Neutral Citation no. [2001] NICA 39	Ref:     	WEAF3483	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	07.09.2001	
(subject to editorial corrections)	 	 	

 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
 _______
 
THE QUEEN
 
-v-
 
CHARLES ANTHONY JOSEPH BARRETT
 
 ________ 
 
WEATHERUP J
 
	This is an appeal against sentence imposed by His Honour Judge Rodgers at Belfast Crown Court sitting at Antrim on Friday 30 March 2001.  The appellant was sentenced as follows:
(1)        Dangerous driving causing death, contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995 – Seven years’ imprisonment and ten years’ disqualification from driving.
(2)        Driving while unfit through drink or drugs, contrary to Article 15(1) of the 1995 Order – Four months’ imprisonment and one year’s disqualification from driving, both concurrent.
(3)        No insurance, contrary to Article 90 of the Road Traffic (Northern Ireland) Order 1981 – Fine of £50.
(4)        Failing to stop following an injury road traffic accident, contrary to Article 175 of the 1981 Order – Four months’ imprisonment concurrent.
(5)        Driving while disqualified, contrary to Article 167(1)(b) of the 1981 Order – Nine months’ imprisonment concurrent.
	The overall sentence was seven years’ imprisonment and ten years’ disqualification from driving and a fine of £50.  Leave to appeal against sentence was granted by Coghlin J.
	The offences arose out events on the morning of Sunday 9 April 2000 when the applicant was driving his motor vehicle in a citywards direction on the Falls Road, Belfast.  The appellant’s vehicle was observed driving through a red traffic light at the junction of Broadway and Falls Road and the speed of the vehicle was estimated at 50 mph.  Shortly afterwards the appellant’s vehicle collided with the rear of another vehicle travelling citywards on the Falls Road and the appellant’s vehicle then overtook the vehicle with which it had collided at a speed which was then estimated at 60 mph.  The appellant’s vehicle was travelling on the wrong side of the road and then swerved back into the citywards lane and collided with the side of another vehicle driven by Maureen Patricia Sheehan.  This impact was of such severity that it caused Mrs Sheehan’s car to turn over several times and to come to rest on its nearside.  The appellant attempted to restart his motor vehicle and only succeeded in moving the vehicle about 30 feet when the vehicle came to a halt and the appellant was unable to leave the scene by reason of the presence of a hostile crowd.  Mrs Sheehan, who was aged 61 years and was travelling to work as a nurse, died as a result of the collision.  
	The appellant was arrested and taken to Grosvenor Road RUC station.  By his comments to police at that time he demonstrated a total disregard for the consequences of his actions.  He underwent a breath test procedure which disclosed the presence of 91 micrograms of alcohol in 100 millilitres of blood when the permitted limit was 35 micrograms per 100 millilitres.
	The appellant was born on 30 July 1976 and accordingly was 23 years old at the time of the offences.  His mother had died two years earlier and he did not have a settled home, but stayed with friends or slept in cars.  He had engaged in drug and alcohol abuse and had a record of offences relating to drugs and the driving of motor vehicles.  At the time of the offences on 9 April 2000 he was the subject of three different orders for disqualification from driving which arose out of his propensity to drive motor vehicles without insurance and while already disqualified.  He had been the subject of punishment beatings which had resulted in some disability in his knees.  Intellectually he was in the bottom 14% of the population.  The report of the educational psychologist expressed concern about the appellant’s psychological position and considered that he needed professional help with the management of his future.  This view was shared by the probation officer in the pre-sentence report.  At the time of interview for the purpose of that report the appellant expressed remorse for his actions involving the death of Mrs Sheehan.
	His Honour Judge Rodgers gave credit to the appellant for his plea of guilty to the offences.  He then listed the aggravating features which were present in the case as being the consumption of alcohol, persistent bad driving, grossly excessive speed, the commission of other offences at the same time, previous convictions for road traffic offences and the attempt to leave the scene of the offences.  Having noted the maximum sentence on a charge of dangerous driving causing death as one of ten years’ imprisonment he imposed the sentence of seven years’ imprisonment.  Consideration was then given to a custody probation order and having set out the appellant’s failure to respond to previous probation orders as appeared from the pre-sentence report it was considered that there was no basis on which to make a custody probation order.
	The appellant’s counsel relied in essence on two grounds of appeal.  The first was that in all the circumstances the sentence of seven years’ imprisonment was manifestly excessive on a plea of guilty.  The second was that insufficient regard had been had to the contents of the educational psychologist’s report and the pre-sentence report in relation to the decision whether to make a custody probation order.
	This Court has considered sentencing for the offence of dangerous driving causing death on several occasions in recent years.  In 1998 the approach to sentencing was discussed in R v Sloan [1998] NI 58, R v Mullan [1998] NIJB 93 and Attorney-General’s Reference (No. 1 of 1998) (McElwee) [1998] NI 232 and most recently the matter was revisited in R –v- Armstrong (unreported 28 June 2001).  In R v Sloan this court adoptedthe approach of the English Court of Appeal in R v Boswell [1984] 1 WLR 1047 and the proposed aggravating and mitigating features now summarised in Wilkinson’s Road Traffic Offences (19th Edition) as follows -
“Some aggravating features were –
 
