Bowyer, R v [2009] EWCA Crim 1112

Case No 200806407/A6[2009] EWCA Crim 1112
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 12th May 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DYSON
MR JUSTICE OUSELEY
THE RECORDER OF KINGSTON-UPON-HULL
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
PETER EDWARD BOWYER
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr I Lawrie appeared for Applicant
J U D G M E N T

LORD JUSTICE DYSON:

[1]On 17th October 2008 at Salisbury Crown Court, the applicant was convicted of causing death by dangerous driving and on 14th November was sentenced to six-and-a-half years' imprisonment, with a direction that 28 days spent on remand should count towards the sentence. He was also disqualified from driving for 7 years. He applies for an extension of time of two weeks in which to renew his application for leave to appeal against sentence after refusal by the single judge. We grant the extension of time.[2]The facts are these. On 24th April 2007 the applicant was driving his Peugeot 306 motorcar on A roads in Wiltshire. He and a Mr Hooper who was driving a Ford Mondeo, were racing each other. They were driving very close to each other and overtaking each other at speeds in excess of 80 miles per hour, over a 4.7 mile route which included two major roundabouts.

The judge described the course of the driving in his sentencing remarks in this way:

"... you and Mr Hooper were driving aggressively and competitively over a number of miles on the A350 and the A36 in Wiltshire. You did not know each other but that did not prevent either of you driving in such a dangerous manner. The driving of both of you caused the death of Mr Corr."
That came about, we interpose, because the chase ended shortly after they passed a roundabout when Mr Hooper, who was at that stage in front of the applicant, overtook a lorry. As a result he collided with an oncoming car which was being driven by a man called Corr. Both Mr Hooper and Mr Corr were killed. Three other oncoming cars were also involved in the incident. After the collision the applicant also overtook the lorry but managed to avoid hitting any vehicles. Other drivers also stopped and when they spoke to the applicant, he placed the blame for the accident emphatically on Mr Hooper.[4]Returning to the judge's sentencing remarks, he said:
"The driving started out with you coming out of Westbury, going towards Warminster on the A350 driving a red Peugeot with Mr Hooper behind in a Ford Mondeo. By the time the first witness saw you and the Mondeo, the Mondeo had overtaken your vehicle and you were following having taken up the chase. Both of you drove past Mr Bull who to his alarm noticed you almost bumper to bumper with the car in front at a speed in excess of 80 miles per hour. Thereafter, the two of you continued to drive in this fashion. You, overtaking the Mondeo at one point after what is called the Granada roundabout only to be overtaken by the Mondeo. A manoeuvre which at that stage in fact almost forced you off the road travelling in the same direction to your left and a van off the road travelling in the opposite direction to its left. After being overtaken, you took up the chase again, driving at fast speeds well in excess of 80 miles an hour at time. Both your vehicle and the Mondeo then approached the next roundabout. I will call it the Clay Hill roundabout. The driving of the vehicles was witnessed by two men driving a dustcart and a passenger in the dustcart, that vehicle was overtaken by the Mondeo and your red Peugeot and witnessed again by another man approaching the same roundabout from your left. Both vehicles took the roundabout at speed. Described as almost bumper to bumper and the witness coming to the roundabout from your left had the clear impression, correct in my judgment, that the two vehicles were driving against each other with no regard for other road users. Witnesses described their feelings of apprehension at what they saw in terms of the driving. The last witness to see your vehicle travelling in the same direction as you was the witness that I have just referred to. Identifying the fact that neither vehicle slowed down for the roundabout, less than two feet between the two vehicles and travelling at an excessive speed and racing. As he went across the round about and looked to the left, that is in your direction of travel, he saw both vehicles travelling up the hill and away in the same manner, and same distance, you behind the Mondeo and shortly that there was the devastating accident that I have just referred to."
[5]The reason why we have referred at some length to what the judge said about this driving is because Mr Lawrie, who has appeared before us this morning and argued this application with considerable skill and cogency, submits that, although the driving at times over this distance of 4.7 miles satisfied the description given by the judge, there were intervals during this period of driving when Mr Bowyer and Mr Hooper were driving in a far less dangerous manner, if dangerous at all. This is relevant to an assessment of how bad a case of competitive racing this was. In our judgment, this court should respect the assessment made by the judge in his sentencing remarks. There had been a trial and the judge had the benefit of making his own assessment of the driving. It is one with which this court should not interfere. That is, as we have said, the reason why we have referred in some detail to the description given by the judge.[6]Mr Lawrie submits that the sentence of six-and-a-half years was manifestly excessive. He also submits that the period of disqualification was too long.[7]The applicant was born in May 1983. He has two previous convictions which are of some relevance. The judge described them in his sentencing remarks. In May 2003, for an offence of criminal damage, the applicant was ordered to pay compensation as a result of an incident at traffic lights when he cut across the front of a car driven by his then girlfriend. She drove to a supermarket and he drove into the supermarket and kicked her car door. The other previous conviction was in 2004, when the applicant was convicted of driving without due care and attention and failing to stop after an accident. He failed to give way to an oncoming motor cyclist who was on a roundabout and fell from his motor bike and was injured.[8]There was a pre-sentence report before the court below. The author recognised the inevitability of a custodial sentence and wrote that the applicant continued to deny committing the offence but said that he did appear to be sorry that two men had died.[9]After reciting the facts of the case in the way we have described, and referring to the two previous conviction,

