Attorney-General's Reference No 16 of 2008 [2008] EWCA Crim 1360

Case No 200801531/1747/A4[2008] EWCA Crim 1360
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 30th April 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE FORBES
MR JUSTICE BLAKE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 16 OF 2008
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr P Wright QC appeared on behalf of the Attorney General
Mr S Uttley appeared on behalf of the Offender
J U D G M E N T

LORD JUSTICE HOOPER:

[1]This is a reference under section 36 of the Criminal Justice Act. The Solicitor General seeks leave to refer the sentence of 14 months' imprisonment passed by His Honour Judge Machin on Richard Smith for an offence of causing death by dangerous driving. It is the Solicitor General's submission that that sentence is unduly lenient. At the conclusion of the hearing we announced that we granted leave to refer. Richard Smith seeks permission to appeal the sentence. At the conclusion of the hearing we announced that we had refused permission to appeal. We also announced at the conclusion of the hearing that we would not interfere with the sentence of 14 months. We now give our reasons for this conclusion.[2]Albeit that Richard Smith is also an applicant, we shall call him for convenience "the offender". He was 24 at the time of the offence. Not only did he have no previous convictions, but he had a positive good character.[3]The offender pleaded not guilty at the PCMH, but made it clear in advance of the trial date that he would plead guilty. He did in fact plead guilty on 1st February 2008.[4]At 1723 hours on 4th April 2007 the offender was driving his Toyota Corolla 1.3 motor vehicle, together with his partner and baby daughter as passengers, in an easterly direction along the A17 in the vicinity of RAF Cranwell. His vehicle collided with a Vauxhall Cavalier motor car driven by Geoffrey Holmes, aged 55. Mr Holmes was travelling in a westerly direction along the same single line carriageway and in the company of his wife. The collision occurred when the offender attempted to overtake a line of vehicles, comprising two heavy goods vehicle and two cars, as they travelled at about 40 miles an hour along this section of the A17. While attempting to avoid a head on collision with approaching traffic, the offender lost control of his car, causing it to leave the carriageway. It became air borne and landed on top of the driver's side of the Cavalier motor car. As a consequence of the collision, Mr Holmes sustained head and chest injuries from which he died some nine days later. His front seat passenger, his wife, Mrs Brenda Holmes, sustained fractures to her foot and cheek and injuries to her right shoulder, right arm and face.[5]The A17 at this point is a busy single carriageway road in either direction. It is governed by the national speed limit of 60 miles per hour in respect of cars and 40 miles per hour in respect of heavy goods vehicle. The road is across open country, undulating with a number of bends. There were no adverse weather conditions. Reference was made at the time of sentencing to various hatch marks on the road. Mr Wright QC, who appeared for the Solicitor General, agreed that those hatch marks did not assist in determining the appropriate level of sentence.[6]We have to say that our task would have been easier if we had had a map or plan, photographs of the road at the point at which the overtaking started, and photographs of the road between there and close to the point of the collision.[7]Prior to the overtaking manoeuvre the offender, who did not know the road well, was himself driving properly. A car ahead of him pulled out to overtake the line of vehicles and he followed. He wrongly thought that the line of vehicles contained two cars and a heavy good vehicle. After he started the manoeuvre he saw that there was a further heavy goods vehicle ahead of the one that he had seen.[8]The point at which he drew out was about 200 to 250 metres from the site of the collision. The road at that point was descending with a slight left hand bend. The road then rises gently to the brow of a hill. There was no dispute that in pulling out and seeking to overtake in the way that the offender did he was driving dangerously, given the left hand bend and the brow ahead.[9]Mr Uttley submitted that after the offender had pulled out the accident was inevitable. Mr Uttley submitted that there was nothing that the offender could thereafter do to rejoin the line of traffic. Mr Wright submits that there was a period of about ten seconds or so during which the offender could have pulled back. He could, so Mr Wright submits, have slowed his car right down and joined the line of traffic either in the place where he was before or between the two cars or between the cars and the first of the heavy goods vehicles.[10]We agree with Mr Wright that the offender could have pulled back to his rearside during the early stage of the manoeuvre. We add that there did come a time when faced with the realisation that there would be a head on collision with on-coming lorry (behind which the car of the deceased was being driven), the offender unsuccessfully attempted to take evasive action. There was an issue as to whether or not, at the point of the realisation that there would be a head on collision, it was possible for the offender to get into a gap between the two heavy goods vehicles which he was overtaking. The prosecution rightly did not seek a resolution of that issue. By then an accident was, in effect, almost inevitable as a result of the dangerous manoeuvre of pulling out to overtake and the dangerous manoeuvre of continuing to overtake when it was not safe to do so.[11]Mr Wright submitted to us that the driving was reckless, in the sense that the offender realised that what he was doing carried with it a risk of an accident and he drove on, taking that risk. Mr Uttley submitted that this was not a case of recklessness, but a serious error of judgment.[12]In passing sentence His Honour Judge Machin said at the outset that he could not accede to the submissions made by Mr Uttley that this was a case without any aggravating circumstances. He said that what the offender did in driving in the way that he had done was to exhibit "a very, very serious error of judgment." In his view that meant that the case passed the custody threshold.[13]A little later he said this:
