Holman, R. v [2010] EWCA Crim 107

Case No 2009/03889/A9[2010] EWCA Crim 107
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 21 January 2010
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE OWEN
and
THE RECORDER OF LONDON
(Sitting as a Judge of the Court of Appeal Criminal Division)
__________________
- v -
Between
OLIVER DAVID HOLMAN__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone 020 7404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)__________________Mr N Tucker appeared for ApplicantMiss E Sproson appeared for Crown____________________J U D G M E N T
[1]This application for leave to appeal against sentence has been referred to the court by the Registrar in the following circumstances.[2]In December 2007 the applicant was involved in a road traffic accident which caused the tragic death of the deceased in circumstances to which we shall turn in a moment. He was charged with the offence of causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988. At the time of the road traffic accident the only alternative verdict available to a jury trying the charge of causing death by dangerous driving was the summary offence of careless driving. The new offence of causing death by careless or inconsiderate driving, inserted as section 2B of the Road Traffic Act 1988, was not to come into force until 18 August 2008.[3]Following a trial in June 2009, before His Honour Judge Boney QC and a jury, at the Winchester Crown Court, the applicant was found not guilty of causing death by dangerous driving, and guilty of the only alternative, careless driving. On 3 July 2009, Judge Boney imposed upon the applicant a fine of £3,500 to be paid at the rate of £500 per month with a default period (in default of any one of those payments) of six months' detention. He was also disqualified from driving for a period of two years.[4]The maximum period which could have been imposed for a fine of that level in default of payment was, under section 139(4) of the Powers of Criminal Courts (Sentencing) Act 2000, three months' detention. Although on 24 August 2009 His Honour Judge Cutler purported to correct the error under section 155 of the 2000 Act, that correction was ineffective since it was not made by the sentencing judge. Accordingly, the Registrar of Criminal Appeals has referred the application to the full court.[5]We have had the benefit of a most helpful Advice provided by Mr Tucker on the applicant's behalf. In it he has set out all the material which is relevant to the sentencing exercise with which Judge Boney was faced. We grant leave to appeal against the fine imposed, its default period, and the period of two years' disqualification from driving.[6]The road traffic accident occurred as follows. At about 6pm on Wednesday 19 December 2007 the appellant (as he now is), who was then aged 18, was driving a Nissan Micra motor car along the A30 ringway, a road which runs roughly west to east to the south of Basingstoke. He was travelling westwards from Basingstoke towards Winchester Road roundabout. He was carrying two passengers, Aaron Green and Kerry Kennedy. The three young people were on their way to a Harvester's restaurant. The appellant had held a full driving licence for a period of only six months. He was described by Aaron Green, who had frequently been a passenger in his car, as "a safe driver", and by Miss Kennedy as "a good driver".[7]It appears that the appellant was not familiar with the ring road. It is, in fact, an A road, a single carriageway with one lane in each direction. The speed limit is 60mph. At the time of the collision, the weather was cold and dry, but the road surface was wet. There was street lighting on the north side of the carriageway. In the appellant's direction of travel there was a long, sweeping, inverted S-bend to be negotiated.[8]As he approached a left-hand bend, the appellant, thinking that the road ahead of him was straight, moved out to overtake. His speed, on the jury's verdict, must be regarded as having been reasonable. However, his manoeuvre brought him into the path of two oncoming vehicles of whose presence he had been unaware. The first was driven by Gillian Duncan, who managed to pull to the nearside to avoid a collision. But the effect of her manoeuvre was to expose the vehicle following her, a red Renault car driven by Mr Anthony Short, to a head-on collision with the appellant's Micra. Unfortunately, Mr Short was not wearing a seat belt. The effect of the collision was that he was thrown from the vehicle and suffered fatal injuries.[9]According to Mr Tucker, who represented the appellant at trial, following the verdict of the jury there was a visible and audible sign of displeasure from the distraught family of the deceased. Wisely, the judge adjourned for a period of time. As Mr Tucker now acknowledges, that time was not used to provide the judge with the material he needed in order to assess the appropriate level of fine which would have to be imposed. The judge was not given the assistance he should.[10]In his sentencing remarks the judge said that cases of sudden death on a road as a result of one party's bad driving always carried a high charge of emotion. On the one hand there was a grieving family. On the other there was the appellant who was of good character but inexperienced, who made a bad momentary error of judgment with devastating results. Having heard the evidence, the judge concluded that there was no speeding, no drinking, and no "fooling around" in the car. He proposed to give credit for the appellant's early indication of a plea of guilty. However, the judge remarked that the appellant had been guilty of "about as bad an offence of careless driving as these courts ever see".[11]The maximum fine which the judge could have imposed was, at level 5, £5,000. In view of the discount the judge had informed the appellant he would give, the maximum was reduced to £3,500. Mr Tucker submits that the fine imposed was manifestly excessive, having regard to the relevant sentencing guidelines, to the appellant's personal mitigation and his financial circumstances.[12]Section 164(1) of the Criminal Justice Act 2003 required the court to enquire into the financial circumstances of the offender. By subsection (2) the amount of any fine must be such as, in the opinion of the court, reflects the seriousness of the offence. Subsection (3) reads as follows:
"In fixing the amount of any fine to be imposed on an offender .... a court must take into account the circumstances of the case including, among other things, the financial circumstances of the offender so far as they are known, or appear, to the court."
