Cully,R. v [2005] EWCA Crim 3483

Case No 2005/05669/A1

[2005] EWCA Crim 3483

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 13 December 2005

The Strand

London

WC2A 2LL

B e f o r e:

MR JUSTICE LANGSTAFF

SIR PAUL KENNEDY

Between

R E G I N ACrown

- v -

Between

MICHAEL ANTHONY CULLY

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Smith Bernal, 190 Fleet Street, London EC4

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MR J MITCHELL appeared for APPELLANT

J U D G M E N T

Tuesday, 13 December 2005

[1]On 25 May 2005, at the Crown Court at Kingston upon Thames, the appellant pleaded guilty and on 17 August was sentenced by His Honour Judge Matthews QC for an offence of dangerous driving to twelve months' imprisonment and for driving a motor vehicle whilst unfit through drink to four months' imprisonment concurrent, the latter offence having been committed to the Crown Court for sentence pursuant to section 51 of the Crime and Disorder Act 1998. The total sentence was one of twelve months' imprisonment. As to that no issue arises on this appeal. In addition, the appellant was disqualified from driving for a period of five years and was thereafter ordered to take an extended retest and to pay £600 towards the prosecution costs. The issue in this appeal relates to the length of the disqualification and the requirement for a retest. He appeals against disqualification of that length by leave of the single judge.

[2]The facts were these. In the early hours of the morning of 9 November 2004 police officers on patrol discovered that an articulated lorry and trailer, which was being driven by the appellant, had damaged a set of traffic lights and was driving off. An officer shouted at the appellant to get out of his lorry, but he did not respond. When the officer climbed onto the ledge of the cab and tried to open the door, he found it to be locked. The window was open, but the police officer was unable to reach the keys. At this point the appellant revved the engine and moved off, forcing the officer to jump clear. The appellant, who had two-and-a-half times the legal limit of alcohol in his bloodstream, then made three attempts to complete a U-turn. He collided with a parking meter as he did so. Having finally performed the U-turn, he drove around a number of streets in an aimless manner for twenty minutes. He ignored all the police vehicles which indicated that he should stop. In that period he drove on the wrong side of the road, he struck two lamp posts, and he ignored traffic signals. He then performed another U-turn before driving the wrong way down a one-way street which led to a dead end. Shortly afterwards the lorry came to a halt and the appellant was detained.

[3]When interviewed he said that he had a head cold. He had been drinking with two other drivers, one of whom had given him an alcoholic concoction to help him. He had taken three Night Nurse capsules at about midday, and a further three at about 3pm. He had no recollection at all of driving the lorry and no idea of how he had got from Barking to where he had been driving and where he had eventually stopped.

[4]It was plain that this was a case of very bad driving. The danger was clear. Damage was caused. It was associated with driving well in excess of the legal limit of alcohol. There could be, and there is, no challenge to the sentence of imprisonment which was imposed in respect of those circumstances. It is the length of the disqualification which is put in question before us by Mr Mitchell.

[5]The appellant is the proprietor of a haulage business which employed six other drivers and an administrator. It was large enough to have substantial contracts, not least with DFDS; but it was not so large as to survive easily without the appellant's input as a driver as well as an administrator. Accordingly there is a substantial risk to his own livelihood, as well as that of others, if he should be disqualified from driving for a long period of time.

[6]Against that background Mr Mitchell refers to R v Mark Barry King

[2001] 2 Cr App R(S) 503

. At paragraph 18 of the judgment of the court, in respect of the length of disqualification, McKay J said of the appellant:

".... with a previously good driving record his only trade .... was that of a heavy goods vehicle driver and who was a man of moderate means. A period of disqualification which he inevitably faced would put him in great financial difficulties and should be kept to the minimum required."

Mr Mitchell rightly extracts from that quotation these principles: that where an appellant has a job which involves driving, where there is no apparent risk indicated by the circumstances of the particular offence to the public from his continuing to drive, and where a lengthy period of disqualification would impose financial strains upon him, it would be too punitive to impose a lengthy period of disqualification. It might defeat the purpose of the sentence, which is to mark the seriousness of the offence by a period of imprisonment, if it were to deprive the offender of his livelihood and in the present case put at risk the continued livelihood of those whom he employed.

[7]We consider that the purpose of a disqualification from driving is so far as possible to protect the public. Often it may be that drivers come before the sentencing court with an appalling driving record. In such cases an extended period of disqualification may be appropriate since the offence indicates the risk to the public in the individual continuing to drive. Where circumstances do not suggest that there is any such risk, a period of disqualification, though inevitable as it is in a case of dangerous driving, can, and should in our view, be kept to the minimum.

[8]This is a case in which there is no appreciable risk to the public if the appellant should continue to drive. The pre-sentence report identified genuine remorse. The probation officer described the risk of re-offending now only as low, but as very low. The appellant's record reveals some driving offences which were committed in 1992 and 1993. For the last driving offence, failing to comply with a road traffic sign, the appellant was fined £40. The appellant is now aged 36. Those offences were committed at a stage in his life when he was much younger. It is to his credit, and supportive of the probation officer's assessment in our view, that he has not been in trouble since, prior to the instant offence. It is a one-off incident which is out of character.

[9]It is on that basis that we consider it appropriate to reduce the period of disqualification from five years to one of two years. We consider that sufficiently protects the public. Nor do we consider that an extended retest needs to be taken at the conclusion of the period of disqualification. To that extent only this appeal is allowed. __________________________________________