"It is well-known to be a road in which it is absolutely necessary to exercise particular caution when contemplating overtaking anybody. It is a stretch of road where, in my judgment, to have performed the overtaking manoeuvre you did in which you sought to overtake not one, not two, not three but four vehicles, is foolhardy in the extreme in these circumstances and it is because of that piece of overtaking and the way in which you performed it and, of course, very much because of the consequences to Mr Holmes and his family that I have to pass an immediate custodial sentence ..."
[14]In our view Mr Uttley is right and this was not a case of recklessness. We cannot be sure that when the offender started this overtaking manoeuvre he thought that what he was doing might well result in a serious accident. We approach the sentencing in the same way as the trial judge sentenced the offender, namely that he thought it was safe to overtake, but in overtaking he committed a grave error of judgment. He had seen the car ahead of him overtake. The offender failed to take into account the fact that his was not a powerful car, that the car was carrying not only the passengers but some heavy gas bottles, and the fact that he was having to overtake on an upward incline.[15]After the accident the offender ware distraught and deeply apologetic. In interview he was similarly distressed and contrite as the judge found.[16]Both the pre-sentence report and the medical report show a significant impact on the offender's health and well-being as a result of this terrible accident. The impact, of course, on him is nothing compared with the impact on the deceased's wife and the deceased's family, but, nevertheless, the impact on the offender is a factor which must be taken into account.[17]In the reference it is submitted that there were a number of aggravating features present. It is submitted that the manoeuvre performed by the offender was not a temporary misjudgment, but a deliberate act, taken at speed and with appreciation of the inherent risks involved. We have already said why we do not accept that the offender should be sentenced on the basis of a subjective appreciation of the inherent risks involved.[18]Mr Wright also sought to justify the words "taken at speed". Indeed, he referred us to the case of Martin [2005] Cr App R(S) 99 at 599. In our view, the issue of speed does not assist in determining the appropriate sentence. The offender was driving at 60 miles an hour or thereabouts, which was within the legal limit. His error was not to have driven too fast, but to have overtaken at all.[19]It is then said that another aggravating feature is the period over which the dangerous manoeuvre was deliberately performed and persisted in. Mr Wright took us to Cooksley [2003] EWCA Crim 996 and he accepted, as indeed he was right to do, that this was not a prolonged, persistent and deliberate course of very bad driving, as described in paragraph 15 of that case. We accept, however, that there was a period of about ten seconds during which the offender continued the dangerous driving.[20]Finally, and in accordance with Cooksley at paragraph (m) of the aggravating factors listed in paragraph 15, Mr Wright points out that there was, of course, serious injury to the deceased's wife a feature which aggravates the offence.[21]There is no doubt that the following mitigating features were present: the good driving record of the offender, the absence of previous convictions and the positively good character of the offender, genuine remorse and shock and a plea of guilty, albeit not at the PCMH but after that and before the date of the trial.[22]It is submitted by the Solicitor General that the sentence of 14 months' imprisonment fails adequately to reflect the culpability of the offender. It is submitted by Mr Uttley on behalf of the offender that this was a case which was suitable for a suspended sentence, having regard, particularly, to what is described as a momentary error of judgment and to the impact that this accident has had on the offender himself. We have no doubt that this was not a case which fell into that small category of cases where a sentence could properly be suspended. For that reason we refused leave to appeal.[23]Cooksley sets out the relevant categories. This experienced judge, in our view, must have put this offence either at the top of the lowest bracket or towards the bottom of the intermediate culpability bracket. Whilst accepting Mr Wright's arguments that the Cooksley list of aggravating factors does not exclude reference to other aggravating features, we take the view that the judge was right when he put, as we believe he did, this offence at the top of the first category, or at the bottom or towards the bottom of the second category. It was a bad error of judgment to start the overtaking and not to pull back as he was able to do after he had started it.[24]In our view, the appropriate sentence after a trial, applying Richardson [2006] EWCA Crim 3186, was in the region of two to two and a half years. Taking into account remorse and the positive good character, and then deducting from that figure about one quarter for the plea, we take the view that 14 months' imprisonment was lenient, if not unduly lenient. However, taking into account double jeopardy, we have decided that it would be wrong to interfere with the sentence.