(1)        The consumption of alcohol or drugs.  This may range from a couple of drinks to ‘motorised pub crawl’.
 
(2)        A driver who races; competitive driving against another vehicle; grossly excessive speed; showing off.
 
(3)        The driver who disregards warnings from his passengers.
 
(4)        A prolonged persistent and deliberate course of very bad driving.
 
(5)        Other related offences committed at the same time ie. driving without ever having held a licence, driving while disqualified, driving while a learner while unsupervised and so on.
 
(6)        Previous motoring convictions, particularly offences involving bad driving or excessive consumption of alcohol, ie. a man who shows that he is determined to continue to drive badly despite past experience.
 
(7)        Where several people have been killed as a result of the offence.
 
(8)        Bad behaviour at the time of the offence, for example, failing to stop, or worse, trying to throw the victim from his car bonnet in order to escape.
 
(9)        Causing death in the course of reckless driving in an attempt to avoid detection or apprehension.
 
On the other hand, some mitigating factors were-
 
(a)        A ‘one off’ piece of reckless driving – momentary reckless error of judgement, briefly dosing at the wheel or failing to notice a pedestrian at a crossing;
 
(b)       A good driving record;
 
(c)        Good character generally;
 
(d)       A plea of guilty would be taken into account in favour of the defendant;
 
(e)        The effect of the offence on the defendant; shocked or generally remorseful, particularly where the victim was a close friend or relation and the consequent emotional shock was likely to have been great.”
 