This the judge did. After statutory deductions, the appellant earned £800 per month. His net weekly income was therefore about £200.[13]On 4 August 2008, the Sentencing Guidelines Council published the Magistrates' Court Sentencing Guidelines, which therefore applied to the imposition of fines for the offence of careless driving. Since it was a summary offence, there was no distinction to be made between the imposition of a fine in the Crown Court for this offence and in the magistrates' court. For careless driving of the quality the judge was considering, Mr Tucker submits, and we agree, that the guideline fine was Band C, that is the equivalent of 125-175% of the offender's net weekly income.[14]However, the guideline was published without regard to the aggravating feature that death resulted. On 15 July 2008, the Sentencing Guidelines Council published its guideline Causing Death by Driving. An offence of causing death by careless or inconsiderate driving under the amended section 2B of the Road Traffic Act 1988, with the features identified in the present case, would now attract in the Crown Court a recommended starting point of 15 months' custody, with a range of 36 weeks to three years' imprisonment. As we have observed, however, section 2B was not in force when the offence of careless driving was committed.[15]How then was the judge to reflect in a fine the aggravating feature that death resulted from the appellant's bad driving? Was he to apply the guideline for careless driving, with an uplift? Or was he to start with the maximum and, subject to the appellant's means, discount it for the early indication of plea and personal mitigation?[16]In our judgment the maximum fine of £5,000 should be reserved for the worst offences of careless driving by those who plainly have the means to pay. Here the quality of the appellant's driving was not, with respect to the judge, the worst careless driving which the courts ever see for the reasons which the judge gave in his sentencing remarks. The appellant was a young and inexperienced driver who made a poor decision. There were none of the aggravating features commonly seen in such circumstances. In particular, there was no element of showing off; nor was drink involved. Furthermore, he was a hard-working young man with no previous convictions, whose bitter experience caused him to express genuine sorrow and regret.[17]The object of the guideline to assist the magistrates' court with fines in such circumstances was to bring some parity between those to whom, by reason of wealth, a fine is little more than a minor inconvenience and those on whom a fine would make a real impact. The appropriate course, which we have no doubt the judge would have adopted had his attention been drawn to the guideline, was to follow the guideline with a very significant uplift for the aggravating feature of the appalling consequences of the appellant's careless driving.[18]After taking into account the early indication of a preparedness to plead guilty to the offence of which he was convicted, for the mitigating features relevant to the offence itself, and to the personal mitigation available to the appellant, in our view the appropriate fine would have been £1,000.[19]We take the view, having regard to the appellant's income, that the fine should be paid at the rate of £200 per calendar month. The period to be served in default of any one of those instalments is 28 days' custody. That is the penalty which we shall impose in substitution for the judge's order. We emphasise that in no sense was a fine for careless driving when death resulted ever designed to place a monetary value on that loss. The policy was, and is, to bring fairness and proportionality to the sentence according to the seriousness of the offence and the comparative means of offenders.[20]We turn finally to the length of the two year disqualification from driving imposed on the appellant. In short, Mr Tucker submits that this is a young man who is highly unlikely ever to make the same mistake again.[21]We accept his submission that one of the principal objectives of disqualification from driving in such cases is the protection of the public from further bad driving. It is by no means, however, the only objective. There are occasions on which it is appropriate to deprive the driver of his licence for the purpose of imposing mature reflection on the consequences of his offence. In other words, it is a personal deterrent.[22]Mr Tucker relies on the decision of the court in R v Mitchell [2003] EWCA Crim 2580, in which the court had to consider the appropriate length of disqualification upon a driver who collided with a drunken man who had wandered into his path. In that case the court reduced the disqualification from two years to twelve months. We do not consider that there is the remotest factual comparison to be made between that case and this.[23]We are not persuaded that the judge misjudged the level of disqualification. We shall leave it undisturbed. ____________________________________

Cited in 1 later judgment