Burdett, R. v [2025] EWCA Crim 487 (27 March 2025)

Neutral Citation Number: [2025] EWCA Crim 487 Case No 2024/02629/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT CHELMSFORD (HIS HONOUR JUDGE MORGAN) [42MR1706521] Royal Courts of Justice The Strand London WC2A 2LL Thursday, 27 March 2025 B e f o r e : LORD JUSTICE POPPLEWELL MR JUSTICE LAVENDER MRS JUSTICE THORNTON DBE ____________________ R EX - v - ETHAN BURDETT ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ Mr A Stein appeared on behalf of the Appellant Mr G Wedge appeared on behalf of the Crown ____________________ A P P R O V E D HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Thursday 27 March 2025 LORD JUSTICE POPPLEWELL: I shall ask Mr Justice Lavender to give the judgment of the court. MR JUSTICE LAVENDER: The appellant appeals with leave granted by the single judge against four concurrent sentences of three years' imprisonment imposed on him on 4 July 2024 in the Crown Court at Chelmsford for four offences of causing death by careless driving, to which he had pleaded guilty in the same court at the plea and trial preparation hearing on 16 April 2024. The appellant committed the offences in the early morning of 23 August 2021 between junctions 27 and 26 on the westbound carriageway of the M25 motorway. The appellant was driving his DAF LF 200 truck in the left-hand lane, where there was no hard shoulder. Ahead of him was a Ford Transit minibus driven by Jamal Hussein, with 11 passengers on board. Ahead of the minibus was a Ford Mondeo car driven by Leslie Woodward, who came to a halt on the motorway because of stationary traffic on the junction 26 slip road, which was due to temporary traffic lights for water mains work. The minibus came to a halt behind the Mondeo. The appellant did not stop in time. He hit the rear of the minibus, causing it to hit the rear of the Mondeo. The minibus fell on its side and the Mondeo spun round to face the wrong way, with its bonnet under the roof of the minibus. The appellant's lorry crossed three lanes of the motorway and struck the central reservation, where it came to rest. Four of the passengers in the minibus were killed. Dexter Augustus, Jennifer Smith and Abigael Muamba died at the scene. Lisa Gardner died six days later. In addition, Peter Salmon, Mansoor Bala, Jamal Hussein and Sonnie Hutchins were injured. Mr Salmon's injuries included fractures of his spine in the lower back area. Mr Bala's injuries included fractures of three ribs, the shoulder blade and his spine in the lower back area, as well as trauma to his spleen. Mr Hussein's injuries included three fractures of his thoracic spine. Sonnie Hutchins' injuries included a fracture of the shoulder blade. In interview, the appellant said that he could not recall exactly what had happened. A joint statement by forensic crash investigators indicated that another vehicle, a white articulated lorry, may have obstructed the appellant's view of the traffic queue until as little as five seconds before the collision. The average time for driver reactions in similar circumstance was between 2.3 and 3.2 seconds. Camera footage from the appellant's lorry showed him looking in his offside wing mirror on three occasions immediately prior to the collision, ending one second before the collision. That was also when the appellant lifted his foot off the accelerator, which indicated that he was then reacting to the stationary traffic ahead of him. That reaction may have been as little as 0.8 seconds later than was to be expected. The appellant was 67 years of age when he was sentenced. He had no relevant previous convictions. The pre-sentence report noted that he was remorseful and visibly upset about the incident. He had undertaken therapy and had had suicidal thoughts. There were 13 victim personal statements before the court which spoke in moving terms of the profound loss suffered by the family and friends of those who were killed and the harm caused to those who were injured. There were also a number of character references before the court. The Crown accepted that the appellant's culpability fell within category C in the offence-specific sentencing guideline on the basis that this was a case of a momentary lapse in concentration. On that basis the starting point for each individual offence was 26 weeks' imprisonment, with a range from a medium level community order to one year's imprisonment. However, the court had to sentence the appellant for causing four deaths. It was also an aggravating factor that the appellant had caused serious injuries to four others. Other aggravating factors were that the appellant was driving a goods vehicle and that he was driving for commercial purposes, although there is an overlap between these two factors and the judge treated them as one factor, rather than two. The mitigating factors advanced on behalf of the appellant were the absence of relevant previous convictions, the appellant's good driving record, his remorse and his health issues, which included a transient ischaemic attack suffered after the incident. It was also submitted that the action of others had contributed significantly to the collision in that there was stationary traffic on the motorway. It was agreed that the sentence should be reduced by one quarter by reason of the appellant's guilty plea. At the outset of his sentencing remarks, the judge said as follows: "It does not need this court to underline the impact of these offences. They've been truly catastrophic on the families of the deceased and those who have been left with serious injuries. The scars will remain with them for the rest of their lives. I've read the victim personal statements provided and listened very carefully, in particular, to Miss Douglas, Miss Elliott and Mr Hutchins, who have read their victim personal statements with dignity and compassion, and I recognise that no sentence which the court can impose will ever make up for the loss caused or bring back to life those who have been killed. Nor can it make right the pain and suffering that those seriously injured have suffered and will continue to suffer into the future." We echo those sentiments. We wish to stress to everyone who has suffered as a result of the appellant's careless driving that we have every sympathy for them and for the irreplaceable loss which they have suffered, but that our duty is to apply the law concerning cases such as this. The judge identified the aggravating factors and took account of the mitigating factors advanced, save that he did not regard the appellant's health or the actions