Gray, R v [2008] EWCA Crim 336

Case No 2007/6315/A8[2008] EWCA Crim 336
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 4 February 2008
Strand
London, WC2A 2LL
B e f o r e:
THE VICE PRESIDENT
(LORD JUSTICE LATHAM)
MR JUSTICE FIELD
SIR PETER CRESSWELL
Between
R E G I N ACrownv
Between
DANIEL GRAY
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 O Jarvis appeared for Appellant
J U D G M E N T

SIR PETER CRESSWELL: On 24th May 2007, the day of the trial, at Doncaster Crown Court, the appellant, who is now aged 20, pleaded guilty to a single count of dangerous driving. On 30th November he was sentenced by His Honour Judge Robinson to 13 months' detention, disqualified from driving for two years and until an extended test was passed. He appeals against sentence by leave of the single judge.

[2]The facts shortly are as follows. At about 10.30 in the morning of 27th September 2005 the appellant was driving a Mazda along Pastures Road, a country road on the outskirts of Mexborough, into a sweeping right-hand bend towards Mexborough. The speed limit was 60 mph. It was a fine day. Visibility was good. An on-coming motorcar noted the appellant's vehicle straddling the white line in the middle of the road, partly in the wrong lane, but managed to pass by without a collision.[3]Behind that vehicle was a motor cyclist, Mr Williams, riding at about 45 mph with his headlight illuminated. The vehicle driven by the appellant continued to straddle the white line and collided with the motorcycle about 100 yards past the bend. The accident investigation report concluded that Mr Williams had been 0.7 metres inside the white line in the correct lane. The appellant stayed at the scene and waited for the police to arrive. Mr Williams sustained very severe injuries. All three major bones in his right arm were fractured -- five fractures in all. They had to be repaired with steel rods and bolts. He sustained three broken ribs and a collapsed lung, suffering pneumonia during his recovery. He sustained complex fractures of the pelvis and right hip which needed reconstructive surgery. The consultant surgeon considered that he was likely to suffer degenerative change in the right hip because of the severity of the damage to his joint and could suffer pain and arthritis in his left leg indefinitely. There was an open right fracture to the femur and the knee joint which was so severe that there had to be amputation above the knee. Mr Williams had to learn to walk again on a false leg and had to use a wheelchair for some time. He was released from hospital on 24th December 2005, but thereafter was wheelchair bound and in need of constant care from his wife. He was never going to recover and his family were concerned about their ability to cope financially.[4]In his sentencing remarks

the judge referred to the delay, saying this:

"The delay principally appears to have been on the part of the prosecution. However, you have pleaded guilty only on the morning of trial and you could have pleaded guilty at any time effectively from about the beginning of 2007."

The judge continued:

"The circumstances of this offence represent the worst nightmare of every decent motorcyclist... The worst nightmare of every motorcyclist is somebody like you, emerging from the opposite direction in a motorcar being driven in such a way that the motorcar is occupying precisely that part of the road that the motorcyclist has adopted for his safe manoeuvre. Your driving was aggravated by the fact that you were still on the wrong side of the road, a good hundred yards from the end of what, for you, was no more than a sweeping right-hand bend. ... The motorcycle driven by Mr Williams was not the only motorist who was put in danger by your actions because Mr Kozlowski, who was driving in front of Mr Williams in a motorcar with his wife as a passenger, saw you and they were both frightened. The consequences of your dangerous driving, described in some of the papers I have before me as a 'lapse of judgment' but which, having regard to your plea, rightly is recognised as you driving in a manner which fell far below the standard to be expected of the ordinary driver such that it was obvious to you that your driving fell far below that standard, can be summarised shortly: It has devastated the life of a decent, honest, hard working man and his family."
The judge went on to recite the devastating injuries that were caused. He continued:
"In mitigation, you have, at albeit virtually the last possible point, pleaded guilty ... It is plain from the outset that you have shown remorse for the consequences of what you have done. I think it right that you are very unlikely to trouble the courts again. You were a young driver at the time but that is all the more reason for younger drivers to be careful ... I am compelled to take into account the delay, which is no fault of your own, but not the delay that has resulted from your decision to run your case through to trial. ... ... I sentence you for the crime you have committed rather than the consequences of your crime. Nevertheless, this was a grievous piece of dangerous driving. It is right that there were no aggravating features. There was no evidence of excessive speed apart from any excessive speed that may have caused you to go over the white line in the first place. There is no evidence of drink or drugs. This was not dangerous driving in the course of a police chase. This was not a persistent course of driving over a long period of time or distance, and you are not a man who has a poor driving record. Nevertheless, a custodial sentence is inevitable."
[5]The appellant had not previously appeared before the courts. He was born in June 1987. We have seen a pre-sentence report dated 26th October 2007. In addition we have read the character references and other materials that were before the judge below.[6]Mr Jarvis in succinct and well presented submissions contends that the sentence imposed was manifestly excessive. He argues that the only aggravating feature, the injuries sustained by Mr Williams, although important did not justify the imposition of such a lengthy term of imprisonment. He referred by way of comparison to the level of sentencing in the guideline cases of Cooksley and Richardson where the offence is causing death by dangerous driving. He referred to the decision in Stokes [1998] 1 Cr.App.R 282. He contends that the judge indicated that he took account of the appellant's guilty plea, remorse, age, driving inexperience, good character and the delay, but did not in all the circumstances give sufficient credit for these mitigating features when arriving at the sentence imposed. Mr Jarvis draws attention to the fact that the appellant's manager at work insisted that the appellant take a company vehicle which the appellant had never driven before, rather than allowing him to drive his own vehicle. Thus, submits Mr Jarvis, the appellant was inexperienced and driving an unfamiliar car.[7]We have carefully considered these submissions. We recognise at the outset the extremely severe injuries sustained by Mr Williams. The consequences for Mr Williams were appalling. His life has been changed forever. This court has the utmost sympathy for him. A case such as the present constitutes a difficult problem for any sentencing judge. The criminality of the driving itself was at the lower end of the scale, although this was a bad piece of driving. What makes the instant case particularly grave is the fact that as a result of the dangerous driving Mr Williams suffered extremely severe injuries with appalling consequences. We bear in mind the maximum sentence of two years laid down by Parliament. The learned judge was right to take into account the consequences of this dangerous driving. It was for that reason that it was necessary to pass a custodial sentence.[8]We have been persuaded, having regard to the authorities and in particular the decisions of this court in Stokes [1998] 1 Cr.App.R 282 and Stevens [2003] EWCA Crim. 2823 that when the difficult balance is struck between the aggravating factor (the appalling consequences for Mr Williams) and the mitigating factors listed above, that the sentence of 13 months was out of line with the authorities. In all the circumstances of this difficult case, we propose to substitute for the sentence of 13 months' detention a sentence of eight months' detention. To this extent only this appeal is allowed.

Cited in 1 later judgment