R v Martin Asolo-Oguga

LORD JUSTICE DINGEMANS:

1. This is a hearing of an application by his Majesty's Solicitor General for leave to refer a sentence which the Solicitor General considers to be unduly lenient.

2. The respondent is Martin Osolo-Ogugua and he is now 24 years of age, having been born mid-July 2001. He was sentenced on 9 June 2025 to a total of 4 years' imprisonment for an offence of causing death by dangerous driving and an offence of driving whilst unfit through drugs. He was, at a slip rule hearing on 11 July 2025, disqualified from driving for 5 years with an extended period of 139 weeks to reflect the time that it was then wrongly understood he would spend in custody. Grounds of the reference

3. The grounds of the Reference are that the sentence imposed was unduly lenient because it should have been substantially higher than 4 years. That was: first, because the judge was wrong to find that the case fell within culpability B. It was submitted that the respondent's conduct fell within culpability A; and secondly, that if the judge was correct to find the case fell within culpability B, the judge nevertheless imposed a sentence which failed to reflect the substantial period over which the respondent drove in a dangerous state and the significantly aggravating factors that were present. The relevant factual background

4. In August 2024 the respondent was working as a bus driver for Arriva. He started work there in January 2024 and he was on an extended probation period at the time of the offence following some complaints by customers about his driving. He worked for around 38 hours a week over five days with shifts being between 7½ and 8 hours long albeit with breaks.

5. On 2 August the respondent went to a barbecue with friends which continued into the early hours of the morning of 3 August 2024. Text messages from his phone show that at 3.07am he received a message from a friend to which he replied, "It’s 3 still I say we make proper movements." Later, the respondent replied saying: "I’ve got work at 8 so I ain’t sleeping".

6. Analysis of the mobile telephone revealed that it was in use throughout the night. Text messages continued until around 4.20am but there were various calls and a friend managed to get home just after 6.00am. That led to around 8.45am when the respondent left Dartford bus garage driving a red double decker Alexander Dennis bus to the start of the route at Bexley Heath shopping centre, where it was scheduled to pick up passengers at 9 o'clock. The bus had no defects which affected its operation.

7. CCTV from inside the respondent's cab, which we have seen, showed that at 8.45am the respondent was yawning repeatedly. Indeed as soon as he left the depot he appeared to have drifted off to sleep and then to have startled himself and come to, opening his mouth widely before then continuing to drive. At 8.55 he opened the driver's window to rest his elbow on the frame and support his head and at 8.56 he became visibly drowsy with his eyes appearing to close. Someone driving behind the bus said that it was being driven erratically, travelling slowly and when passing parked cars manoeuvring very widely onto the wrong side of the road. Another person driving behind the bus thought: what is he doing?

8. The victim in this case was 9 years old when she died. She was with her father and 5-year-old brother travelling east on the pavement of Watling Street. They were riding bikes and she was on a scooter. They were going to her gymnastics class. The respondent was travelling westbound along Watling Street in the opposite direction from the victim and the family. His eyes appeared to close and his head began to nod. The bus drifted across the road. The footage suggested the respondent was asleep between 6 and 15 seconds. As the bus reached the part of Watling Street where the family were, it crossed onto the wrong side of the road, mounted the pavement, narrowly missing the father and brother but collided with the victim. The bus stopped between 50 and 100 yards down the road. The respondent contacted his controller and asked for urgent medical assistance. He was clearly panicked and told the controller that he had hit a child and did not know if she was still alive. London Ambulance Service was called. Members of the public sought to provide assistance but all to no avail. The victim was pronounced dead later that day.

9. The respondent was arrested. He was tested for drugs and alcohol. He tested negative for alcohol but the drug test was positive for cannabis. A blood sample revealed that there was not less than 5.9 micrograms of Delta-9-thetrahydocannabinol (THC) per litre of blood. The legal limit for driving is 2 micrograms per litre of blood so he was nearly three times over the limit for cannabis in the blood.