of others as a mitigating factor. He also took account of the delay between the collision and the sentencing hearing. As to the appellant's health, the judge said that there was no evidence before him that an immediate custodial sentence would significantly impact upon the appellant's health or that the appellant would not receive appropriate medical care in prison. As to the stationary traffic, the judge said that those driving on the M25 were alerted by signs to the potential hazard of queuing traffic. He added that the temporary traffic lights were not the sort of action by a third party envisaged by those who drafted the guidelines. The sentence of three years' imprisonment which the judge imposed was equivalent to four years before the reduction for the appellant's guilty plea. The grounds of appeal are that the judge erred in taking a starting point which was at the top of the range for a culpability A case and that the judge failed to take sufficient account of the mitigating factors. As to the mitigating factors, Mr Stein submitted that the appellant's medical condition meant that imprisonment would have a greater impact on him and that the judge should have taken that into account. He also submitted that the judge should have treated as a mitigating factor the fact that the temporary traffic lights caused there to be stationary traffic on the motorway at, moreover, a point where there was no hard shoulder. We agree with the judge that he was not obliged to treat the appellant's health issues as a mitigating factor in the absence of evidence of the effect which imprisonment would have on the appellant's health. The presence of stationary traffic on motorways, which can be caused by the sheer weight of traffic, especially at junctions, is not such an unusual feature as to make the temporary traffic lights a mitigating factor in this case, especially given the signs displayed on this occasion warning of queues ahead. In relation to the other ground of appeal, Mr Stein relied on the following passage in the sentencing guidelines: "The starting points and category ranges below relate to a single offence resulting in a single death. Where more than one death is caused and they are charged in separate counts, or where another offence or offences arising out of the same incident or facts is charged, concurrent sentences reflecting the overall criminality will be appropriate. Where more than one death is caused but they are all charged in a single count, it will be appropriate to make an upwards adjustment from the starting point within the relevant category range before consideration of other aggravating features and mitigation. The court may conclude that it would be contrary to the interests of justice for the final sentence to be limited to the offence range for a single offence. See the Totality guideline and step five of this guideline." It was submitted in the grounds of appeal, although not greatly pressed by Mr Stein today, that this passage meant that the judge should not have moved beyond the top of the range for a category B offence, which is three years' imprisonment. In our judgment, that is not what the guideline says. The relevant statement in the guideline for the purposes of this appeal is: "Where more than one death is caused and they are charged in separate counts, … concurrent sentences reflecting the overall criminality will be appropriate." That statement is not limited to any particular range in the guideline. The question in this case, as in any case concerning the application of a totality principle, is whether the total sentence reflected all of the offending behaviour with reference to overall harm and culpability, together with the aggravating and mitigating factors relating to the offences and those personal to the appellant, and was just and proportionate. The combination of low culpability and very high harm makes for a difficult sentencing exercise in cases such as this. A significant increase in the starting point of 26 weeks' imprisonment was clearly required, even allowing for all of the mitigating factors. However, the sentence in this case had to reflect the appropriate place for this case in the spectrum of offending covered by this offence, which includes cases where the culpability is significantly higher than the appellant's momentary loss of concentration and where the maximum sentence for this offence is five years' imprisonment. The judge's notional sentence of four years, before reduction for the appellant's guilty pleas, was eight times the starting point for an offence of causing death by careless driving in a case where the offender's culpability was, as the appellant's was, at the lowest level. The judge also had to take into account that the appellant's careless driving caused serious injury to four others. But had the appellant been charged with separate offences of causing serious injury by careless driving, the starting point under the offence-specific sentencing guideline for each of those offences would have been a medium level community order, with a range which went up to a high level community order. The sentence, before reduction for guilty plea, imposed by the judge thus far exceeded what would have been the aggregate of the starting points for the eight offences with which the appellant could have been charged. That is not consistent with the totality principle. In all the circumstances we consider that a sentence of four years' imprisonment, before reduction for guilty plea, was manifestly excessive and that the appropriate sentence before reduction for guilty plea would have been two years' imprisonment. We quash the sentences of three years' imprisonment imposed by the judge and substitute concurrent sentences of 18 months' imprisonment. We have considered whether those sentences should be suspended, but we have concluded that they should not. Having taken account of all of the factors listed in the guideline on Imposition of community and custodial sentences , we consider that the overriding consideration in this case is that appropriate punishment can only be achieved by immediate custody. It follows that we have to reduce the period of disqualification from driving imposed by the judge, which was three years, plus an extension period of 18 months. We quash that and substitute disqualification for three years, plus an extension period of nine months, making a total of 45 months. Accordingly, and to that extent, this appeal against sentence is allowed. _________________________________ BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII