoeuvres was put at not less than 60 mph. Judge Bing rightly declined to be sure of the possibly higher figure that might have been suggested by some of the evidence. This was an urban high street of the kind we have mentioned, with a 30 mph speed limit. Sixty mph was far too fast for the conditions, even if the defendant had not also been significantly intoxicated. But she was. Her breath test analysis was 77 micrograms in 100 millilitres—in other words more than double the legal limit for driving.
If we may be allowed to say so, Judge Bing's approach to the very difficult task of passing sentence was principled, thorough and careful. He emphasised the fact that no sentence in a case like this can ever undo the damage that has been done nor assuage the grief of the bereaved. He rightly said that sentences in cases of this kind have to reflect the natural and often strong feelings of the public that the needless loss of another's life by this kind of driving cannot go unpunished. But at the same time, sentencing must take account of the person who is before the court. The judge went on scrupulously to identify the principal things which made this offence worse when compared with others of its kind, and on the other hand those features which went to reduce its gravity by similar comparison.
As to the former, he identified, first, grossly excessive speed, responding as he said to being egged on by the passengers. The speed was reckless. Secondly, he identified correctly driving whilst intoxicated. It goes without saying that this woman ought not to have been anywhere near the wheel of a motorcar that night. Thirdly, he identified persistent and inappropriate overtaking. It was, we are afraid, devil may care driving.
He did not add, but he might have done, that the defendant lied to the police that evening, saying initially that she had not been driving at all but that her boyfriend Mr Murphy had. It is right to say that she did not persist in that and the following day she all but admitted that it had been her who was driving. She also failed to tell the truth to the probation officer about the amount that she had had to drink. Next, she was driving a car which had been refused an MOT certificate and so it should not have been on the road at all. We say at once that its condition had nothing to do with the crash, but it was some further illustration of irresponsible driving and she did not tell the truth about that to the police either. Lastly, and perhaps most significantly, although it is clear that she was egged on by some or all of the rear seat passengers—and despite Miss Russell's careful submissions it is not clear to us whether that necessarily included the unfortunate fatal victim or not and it probably makes very little difference—she was egged on by some or all of the rear seat passengers, but she ignored the warnings of the only sober person in the car, who was the front seat passenger.
So those features sadly made it a worse case than some others of its kind. In the scales on the other side the judge scrupulously identified the following. First, this defendant tendered a prompt plea of guilty. This always justifies a substantial reduction in sentence. In the present case, secondly, it was not for convenience, it undoubtedly reflected genuine remorse. There was clear evidence of that. The defendant, as some but not all who have behaved in this way do, had obviously confronted the grave wrong that she had done and understood it. She had sought counselling and she had sought some help to address the question of her drinking. Thirdly, the judge identified her relative youth and her previous good character. He had before him a number of constructive recommendations from family and from former teachers. In summary, the background seems to have been an unsettled and perhaps rather immature adolescent personality, with a history of mood swings and some difficult behaviour, but an adolescence which she was putting behind her. It was tempered, balanced, by a clear history of willing helpfulness to others in all kinds of fields. Moreover she was someone who had not only never previously offended against the law, but she had held down decent jobs and she cherished the ambition to do a really useful job in midwifery. The effect of her offence was likely to put that in very serious peril, not only obviously as she lost the opportunity through her own actions to follow the course that she wanted, but with this conviction on her record she may well find it difficult, we understand, to go into that profession in future. We do not know. Those of course were inevitable consequences of her own misconduct, but they are features of punishment additional to anything done by the court which she had brought upon herself and they ought to be recognised. The judge did recognise them.
Lastly, the judge identified the effect on this young woman's then two year old son and on her relationship with him. She was his sole carer. It was the inevitable consequence of her offence that he was going to be separated from his mother for about as long as he had thus far lived. What actually happened was that the defendant, we accept, approached the problem with a good measure of responsibility. The child has not had to be taken into care as may happen in some of these cases. She initiated an extended family discussion involving the boy's father, from whom by then she was distant personally, and with his family. That family has assumed the care of the boy. It has all been done with the approval and support both of the defendant's own mother and of the local authority, so care has been taken and sensible and realistic arrangements have been arrived at. The arrangement appears to be working as well as one could hope and everybody concerned deserves a good deal of credit for making it work. But it is obviously correct that the rupture of the key relationship that this boy has up until now had is enormous and is likely on any view to endure for a period not very different from the time that he had lived up until then with his mother. We are told that weekly visits by him to the defendant are possible but those of course are inevitably not without difficulties. It cannot be easy for him. He has reacted emotionally and at times angrily. None of that is in the least surprising. He is too young to have it explained to him what is happening. The defendant for her part will undoubtedly fear that her relationship with him is going to be so damaged by the end of her sentence that it may be incapable of repair. Most of the indications are that father's family will understand that her relationship with him is...
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