the judge said this:

"There are serious aggravating features. Features which make this case very serious indeed and in the main, they are the aggressive, competitive driving and racing over a distance of a number of miles without any regard to the safety of other users causing apprehension and fear... That sentence of imprisonment in my judgment falls within a bracket which in legal terms is a bracket described as level 2 in the Sentencing Guidelines. I have taken account of those guidelines. It is, in my judgment, at the top end of those guidelines and the sentence is six-and-a-half years' imprisonment and you will be disqualified from driving for 7 years."
[10]Mr Lawrie accepts that this is a level 2 case but he submits that there were no significant additional features of the driving which took the sentence above the entry point of 5 years, to justify raising the sentence to one of six-and-a-half years. He submits that it is arguable that the judge in effect double counted by taking the competitive aggressive driving into account as a serious aggravating factor, because it was that very feature of the driving which justified locating this case in level 2 in the first place.[11]The Sentencing Guidelines Council guidelines provide that there are three levels of seriousness for the purposes of sentencing for offences of causing death by dangerous driving. The level 2 is in these terms:
"Driving that created a substantial risk of danger and is likely to be characterised by greatly excessive speed, racing or competitive driving against another driver or..."
As we have said, the starting point for a level 2 case is 5 years custody and the sentencing range is 4 to 7 years custody.[12]The question is whether the judge was right to regard the speeding and the racing or competitive element of this driving as so serious as to place it close to the top of level 2. In reaching a decision on this point, we think that it is necessary to consider the scope of level 1 as well. Level 1 provides:
"The most serious offence is encompassing driving that involves a deliberate decision to ignore or a flagrant disregard for the rules of the road and apparent disregard for the great danger being caused to others. Such offences are likely to be characterised by a prolonged persistent and deliberate course of very bad driving."
It is important to bear in mind the judge's assessment that this was a case of competitive, aggressive driving over a number of miles. It seems to us that, if this case did not fall within level 1 and the judge did not treat it as so falling, then it came very close to the boundary between level 1 and level 2.[13]In these circumstances, it seems to us that the judge was entitled to pass a sentence which was towards the upper end of the sentencing range of 4 to 7 years for level 2 cases. The only way that Mr Lawrie is able to seek to challenge that conclusion is to challenge the judge's assessment of the seriousness and the length of the competitive aggressive driving. In our judgment, there is no real prospect that Mr Lawrie could persuade this court, by reference to the evidence of witnesses at the trial, that the judge's careful description of this driving, based upon his own observation of the witnesses and his assessment of their evidence at the trial, could be dislodged. Accordingly, we refuse this application for leave to appeal against the custodial part of the sentence that was imposed.[14]Mr Lawrie also, however, argues that a 7-year disqualification was too long. He points out that the applicant has a good driving record, apart from the one offence to which we have referred. He drove typically 50,000 miles or so a year. In all the circumstances, Mr Lawrie submits that 7 years was too long. In our judgment, there is force in that submission. It seems to us that it is at any rate arguable that 7 years was too long. If we were dealing with an appeal, we would be disposed to reduce the period to one of 5 years' disqualification. What we propose to do is to give leave to appeal on the disqualification point.[15]Mr Lawrie, are you in a position to conduct an appeal today?[16]MR LAWRIE: My Lord, yes.

LORD JUSTICE DYSON: You have heard what I have just said about the period. Do you want to seek to persuade us to fake a different course?

[18]MR LAWRIE: I cannot better it.

LORD JUSTICE DYSON: So what we propose to do is to give leave to appeal the disqualification decision, to quash the 7-year disqualification and substitute one of 5-years disqualification. To that extent the appeal is allowed.

[20]MR LAWRIE: Thank you my Lord.

LORD JUSTICE DYSON: Do you need a representation order?

[22]MR LAWRIE: Having succeeded to that limited extent, I would respectfully qualify and I would ask for it.

LORD JUSTICE DYSON: Yes, we will grant it to you.

[24]MR LAWRIE: Thank you.