	In R v Boswell it had been stated that where there are no aggravating features a non-custodial penalty might be appropriate; but where there are one or more such features custodial penalty is generally necessary.  Drivers who race or drive with reckless disregard for the safety of others after taking alcohol should lose their liberty for upwards of five years, as stated by the Court of Appeal in R v Sheppard [1994] RTR 49 after the maximum penalty for the offence was increased from five years to ten years – a change which was applied in this jurisdiction when the present form of this offence was introduced by Article 9 of the Road Traffic (Northern Ireland) Order 1995.
R v Armstrong bears some comparison with the present case.  Armstrong appealed against a sentence of seven years’ imprisonment on his plea of guilty to a charge of dangerous driving causing death.  He was driving with excess alcohol and having forced one vehicle off the roadway which was travelling in the opposite direction he then swerved into the path of an oncoming vehicle resulting in a head-on collision and the death of a passenger in the other vehicle.  He then left the scene of the incident.  He was aged 34 years with no previous convictions and was a soldier who, as a result of the offence, had lost his employment and his marriage.  This Court stated that the Judge must have placed the case at or very close to the top of the scale of ten years prescribed for offences under Article 9 of the 1995 Order for the sentence must have represented one which on a contest would have been nine or ten years.  Recognising that it was a bad case, but taking into account the possibility of worse cases, this Court considered that a starting point at or approaching the maximum on a contest was not justified and substituted a sentence of five years’ imprisonment.
	In the present case the aggravating features were –
(1)        The consumption of alcohol.  This had commenced the previous evening and was continuing while the appellant drove the motor vehicle the following morning.
(2)        Grossly excessive speed.  In a 30 mph zone the appellant was estimated to be driving at or in excess 50 and the speed at impact with Mrs Sheehan’s vehicle was such as to turn over her vehicle more than once.
(3)        A persistent and deliberate course of very bad driving.  The appellant had earlier driven through a red light at high speed and had collided with the rear of another vehicle before the impact with Mrs Sheehan’s vehicle.
(4)        Other related offences committed at the same time.  The appellant was driving with excess alcohol and had no insurance and was driving while disqualified and attempted to leave the scene.
(5)        Previous motoring convictions.  The appellant had twelve previous convictions for road traffic offences, although none involved dangerous or careless driving.
(6)        Bad behaviour at the time of offence.  The appellant attempted to remove his vehicle from the scene but was unable to do so.
	The mitigating factors were –
(a)        A plea of guilty to the offences at an early stage although on the charge of failing to stop the plea of guilty occurred before the jury was sworn.
(b)       The effect of the offence on the appellant.  He did express remorse for his actions involving the death of Mrs Sheehan to the probation officer.  However, his conduct when he was detained initially by the police was despicable.
	As in the case of R v Armstrong this Court considers that in sentencing the appellant to seven years’ imprisonment on a plea of guilty the judge must have placed this case at or very close to the top of the scale of ten years prescribed for offences under Article 9 of the 1995 Order, for the sentence must represent one which on a contest would have been nine or ten years.  Counsel for the appellant submitted that it is possible to conceive of circumstances which would be even more reprehensible than those arising in the present case and therefore, he asserted, this case ought not to be placed at that level.  The mere ability to conceive of circumstances which might be even more reprehensible than those prevailing in the case under consideration does not necessarily place that case below the maximum sentence on a contest.  Having reviewed all the circumstances of the present case this Court considers that the present case warrants a more severe sentence than that imposed in Armstrong, but that a starting point approaching the maximum on a contest would not be justified, and that the appropriate sentence on the charge of dangerous driving causing death would be six years.
	Article 24(1) of the Criminal Justice (Northern Ireland) Order 1996 requires a court which has formed the opinion that a custodial sentence of twelve months or more would be justified for the offence to consider whether it would be appropriate to make a custody probation order.  When the court makes a custody probation order, Article 24(2) of the 1996 Order requires that the custodial sentence which would otherwise have been passed on the offender shall be “less such period as the court thinks appropriate to take account of the effect of the offender’s supervision by the probation officer on his release from custody in protecting the public from harm from him or from preventing the commission by him of further offences”.
	In Attorney-General’s Reference (No. 1 of 1998) (McElwee) [1998] NI 232 at 238j-239b Carswell LCJ stated:
“In our view the court should look for some material which indicates that there will be a need to protect the public from harm from the offender or to prevent the commission by him of further offences.  The relevant time at which the existence of that need falls to be determined is the time of his release.  If, for example, the court takes the view that after his release the offender is likely to relapse into excess drinking and to drive under the influence of alcohol, it may consider that a period of probation, with a condition attached that he undergo an appropriate course of treatment, would help to prevent the commission of further drink-driving offences.  If so, it would be justified in making a custody probation order.  If it took the view, on the other hand, that by the time the offender is released probation would not be likely to help in such a way, it would not in our opinion be right to make a custody probation order.”
 