10. Expert evidence set out that drivers under the influence of cannabis may drive more slowly in an attempt to compensate for impairment but may not be able to compensate for events on a shorter timescale. Cannabis is capable of having a sedative effect on users. It is not possible to say how the respondent was affected by the level of drugs as that depended on tolerance for and history of abusing cannabis. The expert noted that given the other evidence in the case, it was possible that the respondent was also fatigued from lack of sleep. Indeed, looking at the video it is perfectly apparent the respondent was very tired and half asleep throughout the whole of the journey. There was some later expert evidence adduced on behalf of the respondent that showed that he had been diagnosed with ADHD and that cannabis might make him more focused, which is an opposite effect from that on other persons. It is apparent from the video evidence that the cannabis did not have that effect of making him more focused at the time.

11. The respondent was interviewed on 3 August 2024 and he answered "no comment" to questions asked. He was again interviewed on 2 January 2025 and again answered "no comment". There were victim personal statements recording the devastation that the victim's death had caused to the family. The proceedings

12. The respondent was arrested on 3 August 2024 and he was charged on 13 February 2025. He appeared before Bromley Magistrates' Court when he indicated guilty pleas and the case was sent to the Crown Court for trial. The case was listed for a PTPH on 22 April 2025 and he pleaded guilty to causing death by dangerous driving (count 1) and guilty to the statutory alternative to count

2. Sentence was adjourned for the preparation of reports.

13. The respondent had one previous offence, battery committed on 26 June 2022, for which he had been sentenced before the Berkshire Magistrates' Court on 16 October 2023 to a 12-month conditional discharge.

14. A pre-sentence report was prepared. The respondent told the author that he was not sleeping the night before but that he went to the party well rested as he had slept during the day. The pre-sentence report concluded that the respondent had good insight into the impact of his actions.

15. The respondent wrote a letter "To whom it may concern" in which he set out remorse for his actions and he acknowledged that he had destroyed the victim's family and his own. There were impressive and revealing character references from the offender's mother who appears today, his sister-in-law, brother, cousins, Christian Youth Mentor, family friends and church associates. They spoke to aspects of his difficult upbringing, his hard work at school and university and his volunteer work and his positive qualities including kindness and compassion as well as the devastation and remorse that he felt for his actions. There was a medical report served which showed that the respondent had been diagnosed with ADHD which had been undiagnosed at the time. The sentence

16. So far as the sentencing hearing is concerned, various submissions were made to the judge who then observed during a discussion and mitigation that there was clear tension between the psychiatric evidence of ADHD and the references that had been provided. The judge resolved to treat count 1, causing death by dangerous driving, as the lead offence with the summary-only offence constituting an aggravating factor and the judge concluded that whilst there was a factor which could be said to bring this wrongdoing into the highest category of culpability and wickedness: "… I don’t think it would be right to equate what the defendant did with someone who deliberately drives a motor vehicle for a sustained period of time in a way which they know is dangerous and wicked. What he did was bad enough, but it doesn’t fall into that very highest category of culpability." The judge therefore placed the offending in category B which has a starting point of the offence specific guideline of 6 years because: "He was driving when he had deliberately deprived himself of sleep as I have already remarked, and did so for the pleasure of continuing to party with his friends. And he did carry on driving for some time and he knew he was feeling sleepy, that is why he opened the window." The judge identified aggravating factors that the victim was a vulnerable person; the respondent was driving a public service vehicle which exposed a special responsibility of care; and he was subject to a conditional discharge at the time of the offending, albeit for a different offence. The judge said that the summary-only offence of driving whilst unfit through drugs was also an aggravating feature. The judge uplifted the sentence from 6 years therefore to 7 years. Then the judge identified mitigating factors: relative good character, genuine remorse, actions at the scene, seeking medical assistance and approaching and confronting what he had done, young age and lack of maturity and, to a limited extent, the medical evidence. That reduced the sentence from 7 years to 6 years and that figure was then reduced by one-third to reflect the respondent's early plea of guilty. He was disqualified for 5 years. This Reference

17. We turn therefore to the issues on this Reference. We do consider that the judge went wrong with his sentence and we grant leave for the Reference.

18. We have had some measured regard to the Sentencing Council Guideline for the offence-specific guideline of causing death by careless driving while driving under the influence of drink or drugs. That is careless driving, but driving whilst under the influence of drink or drugs. There are three culpabilities A, B and C. Culpability A is for a standard of driving just below the threshold for dangerous driving. As we know, this respondent pleaded guilty to dangerous driving and so he was the other side of the threshold for dangerous driving. There are two harm categories. The first was for any quantity of a single drug detected above the legal limit and, as we have already indicated, in this case the respondent was nearly three times over the legal limit for cannabis. That harm category for culpability A has a starting point of 9 years, with a category range of 6 to 12 years. That short cross-check demonstrates why, in our judgment, the judge was wrong to have imposed the sentence that he did.

