Abbas, R v [2008] EWCA Crim 1897

[2008] EWCA Crim 1897Case No 200800929/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 9th July 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LATHAM
MR JUSTICE IRWIN
MR JUSTICE COULSON
Between
R E G I N ACrownv
Between
SAEED ABBAS
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Lewis appeared for Applicant
J U D G M E N T
[1]MR JUSTICE COULSON: On 17th December 2007 in the Crown Court at Bradford, on what would otherwise have been the first day of the trial, the applicant pleaded guilty to one count of causing death by dangerous driving (count 3) and two counts of driving without due care and attention (counts 1 and 2). On 31st January 2008 he was sentenced by His Honour Judge Prince to 7 years' imprisonment on count 3. No separate penalty was imposed on counts 1 and 2. His application for leave to appeal against his sentence was refused by the single judge. It is now renewed to the full court.[2]The relevant facts are these. The applicant was a bus driver who worked for First Buses and had done so since the summer of 2005. At 6.00 am on 25th September 2006 the applicant reported for work at the bus depot at Bradford. His shift involved driving a double decker bus from Bradford to Leeds and then from Leeds back to Bradford and Bradford to Huddersfield via Brighouse.[3]There was an early indication of problems with the applicant when, at about 8.15 am, as the bus was driven along the Stanningley bypass towards Leeds, the passengers noticed that the applicant was braking unnecessarily harshly as he approached speed cameras. Then, as the bus approached a bridge on that bypass, the applicant allowed the bus to drift off the nearside of the road, which put it on course for the bridge parapet. He managed to come to his senses in time and made a sharp swerve to compensate. In doing so, the bus went onto a grass verge and narrowly missed a lamp post before coming back onto the road in the correct lane. It is of note that in interviews later, the applicant claimed that the driving of a motorcyclist had caused him to take such action. Unhappily that turned out to be entirely false.[4]Later the applicant drove back to Bradford from Leeds and passengers getting on there noticed that he failed to change the sign at the front of the bus. Then he left Bradford and headed towards Huddersfield. He was caught on camera, within his own cab, driving with only one hand on the wheel. The first occasion (which gave rise to count 1) lasted for 55 seconds, the second occasion (which gave rise to count 2) lasted for 17 seconds. It appeared he was reading either a timetable or a diary at the time of those incidents of careless driving.[5]Throughout the journey the applicant constantly yawned and rubbed his face and a number of passengers who got on the bus described him as uninterested when they showed him their passes and tickets. When he got to Brighouse he parked the bus at the wrong stop and again seemed uninterested when passengers either paid their fares or showed their passes. He then set off from Brighouse towards Huddersfield on the A461. The weather was clear, the road was dry and visibility was good. There were 44 passengers on board.[6]About 30 seconds before the crash the applicant yawned at least twice and the bus again started to drift across the road. The applicant came to his senses after a few seconds and reacted with compensatory steering but again overreacted and overcompensated. This caused the bus to leave the road. It crossed a foot path, struck a kerb and demolished a lamp post. It passed over the forecourt of a show room and crushed two metal barriers. It then crossed a grass area and dropped down through a hedge over a private access road. It demolished a boundary wall and buried itself into the side of a domestic garage. One of the passengers, on seeing the applicant was losing control of the vehicles, shouted at him but did not seems to register what was happening.[7]All the passengers were thrown about on the bus. Forty of the 44 received injuries, and many had to escape the bus by climbing out of the broken windows. A Mr Rowley, who was sitting at the front on the top deck, suffered an open fracture of the right ankle. He underwent two operations. Nineteen days after the crash he died. That was the result of a massive pulmonary arterial embolism which was caused from thrombosis which was directly attributable to the immobility caused by the injury he had suffered in the crash.[8]In his interview, the applicant purported to blame the mechanical condition of the bus.[9]There was a basis of plea on count 3, which the Crown accepted. This recorded that(a) the defendant admitted losing concentration and thereby causing the accident;(b) the loss of concentration was caused by fatigue and the defendant accepted that he did nothing to abate the fatigue;(c) that the applicant did not fall asleep at the wheel; and that(d) at the beginning of his shift the applicant did not believe himself to be unfit to undertake the driving.[10]When he sentenced the applicant,

Judge Prince said of his driving that morning:

"You, Mr Abbas, were a public service vehicle bus driver. Bus drivers and coach drivers are entrusted with the lives of their passengers every time they take charge of their vehicles. They are paid to adopt that trust of their passengers and the passengers are entitled to expect the drivers to respond to the trust placed in them by responsible and careful driving and concern for their passengers' safety. Tiredness kills. It is a slogan that all drivers have seen lit up in neon above the motorways as they drive."
He went on to say:
"There are indications in the evidence that you were far too tired to be driving from the description given of you by passengers. Your whole attitude on this particular day... was one of irresponsible carelessness for those entrusted to your care. It was a conscious decision you made to drive whilst not just tired but clearly extremely tired and what is worse, it was a conscious decision that was made after you had received a warning as to the condition you were in."
In addition, the judge said that many deaths or injuries could have been foreseen as a result of the condition in which the applicant was at the time of driving, and he took the view that the applicant's culpability was at the higher end. The judge said he could not stress too highly the importance of the warning that he received at 8.15 that morning when he came so close to crashing the vehicle into the parapet of the bridge over the Stanningley bypass. In addition, in his remarks the judge referred to the applicant's lies to the police as to the cause of the accident and the fact that the plea of guilty was not entered until the first day of the trial.[11]The judge said that if the trial had been contested he would have imposed a term of 8 years. He discounted that term by 1 year to reflect the applicant's late guilty plea. On the applicant's behalf this morning, Mr Lewis properly accepts that no issue can be taken with that discount.[12]As we have noted, the application for leave to appeal was refused by the Single Judge, who pointed out the separate occasions when, some time before the accident itself, the applicant had been warned that he was not in a fit state to drive, whatever his belief at the outset of his shift.[13]Originally it was said that the 8 year starting point was too high by reference to two separate grounds. The first was by reference to draft guidelines produced by the sentencing advisory panel. We understand why those were referred to by Mr Lewis in front of the learned judge, but as Mr Lewis very properly accepted before us this morning those are not guidelines to which it is appropriate for this court to have any reference at all, given that they are what they say are, namely draft guidelines, which may or may not be implemented.[14]That leaves the principal point pursued by Mr Lewis in his helpful submissions this morning. That is his submission that, by reference to R v Richardson [2006] EWCA Crim 316, the notional sentence of 8 years was too long. In the circumstances of this case, we respectfully disagree with that submission. It seems to us that this was a case which, in all the circumstances, the judge was entitled to categorise as being of the most serious culpability, albeit, as we explained to Mr Lewis in the course of argument, towards the bottom end of that highest category. According to R v Richardson the range for that category is 7 to 4 years' imprisonment. So the 8 year notional term, prior to the discount for plea, was precisely within the bottom end of that highest category.[15]The principal reasons for identifying this as a case of the most serious culpability are these. The applicant would have realised, during his first run to Leeds, that he was unfit to drive due to fatigue. He received a number of warnings on that trip as to his unfit condition, particularly the near collision with the bridge parapet. It was his failure to recognise that warning sign that gave rise to the tragedy that ensued. He ignored the safety of the 44 passengers who entrusted themselves into his care, because he must have known, by the end of was first run that he was not fit to drive, but he continued to do so. In those circumstances, we consider that this was a case within that highest band, and we therefore consider that the judge was correct to take 8 years as a starting point. There can therefore be no criticism of the 7-year term actually imposed. For these reasons, we dismiss this application for permission to appeal.