The Magistrate's Blog (2005-2012)

This blog has migrated to www.magistratesblog.blogspot.co.uk This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

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Location: Near London, United Kingdom

The blog is written by a retired JP, with over 30 years' experience on the Bench.

Wednesday, February 07, 2007

Tragic Irresponsibility

R -v- Davina Smith

Sentencing Remarks by His Honour Judge Radford
at Snaresbrook Crown Court – 2 February 2007

It is my baleful duty now to sentence you for the 4 offences of Causing Death by Careless Driving, when unfit through Drugs of which you were found Guilty by the jury who tried you and the offence of Aggravated Vehicle Taking to which previously you had pleaded Guilty upon arraignment.

The facts of this case are stark and tragic. Not long after 6pm on the evening of the 31st January 2006 you set off from your home in Tilbury driving a previously stolen car. You knew it had been stolen; you were on bail at the time for offences of theft and driving another motor car without the owners consent.

You held no driving licence. You had never held any form of driving licence.

You had no insurance. You had taken amphetamine at some earlier time prior to the driving of the stolen car on the 31st January.

When a blood sample taken from you at 11:51pm that evening was analysed it was found to contain 0.3 micrograms of amphetamine per millimetre of blood.

That amount of amphetamine in the blood the jury heard was above that expected after use of a typical abuse amount, possibly by a factor of two or three times.

No back calculation from the time of the taking of the sample to the time of your driving 5 ½ hours or so earlier was possible but, on the whole of the evidence the jury and I heard, I am satisfied that the forensic scientist Dr Slaughter was correct in his opinion that the amount of the amphetamine you had consumed is likely to have been higher at the time of your driving that car that night than at the time you provided the later blood sample, though I accept that the amount of amphetamine you habitually consumed was within the range customary for drug users.

In that car on that fateful journey were 4 children. Two of them were your daughters 4 year old Kalli and 8 year old Karris. The two others were two 16 year olds Lee Gray and Kezia Adger. There were no booster or child seats in the car.

It is clear that although seatbelts were fitted to this car and were in working order, you did not require any of the children to use them.

That alone was criminally irresponsible. That alone heightened your duty to drive with the greatest care, given the likely injury that any accident would cause.

It is plain that you took no such care and that the amphetamine you had ingested caused you to re-act in a grossly negligent way to your wholly belated awareness of the presence of other cars being driven lawfully and carefully along the road ahead of you.

In what was a well lit broad road with good visibility you failed to realise that the speed you were driving at (which was probably about 50mph) whilst within the prevailing speed limit, was well above that of the convoy of slower moving vehicles ahead of you.

When, it seems, you did come to realise this, your reaction was not, as it should have been, to brake, but to over steer your car into the oncoming traffic lane where you lost control of it causing it to present broadside on to an oncoming car being properly driven towards it on its correct side of the road by its luckless, blameless and distraught driver. A collision was inevitable and as a result the
children were all thrown from the car and tragically received fatal injuries.

You were much luckier. You were taken to hospital by Ambulance and recovered from your injuries.

When the police had an opportunity, on the 4th February 2006, following your medical treatment to ask you about the collision you would not answer their questions. However, you provided them with a prepared statement (not therefore an instant response to questions put without warning,) which, with the assistance of your lawyer, you had devised.

In it, you denied that you were the driver of the car, denied that you knew it was stolen and asserted that 16 year old Lee Gray had been the driver.

Each of these assertions were lies as you well knew. The lie that the now dead Lee Gray had been the driver of the car was a terrible wicked lie, compounding as it did the grief and suffering of his family.

It was not until some months later when to your credit you pleaded guilty to the charge of Aggravated Vehicle Taking that you acknowledged by so doing that what you had told the police were indeed lies.

Whilst it is true that at the time of these offences you had never yet to be convicted of any criminal offences (though you were going to be), it cannot be said that you were of good character. It is plain that your use of amphetamine, your driving of stolen motor cars and your driving without licence or insurance had become a settled pattern of behaviour before that dreadful evening.

Even now, I have read in the pre-sentence report you continue to deny that your use of amphetamine would have affected your driving that night and insist that you were a good driver, and that the collision occurred without any error on your part.

Throughout the interview with the Probation Officer who prepared this report you accepted only minimal responsibility for the collision and you attempted to justify your actions.

I read that you displayed only limited acknowledgement of your offending and almost no acknowledgment of the distressing impact that your behaviour had had, not just on the children who died as a result of it, but on many others.

I have read the heartfelt and heart rendering personal statements from the Mothers of Lee Gray and Kezia Adger. The pain, grief and all encompassing anguish of losing one’s children to such a tragic and utterly premature death can hardly be imagined still less recovered from.

Given the loss of life of your own two children the death of whom I am sure you feel keenly. it is difficult to understand how you have not faced up to accepting responsibility for the deaths not only of them but of those whose Mothers have had to try to live with the tragedy you have visited upon their families.

No sentences that I can pass today whatever might be their length can restore the human lives that have been lost nor can such loss be measured by the length of a prison sentence. I recognise too, as successive Lord Chief Justices have said in previous cases, that no term of years imposed on an offender can reconcile the family of a deceased victim of crime to their loss nor will it cure their anguish.

Any sentence I pass has to have regard to the guidance given by the Court of Appeal and within the limits of the law reflect the aggravating and mitigating factors present in the facts of the case.

In doing so in this tragic case, I would like to underline to others the message that the facts of the case all too tragically bear out. Those who take drugs and drive on our roads causing death or serious injury to others because of the inability caused by the effects of taking such drugs to respond to the everyday situations which drivers on our roads have to be aware of and respond to.

Those who drive carelessly while impaired through drugs such as amphetamine can expect condign punishment if thereby they cause the death of others.

In your case, Davina Smith, only immediate custodial sentences are warranted for the seriousness of these offences.

I have to consider whether it is my duty to pass indeterminate sentences, given that all these offences are defined as serious specified offences in the Criminal Justice Act 2003.

Given the lack of previous offences of this gravity or any record of violent offences in the past and the absence of any positive finding to such an effect in the pre-sentence report and knowing the expected effect of the sentences that otherwise I can pass I do not judge that such is required.

I have considered all that has been said on your behalf.

I find that there are aggravating factors here – not least the number of deaths you caused and the amount of amphetamine ingested which, not withstanding that you are not to be sentenced for offences of causing death by dangerous driving, mean that, in my view, this is a case falling within the most serious culpability range.

Of course, I have borne well in mind that you must live with the loss of two of your own children, which is itself a punishment for your criminality.

Taking everything into account, giving you credit for your plea of guilty to the Aggravated Vehicle taking offence, the sentence of the court will be as follows:

ON COUNTS 1 TO 4 you will go to prison for 9 years concurrently and you will be disqualified from driving for 10 years after which you will not be able to obtain a driving licence until you have passed an extended driving test.

ON COUNT 5 you will go to prison for 5 years concurrent and you will be disqualified from driving for 10 years

I direct that the 348 days that you have served on remand in prison will count towards the service of the sentences I have passed upon you.

For the two summary offences involving insurance there will be no separate penalty.

Same for the mandatory penalty points endorsement.

HH Judge Radford
Crown Court at Snaresbrook
2 February 2007