R v Aaron Donnelly

We have before us two applications in this tragic case. The first is an application by His Majesty's Solicitor General for leave to refer the sentence which was imposed upon the offender, Arran Donnelly, on the grounds that it is unduly lenient and that it ought to be increased by this Court acting under section 36 of the Criminal Justice Act 1988. The second application is an application on behalf of the offender for leave to appeal against that sentence on the basis that it was manifestly excessive. We will deal with both applications in the course of this judgment.

Arran Donnelly is the offender. He is now aged 29 years. He pleaded guilty in the Crown Court at Manchester to an offence of causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988 . The judge (HHJ Usher) imposed a sentence of 6 years and 9 months' imprisonment in respect of that offence. The judge also imposed a disqualification from driving for 8 years and 4 months. There is a mandatory disqualification of not less than 5 years and there was a requirement that the offender should take an extended re-test upon the expiration of that disqualification. The disqualification was extended, as is required, by a period to reflect the time which the offender will spend in custody. There was at one stage some uncertainty perhaps because of a transcribing error in relation to the sentencing remarks as to the length of that extension but it was correctly recorded in the court record and the court record accurately states the result of the judge's order. It is unnecessary at this stage to say anything about that.

The young man who died was Ryan Evans. He was 27 years old at the time of his death. He died in a traffic accident which was caused by the dangerous driving of the offender. He had been sitting in the rear of the vehicle as one of three passengers. The two other passengers were injured in the collision but not seriously injured.

It is unnecessary to say anything about the procedural history of the proceedings. The judge decided that the plea of guilty, which was entered at the plea and trial preparation hearing, should result in a discount against sentence of 25 per cent and neither side complains about that. The Solicitor General submits that the sentence imposed was unduly lenient principally because the judge erred in balancing the aggravating and mitigating factors which should have resulted in an increase in the starting point and in a lesser reduction than the judge made for the mitigating factors which it is agreed the judge correctly identified.

On behalf of the offender Mr Gray, who has argued his case before us and who represented him in the Crown Court as well, submits that the sentence was manifestly excessive because the judge categorised the offence as falling into culpability category A for the purposes of the guideline when it should have been treated as an offence falling within category B or, at the very worst, as an offence falling at the bottom of the range for a culpability A offence. Culpability A in the guideline attracts a starting point of 12 years and the category range is 8 to 18 years.

As we have said, there were four people in the vehicle including Ryan Evans.

Examination of the offender's mobile phone after the accident revealed two clips which showed him and other passengers using balloons in order to ingest nitrous oxide. Paraphernalia was discovered in the car. After taking that drug the offender performed an extraordinary manoeuvre. He accelerated sharply so that as he rounded a right-hand bend in the road he lost control. The nearside front wheel scuffed the kerb before the vehicle mounted it and crossed it colliding with an adjustment wall. It then scraped along the wall for about 20 metres before colliding with a protruding section. This caused the vehicle to rotate anticlockwise and to slide for a further 13 meters or so across a junction between two roads before smashing into a wall. The vehicle was plainly still travelling at a very considerable speed at the time of the impact with the wall because it was a very heavy collision. The driver's side of the vehicle was particularly heavily damaged by that collision. Mr Evans was the passenger sitting behind the driver in the rear seat. He sustained head injuries from which he died rapidly at the scene.

A number of witnesses saw these events and did their best to report the speed that they thought the vehicle had attained at the point when the offender lost control of it. One witness described the vehicle at the point of acceleration as reaching an alarming speed which he thought may have been as high as 70 or 80 miles an hour. Another witness who was with him and had the same viewpoint, described the vehicle as "taking off like a bat out of hell". That first witness had the strong impression that the driver had simply floored the accelerator. This was an impression formed by observing the speed at which it took off but also seeing that, as it did so, the rear of the vehicle twitched as a result of the torque that was being applied to it by the driver. They were describing a sudden and violent acceleration manoeuvre. Precisely what speed the driver was able to achieve before losing control of the vehicle cannot be precisely measured but it is fair to say that their evidence would suggest that the vehicle was travelling as fast as it could in those circumstances. It was plainly travelling far too fast for the prevailing road conditions. Another witness confirmed that impression. He heard it speeding down the road and almost immediately afterwards was aware of its collision with the wall. This witness thought that the speed that he observed was 50 to 60 miles an hour.

That expert witness described the potential effects of taking nitrous oxide including euphoria, dizziness, impaired judgment and impulsivity. She, on the basis of the sample that she examined, was unable to say whether nitrous oxide had ever been present in the offender's system and described the effects of it as being "possible". She did not give an opinion as to whether there had or had not actually been any impairment of driving in this case. There was no scientific material on which she could do so. The judge of course had the evidence of what actually happened to rely upon. That evidence came from the witnesses and was supplemented by CCTV images which were taken from various cameras around the scene and marks left by the vehicle on the road surface which indicated its travel, as we have already described it.

Examination of the CCTV footage showed that the vehicle, at the point when it was speeding towards its destruction, was travelling over 2.5 times the average speed of other vehicles which could be seen on the same clips. That was the limit of the ability of the collision investigator to use that evidence to assess speed. It was not possible to judge the speed of any of those vehicles but it was possible to assess their relative speeds in relation to each other. On that basis, if those vehicles were travelling at the speed limit of 30 miles per hour, that would mean that the offender’s vehicle was travelling at a speed in the vicinity of 70 miles per hour. As Mr Gray accurately points out, if the comparative vehicles were travelling much more slowly than that, then it would follow the speed of the Audi was also less than that.

There was a basis of plea. The basis of plea contained two assertions which we should particularly mention. The first was the offender's assertion that the maximum speed that the vehicle attained during this process was 50 to 60 miles per hour, the second assertion was that he was not impaired at all by the nitrous oxide which he agreed he had taken. The timing and location of the clips showing him doing that suggest that the ingestion of the drug preceded the collision by just a few minutes.