19. We do note that the judge was not referred to that offence-specific guideline of causing death by careless driving while under the influence of drink or drugs. It is submitted on behalf of the Solicitor General that the court can have measured regard to this guideline. On behalf of the respondent it was submitted it was not relevant because he was not convicted of this. In many respects Mr Ratliff and Mr Fishwick, and we are very grateful to both of them for the excellence of their submissions, are both correct. The respondent was not convicted of that offence, but it is relevant to causing death by dangerous driving where for category A, 12 years is the starting point with a range of 8 to 18 years and for category B, 6 years is the starting point with a range of 4 to 9 years.

20. We therefore then turn to the actual grounds of the Reference and whether this should have been categorised as category A or category B offending. The culpability A factors relied on by the Solicitor General are that there was a “deliberate decision to ignore the rules of the road and disregard for the risk of danger to others” and, in our judgment, that factor was plainly present because the respondent made a deliberate decision to attend for work. He did not stop after he had startled himself leaving the depot and he disregarded the risk of danger to others for the period he was driving. The second factor he relied on was there was a “prolonged, persistent and deliberate course of dangerous driving”. There was certainly a prolonged and persistent and deliberate course of dangerous driving because the respondent was aware that he was falling asleep and coming to and he was, as was observed by those who followed him, plainly overcorrecting the bus and he must have been aware of what he was doing. The final factor was that there was a lack of attention to driving for a substantial period of time. In our judgment, the period of 13 minutes from the time that he left the depot until the fatal accident was a substantial period of time and there was a lack of attention to driving because the respondent was falling asleep and plainly yawning throughout the whole of the process. On the video, as we have already indicated, he jolted awake as he left the depot and drove on in that state for some 13 minutes. He must have appreciated that he was in no fit state to drive but continued to drive.

21. It is only fair to note that those three factors all overlap with each other. It is also right to note that there are category B factors, namely that the driving was impaired by consumption of alcohol and/or drugs and there was a further category B factor which was driving when deprived of adequate sleep or rest. The court’s responsibility where there are factors present for more than one category of culpability is to weigh those factors in order to decide which category most resembles the offender’s case. In our judgment, this was plainly category A offending rather than category B offending. In that respect the cross-check to the offence-specific guideline of causing death by careless driving when under the influence of drink or drugs assists.

22. That is not the end of the situation though, because having the offence-specific guideline continues that having determined the category at step 1, the court should use the corresponding starting point to reach a sentence within the category range. An adjustment from the starting point upwards or downwards may be necessary to reflect particular features of culpability or where the case falls close to a borderline between categories. We have already identified that there were a number of culpability B factors and the judge had this into category B. In our judgment, from the starting point of 12 years, it is necessary to adjust the sentence down to 10 years to reflect the culpability B factors.

23. We then turn to consider the aggravating factors. These were that the victim was a vulnerable road user, that the respondent was driving a public service vehicle and he was subject to a court order. We would increase the sentence by 2 years to reflect those important aggravating factors, taking it up to a sentence of 12 years. There is important mitigation. The respondent demonstrated clear remorse. He did try and assist the victim. His age was some mitigation given his age at the time and the fact that 18 is not a cliff edge and it was apparent from some of the references that there was immaturity. We also take into account the impressive character references that were made. In those circumstances, we give credit of 2 years for the mitigation.

24. That leaves a sentence on count 1 of 10 years as opposed to the judge's sentence on count 1 of 6 years, before discount for plea. We then give the full discount for plea of one-third which leaves a final sentence on count 1 of 6 years 8 months. It is therefore necessary to make some changes to the disqualification period. The respondent was disqualified for 5 years for causing dangerous driving. The respondent will serve half the period of the sentence in imprisonment, so the extension period is 3 years and 4 months. That makes an overall disqualification of 8 years and 4 months comprised of the disqualification of 5 years and the extension period of 3 years and 4 months. To that extent the Reference succeeds. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]