Carswell, R. v [2009] EWCA Crim 1848

Case No 200902487/A3[2009] EWCA Crim 1848
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 26 August 2009
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE TEARE
HIS HONOUR JUDGE ROOK QC
Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
IAIN DONALD CARSWELL
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 7404 1424(Official Shorthand Writers to the Court)
Mr A Malik appeared for Appellant
J U D G M E N T

MR JUSTICE TEARE: This is an appeal brought with the leave of the single judge against sentence.

[2]On 17 March 2009 at the Crown Court at Guildford the appellant pleaded guilty to causing death by dangerous driving. On 21 April 2009 he was sentenced to imprisonment for four years, disqualified from driving for five years and thereafter ordered to take an extended test.[3]The facts of this case are these. At 10 past seven in the morning on 10 June 2008 the appellant was driving his 17-tonne lorry on the A31 dual carriageway approaching Guildford. The appellant was driving at about 52 miles per hour which is at or about the speed limit on that road for lorries. The deceased, Natalie Hadley, a young woman much loved by her family and friends, was driving her mini in the same direction but the appellant failed to notice that her car was in a stationary queue of traffic ahead of him and he drove into the back of the mini which was forced down the road into the car in front before it spun across into the next lane and was struck again by a van in that lane. As a result Miss Hadley received a serious head injury from which she subsequently died.[4]The subsequent investigation revealed that the appellant had a personal mobile phone and a work's mobile phone in the cab of his lorry and that at the time of the collision he had been speaking to a work colleague on a hands free phone. This was lawful. At the scene of the accident the appellant explained he had been adjusting his sun visor at the time of the accident. He repeated that assertion in interview following his arrest.[5]The sentencing guideline for dangerous driving offences provides starting points for three levels of offence. Level 1 is the most serious and level 3 is the least serious. Level 3 is described as follows:
"Driving that created a significant risk of danger."
[6]The sentencing judge assessed the culpability of the appellant as follows. He said:
"In sentencing you the court has to have regard to your criminal culpability and that really is because you did not appreciate what was happening ahead of you, for whatever reason, as I have already mentioned. But you created a significant risk of danger that, tragically, resulted, on this occasion, in the loss of life."
[7]That risk arose because the appellant did not anticipate the queue ahead of him and did not appreciate it was there until it was too late. Thus the offence on the judge's assessment of culpability appears to fall into level 3.[8]Level 2 is driving that creates a substantial risk of danger and is frequently characterised by grossly excessive speed, a gross avoidable distraction, such as reading or composing text messages, or driving whilst impaired by drink or drugs. None of those apply in this case. The appellant was using a hands free telephone, but that was lawful and not within level 2. It is accepted that it was an avoidable distraction but it cannot be said to be a gross avoidable distraction within level 2. Thus the recommended starting point under the sentencing guidelines is three years with a range of two to five years.[9]We have carefully read the moving statement of the victim's mother. Notwithstanding the dreadful loss which this incident of dangerous driving has caused to Natalie's family, there are matters which can properly be advanced in mitigation. The appellant had a good driving record and employment record. He had been driving heavy goods vehicles for a number of years. He was aged 33 and had no previous convictions. It is quite plain from the medical records and from the pre-sentence report that the appellant has been greatly affected by this incident. Not only does he suffer from post-traumatic stress disorder but he is clearly full of remorse. He pleaded guilty to this offence. The circumstances of the offence and of the offender do not suggest any aggravating factor which would justify a sentence in excess of the recommended starting point of three years. On the contrary, they indicate that a sentence less than three years was appropriate to reflect the appellant's plea of guilty, his genuine remorse and his previous good character.[10]The sentencing judge's sentence of four years is not, therefore, consistent with the sentencing guidelines. The judge said that he had regard to them. He did not say that there were reasons for departing from them. In our judgment, there are no reasons for departing from them.[11]We consider that the sentence indicated by the guidelines for this offence and allowing for the personal mitigation available to the appellant is two years. That is reached by assessing this case as a level 3 case with a recommended starting point of three years and reducing that to two years to take account of the mitigation. The period of disqualification ordered was five years. We consider that in circumstances where the sentence is reduced to two years the period of disqualification should also be reduced to three years. We therefore allow the appeal to this extent.