The basis of plea was discussed before the judge. The prosecution did not accept it and opened its case on the basis of the evidence that it had which we have described. Mr Gray made the submissions which we have also recorded about speed and submitted that, on the basis of the evidence before the judge, he could not safely conclude that there had been any impairment of the offender's driving by the nitrous oxide. The judge resolved those submissions in the course of his sentencing remarks. He did not say that he accepted the offender's estimate of the speed that he had been travelling at immediately before the collision. He did say that he proposed to sentence the offender on the basis that the nitrous oxide had not impaired his driving, certainly not to the extent required for the ingestion of that drug to become as itself and on its own a culpability A factor.

There was heart-rending material before the judge. The victim personal statements of those whose lives have been irretrievably damaged by Mr Evans's untimely death were read to the judge during the course of the hearing and they plainly made an impact on him, as they have on us. We have also read that material with care. We record that it is expressed in a very moving and powerful way and a way which also shows that those who provided those statements are aware of the context in which they were to be used and express themselves with a commendable degree of restraint in the circumstances.

There was also material about the offender. He had cooperated in the preparation of a pre-sentence report. There was a significant quantity of evidence in character references about him. As we have said, he is now 29 years old. He has a partner and a child who is now 7 months old. He has led a blameless and industrious life having been employed as a civil engineer for a number of years. He has described the impact of this incident on him. He does that in a way which does amount to mitigation because what he describes is not self-pity but remorse. He feels intense feelings of guilt as a result of having killed his friend. He set out those emotions in a letter which was read by the judge. It was addressed to the family of his victim and expressed to them his sorrow at the harm which he has caused.

The judge therefore had a very difficult task in arriving at an appropriate sentence in this difficult and anxious case. He was of course required to follow the guideline to which we have already referred. The guideline for this offence operates on the basis that there are no gradations of harm caused by it because all offences of causing death by dangerous driving involve death - the harm is at the highest possible level. Culpability does however vary. The guideline describes three categories of culpability. The judge decided that this case was in culpability category A as we have recorded. The reason for that was that he identified two culpability A factors as being present. He said that there was a deliberate decision to ignore the rules of the road and disregard for the risk of danger to others and that there was speed significantly in excess of the speed limit or highly inappropriate for the prevailing road or weather conditions. As he rightly said, those two culpability A factors both reflect the same fact, that is the fact that this vehicle was driven in a way which was far too fast as we have already described. He decided that a third culpability A factor was not made out, that is "driving highly impaired by consumption of alcohol and/or drugs".

The rival submission by Mr Gray about categorisation points to two culpability B factors. The first of those is "driving at a speed that is inappropriate for the prevailing road or weather conditions where not culpability A"; the second is "driving impaired by consumption of alcohol and/or drugs where not culpability A". The judge found in relation to speed, that a precise speed could not be found but that, on any view, the vehicle was driven at a speed which was very significantly in excess of the speed limit. It might have been as high as 80 miles per hour but that speed has to be treated, as the judge put it "with great caution". The judge found that the speed was a highly inappropriate speed for the road conditions resulting in the accident.

Discussion and conclusion

We do not accept Mr Gray's submission that this sentence was arguably manifestly excessive or wrong in principle. The judge's categorisation of it as a culpability A case was unimpeachable and undoubtedly correct. On one view the judge was generous in the way that he approached the ingestion of nitrous oxide; he focused entirely on the way in which the scientist had expressed her conclusions based simply on the blood sample and her knowledge of the characteristics and effect of nitrous oxide. The judge had other factual material available to him which would amply have justified his conclusion that this otherwise inexplicable piece of driving occurred because the driver's ability to control the vehicle or desire to do so was impaired to a significant extent by the nitrous oxide which he had so recently taken. However, the judge remedied any generosity in treating the nitrous oxide in the way that he did, taking it into account as a further aggravating factor having already placed the case into culpability A without it. Whether the judge's approach was appropriate or not, therefore the end result was not affected by the way that he did it. He was entitled, in our judgment, to take a starting point of 12 years' imprisonment by reason of the culpability A factors which we have identified. For our part, we would have included the nitrous oxide among those factors but this in the result does not affect the outcome.

The real issue for us to consider, in our judgment, is whether the allowance that the judge made for the mitigating factors in reducing that sentence of 12 years' imprisonment by 3 years was excessive. There is no dispute between the Solicitor General and the offender that mitigating factors were present. That mitigation is personal mitigation in relation to the offender and the way that he has lived his life apart from the way that he behaved on that dreadful occasion. His remorse also is genuine and stands him in good stead. The judge approached the case on the basis that the young man who died (Mr Evans) was a close friend of the offender. Assessments of the closeness of their friendship do vary in the evidence but it was not wrong for the judge to deal with the case on the basis of the offender's description of this friendship. That is confirmed by the guilt and remorse which his death has caused to the offender.

The judge's sentencing remarks are humane and well structured. He acknowledged that the sentence that he was required to pass, however long it was, could not restore the harm that the tragic loss of this young man's life has caused. He made an assessment of that mitigation and made what is undoubtedly a substantial reduction to the sentence because of it. We consider that that reduction was within the range that was properly open to the judge albeit a significant one. We do not consider that any more substantial reduction than the judge made would have been justifiable. It was therefore at one end of the appropriate available range.

In those circumstances, we grant leave to the Solicitor General to refer this case to the Court but we have concluded that the sentence which was imposed was a merciful one and not one which we should increase. As we have already recorded, we dismiss the application for leave to appeal which is, in our judgment, in the circumstances of this case, quite unarguable.