	In R –v- Lunney [1999] NI 158 at 163c-e the efficacy of imposing a custody probation order was considered by Girvan J in these terms –
“… Before a court could be satisfied that a custody probation order is appropriate it would have to be satisfied that the defendant would meaningfully respond to the supervision of a probation officer for the period being considered.  Probationary supervision is intended to have a rehabilitative purpose.  Although Article 10(1) of the 1996 Order empowers the court to make a probation order if it considers that it is desirable to do so in the interests of securing the rehabilitation of the offender or protecting the public from harm from the defendant or preventing the commission by him of further offences, the rehabilitative nature and purpose of probation must remain at the heart of probationary supervision for if the court concludes that probation is not likely to bring about any rehabilitation on the part of the defendant there is little purpose in using probation as a mechanism for securing the safety of the public, a function for which the probation service is not really designed.  The protection of the public by probation will be the consequence of the rehabilitative effects of probationary supervision rather than the end in itself of the supervision.”
 
	In the present case the Judge may have had those remarks in mind because he quoted the pre-sentence report’s comments on the unsatisfactory effect of previous probation on the appellant’s conduct before concluding that there was no basis on which to make a custody probation order.
	The educational psychologist concluded his report by expressing his concern for the appellant’s present psychological position, and whilst stating that clearly the appellant required help from both personal and professional sources a further concern was expressed that the appellant’s experiences might make it difficult for him to motivate himself to accept such help.  However, the ultimate conclusion was that “it may be that his own proposal that he join professional led courses for drugs and alcohol abuse, may form a basis for his recovery, but I would consider he may require more intense professional counselling to supplement firm and supportive help and guidance in matters such as housing, personal relationships and in his general behaviour and ability to conduct a useful life for himself and for society.”
	The pre-sentence report does outline the appellant’s poor response to probation.  He satisfactorily completed the first probation order in 1996 which was imposed in respect of possession of drugs.  A drugs education programme was an additional component of the order but the appellant was arrested within a month for possession of drugs.  There was a further probation order in March 2000 with a car crime programme being a component of the order but the appellant was involved in the present offences in April 2000.  Despite those shortcomings the probation officer outlined the appellant’s needs in order to prevent further offending as being to pursue stable accommodation; obtain appropriate training and employment; seek assistance to address his alcohol and drugs misuse; develop an alternative constructive lifestyle which is removed from the negative influence of his former associates; address his own feelings of grief and develop awareness of the impact of his behaviour upon others.  It was suggested by the probation officer that these factors could be addressed through a period of statutory supervision upon release and that and in addition the defendant would benefit from attending specific programmes to address his alcohol and drug abuse.
	It is apparent that the appellant will require assistance in order to undergo substantial lifestyle changes.  In view of the material in the educational psychologist’s report and the pre-sentence report this Court considers that a probation period of one year would be of assistance to the appellant at the conclusion of his custodial sentence in protecting the public from harm from him and in preventing the commission by him of further offences.
The appellant’s appeal is allowed and the sentence of seven years’ imprisonment imposed on the first count of dangerous driving causing death is varied to a custody probation order of six years comprising five years’ imprisonment and one year’s probation.  It shall be a condition of probation that the appellant shall –
(i)        present himself in accordance with the instructions given by the probation officer to the Probation Centre, 40-44 Great Patrick Street, Belfast to participate in an alcohol management programme on eight days during the probation period and while there comply with instructions given by or under authority of the person in charge.
(ii)       present himself in accordance with the instructions given by the probation officer to the Probation Centre, 40-44 Great Patrick Street, Belfast to participate in a drugs education programme for eight sessions during the probation period and while there comply with instructions given by or under authority of the person in charge.
	The disqualification from driving for ten years is affirmed and the sentences imposed on the other counts are affirmed.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
 _______
 
THE QUEEN
 
-v-
 
CHARLES ANTHONY JOSEPH BARRETT
 
 ________ 

J U D G M E N T
O F
WEATHERUP J
 _______