Attorney General's Reference No 74 of 2005 [2005] EWCA Crim 3120

Case No 200503744/A5[2005] EWCA Crim 3120
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 17th November 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE TUCKEY
MR JUSTICE HODGE
THE RECORDER OF CHESTER
(Sitting as a Judge of the Court of Appeal Criminal Division)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 74 OF 2005
Computer Aided Transcript of the Stenograph Notes of
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MR E BROWN appeared on behalf of the ATTORNEY GENERAL
MR R JONES appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE TUCKEY:

[1]This is an application by the Solicitor General for leave to refer an 18 month suspended sentence for an offence of causing death by dangerous driving as being unduly lenient. We grant leave for that reference to be made.[2]The offender is Veja Modhvadia, who is 49 years of age. On 19th May 2005, at the Leicester Crown Court before His Honour Judge Morrell, he was found guilty, following a two day trial, of causing death by dangerous driving. The judge adjourned sentence. On 17th June Judge Morrell passed the sentence of 18 months suspended for two years. He also disqualified the offender from driving for two years and ordered him to take an extended driving test and pay £1,000 towards the costs of the prosecution.[3]In short, the offender, a part-time taxi driver, drove his car along a main road in Leicester a little after 2.00 a.m. on the morning of 15th May 2004. The deceased, who was almost certainly drunk, was walking in the middle of the road. A number of cars took avoiding action. The offender had the opportunity to react to the presence of the deceased in the road, but only applied his brakes when he was 2.5 metres away. He collided with the deceased who died later that day from the injuries he received. When interviewed about the matter, the offender was unable to explain why it was that he had reacted so late to the presence of the deceased in the road.[4]At the time of the offence the offender had a daytime job, as well as working as a licensed taxi driver. He started his taxi driving at 5.00 p.m. the previous day and at the time of the offence was driving home, after finishing work for the night. He was alone in his Ford Mondeo taxi which was subsequently found to be in good working order. The accident happened in Humberstone Road, which is a single lane road for those travelling in the direction in which the offender was travelling; there are two carriageways in the opposite direction. The road is subject to a speed limit of 30 mph and is well lit; the weather at the time was fine, visibility was clear and the road was dry. The offender was travelling at 28 or 29 mph.[5]The deceased, Arjan Samat, a 53 year old man, was walking in the road initially in the path of cars coming in the opposite direction to the offender and then on to the white lines in the middle of the road dividing the traffic. Seven cars before the offender's car were able to see the deceased in the road and take appropriate avoiding action. This included braking and moving into the on-coming carriageway if necessary. The car immediately in front of the offender's car was able to take such action and pass the deceased at a time when the offender's car was about 70 metres away from him.[6]When he was about 23 metres away, the video from a CCTV camera shows that the deceased moved into the lane in which the offender was travelling. It was calculated that it took the offender 3.6 seconds to drive the 70 metres to the deceased. At the time of impact his car was travelling at between 23 and 26 mph. Immediately after the accident the offender stopped and did not attempt to leave the scene.[7]When first spoken to about it, he said "Someone was over taking me, the next minute someone hit my windscreen". There is no evidence to show that the offender's car was actually being overtaken, but the video does show a taxi and a car close up behind him, and perhaps this is what he was referring to. He was breathalysed and the test proved negative.[8]The deceased was known to have an alcohol problem and had a number of previous convictions for threatening behaviour and for being drunk and disorderly. He had been arrested a fortnight earlier for being drunk and disorderly. The allegation was that he had been walking in another road in Leicester and had been attempting to kick and punch passing vehicles. On the night in question, all the indications are that he had been drinking, although it was not possible to measure the level of alcohol in his blood. Before the accident, he can be seen on the video walking into the path of on-coming cars and appears to be shouting abuse. The judge said he was "behaving in an unpredictable and bizarre way in the middle of the road and deliberately placing himself in the path of on-coming vehicles".[9]The deceased's death has had a particularly bad effect on his daughters. Such an effect is something which the court should take into account as an aggravating feature when considering the appropriate sentence in a case of this kind, although, of course, the fact of death will always be present in such cases.[10]The Solicitor General identifies the following mitigating features. The offender was regarded as a hard working man. He was of previous good character, although he had once been fined for speeding. As a result of this offence he has lost his employment as a taxi driver. He has expressed remorse for what happened, despite the fact that he pleaded not guilty. He is suffering from depression, for which he is receiving medication, as a result of what happened.[11]We were referred to the guideline case of Cooksley [2004] 1 Cr App R(S) 1. The salient features of that case for present purposes are:(1) culpability as opposed to outcome must be the dominant factor when assessing precisely where in the level of serious crimes the particular offence comes; and(2) even in a case where there are no aggravating circumstances an immediate custodial sentence with a starting point of 12 to 18 months will generally be necessary. This can only be avoided if there are exceptional mitigating features.[12]The other case to which we were referred, AttorneyGeneral's Reference No 85 of 2003 (Eversham), where this Court substituted an immediate custodial sentence for a suspended sentence because there were no exceptional circumstances which justified such a sentence, does not, assist, other than to underline that exceptional means exceptional.[13]The judge was obviously very troubled by the sentencing task which he had to perform in this case. He recognised the sovereignty of the jury in deciding what was dangerous driving and what was not and that the jury's verdict meant that the offender's driving had fallen well below the standard to be expected. But the judge added that if it had been left to him he would have withdrawn the case from the jury, and that he had been surprised and dismayed by their verdict. Nevertheless, he recognised that it was his duty to be faithful to that verdict. After referring to Cooksley, he said:
"In the scale of cases of causing death by dangerous driving, it is difficult to conceive of a lower level of culpability than that which exists in this case. That must be the determining factor and not any feelings of sympathy for the family of the unfortunate Mr Samat. I am in no doubt that the result of this case is going to cause them considerable concern, anxiety, distress and even anger. ... but my duty to justice is to do justice in accordance with the law and with the appropriate consideration of the interests of all who are involved, which includes of course the defendant and his family but, above all, the wider members of the public and, in my judgment, the wider members of the public, and my duty towards them, does not require me to impose an immediate custodial sentence today."
[14]Mr Brown, on behalf of the Solicitor General, says that, with the greatest respect to the judge and what he said, this case was not one where there was exceptional mitigation. He accepts that it was at the lowest end of the scale of culpability, but he submits that it did not justify the judge taking the exceptional course he did. He made the point, which is undoubtedly correct, that simply because the offender was a hard working man of good character was not enough to enable a court to say that the case was exceptional.[15]We have not found this an easy case. Like the judge, we take account of the distress which the loss of their father has obviously caused to his daughters. But when looking at the offender's culpability, it seems to us to be unrealistic to ignore the deceased's conduct. That is obviously what the judge had in mind. Mr Brown conceded that it was appropriate in a case of this kind to have regard to such conduct.[16]We have seen the video. It shows only too clearly what was happening. The deceased was deliberately walking and some times staggering into the path of vehicles travelling close to the speed limit in this main road. He stepped out into the path of the offender's taxi when it was about 20 metres (just over one second) away from him.[17]We think we might not have concluded, despite what the video shows and despite all the other mitigation, that this was a case which warranted the label exceptional. But that was the view of the trial judge, which he expressed very clearly in the passage which we have quoted. We think that the facts of the offence itself, coupled with the other mitigation to which we have referred, did (just) make this an exceptional case so that the judge's sentence can be justified. We do not therefore think it was unduly lenient.[18]Accordingly, the sentence imposed by the judge will stand.