Tyson, R v [2010] EWCA Crim 601

Case No 200906121/A6[2010] EWCA Crim 601
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 3rd March 2010
Strand
London, WC2A 2LL
B e f o r e:
SIR ANTHONY MAY
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE FOSKETT
MRS JUSTICE NICOLA DAVIES DBE
Between
R E G I N ACrownv
Between
MARTIN ROBERT TYSON
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 P Johnson appeared for Appellant
J U D G M E N T
[1]MR JUSTICE FOSKETT: On 14th October 2009 at Teesside Crown Court the appellant pleaded guilty to causing death by careless driving. The matter was put back for reports and on 4th November 2009 he was sentenced by His Honour Judge Taylor to 3 years' imprisonment, disqualified from driving for 3 years and ordered to take an extended driving before obtaining a further licence. There is no appeal against the order for disqualification, but with the permission of the single judge the appellant challenges the sentence of imprisonment.[2]As with any case involving any death there is a human tragedy behind the case.[3]The deceased was 71-year-old Elizabeth Sugden. She and her husband were first married in 1955, divorced some 6 or 7 years later, but renewed their relationship in 2000 after the death of Mr Sugden's second wife. That what became their second partnership should be destroyed in the way that it was is particularly poignant given that history.[4]Mr Sugden was deeply affected by Elizabeth's death and in his victim impact statement dated 23rd July 2009 he said that he had lost a wife and a friend and he said "my life has been destroyed by this incident. It takes all of my courage and determination to continue getting up in the morning. My heart is broken and nothing in this life will ever mend it."[5]Whilst this appeal is purely about the length of the prison sentence imposed on the appellant, it is perhaps worth noting in passing the observations of Hughes LJ, (Vice-President of the Court of Appeal Criminal Division) in R v Odedara[2009] EWCA Crim 2828. In the context of a case of causing death by careless driving in which the issue was whether the sentence of imprisonment was appropriate at all, he said this:
"The impact on the bereaved is the same whether they are parents, spouses, children or friends. Such people cope as best they can with a sudden and unexpected loss of a loved one. Those who have to cope with this kind of shattering blow may well be tempted to think, at least at the height of their loss, that imprisonment will provide some kind of solace but it rarely does and it is not its principal purpose. No sentence can bring back the departed; no sentence can or should attempt to put a price on a life."
[6]On the morning of 10th December 2008, Mrs Sugden left her home to walk a dog that belonged to one of her friends. She did this regularly and her normal route was to go to a recreation ground and then on to Carlton Marsh. In order to get to Carlton Marsh she had to cross over the four lanes of the A1041 trunk road. She would normally make the dog sit at the side of the road before beginning to cross. There was evidence that although the dog was obedient it could pull on the lead.[7]At about 10.00 am, having been to the recreation ground, Mrs Sugden put the dog back on the lead and approached the trunk road. At the point where the accident occurred the road was straight. There were two lanes in each direction. There was no central crash barrier and the speed limit was 60 miles per hour. The weather was fine and visibility was good. With the dog on the lead, Mrs Sugden started to cross the road. The appellant was riding his powerful motor cycle in the east bound direction. He only had a provisional licence, had had no formal lessons and was uninsured. He said he was driving at about 70 miles per hour and saw Mrs Sugden crossing the road. She appeared to be quite a fair bit away and was about a quarter of the way across the road on the west bound carriageway. He said that when she got to the halfway position he believed she had seen him and would wait in the middle of the road and allow him to pass before crossing the east bound lane. He then saw her continue across the road into the same lane that he was travelling in. He said that he considered braking but decided not to because he would have lost control of the motor cycle. He said instead he sought to move into the left hand lane but at this point he hit Mrs Sugden and the dog. The accident investigation report confirmed that the collision took place in the middle of the left hand lane and at the point of impact the appellant had been travelling at a speed in excess of 75 miles per hour. Mr Sugden died from severe head injuries. The dog was killed instantly by the impact. The appellant's motor cycle came to rest 177 metres from the point of impact. It should be observed one of the eye witnesses to the accident, the driver of one of the vehicles following the appellant's motor cycle, who was an experienced driver himself, said that whilst the appellant was riding quickly, he would not describe the riding as reckless. When charged the appellant said:
"I'm sorry for the victim's family."
[8]There is no doubt that the appellant is genuinely remorseful about what occurred. When addressing him at the time of sentencing

the judge said this:

"I accept that you are genuinely remorseful for what happened and in your letter you ask through me for condolences and apologies to be sent to the family of the deceased."
We too have read that letter. It was well expressed, well intentioned and plainly a genuine expression of his feelings. It did not seek to minimise his responsibility. Unlike some in this situation, he did not leave the scene of the accident. His remorse and plea guilty were, of course, significant mitigating factors. The plea of guilty entitled him to full credit.[9]As the judge observed, the aggravating features were the excessive speed, the conscious decision not to brake, the fact that he was not insured or held a licence, a position that had obtained for many years. His record in relation to driving matters was not good. He had 30 previous convictions for 71 offences which including taking a vehicle without consent on three occasions and on one occasion driving dangerously, driving whilst disqualified, driving with excess alcohol, driving without a licence on three occasions and driving without insurance on three occasions. However, his last driving related matter in 2003 and as the pre-sentence report recorded, his offending frequency has reduced significantly over the last 5 years.[10]Counsel for the prosecution did make reference to the Sentencing Guidelines Council guideline for offences of this nature, so it is to be presumed the judge was familiar with them, although he did not refer to them specifically in his sentencing remarks.[11]The first point to note is that the maximum penalty on indictment is 5 years' imprisonment. Given that the statutory maximum is generally reserved for the worst cases, Mr Johnson has argued that given the full credit for the plea of guilty the judge must have taken four-and-a-half years as the starting point, if there had been a trial and that that was too close to the maximum penalty.[12]The second point relates to the guidelines themselves. At paragraph 5 the following is stated:
"Since the maximum sentence has been set at 5 years imprisonment, the sentence ranges are generally lower for this offence than for the offences of causing death by dangerous driving or causing death by careless driving under the influence, for which the maximum sentence is 14 years imprisonment. However, it is unavoidable that some cases will be on the borderline between dangerous and careless driving, or may involve a number of factors that significantly increase the seriousness of an offence. As a result, the guideline for this offence identifies three levels of seriousness, the range for the highest of which overlaps with ranges for the lowest level of seriousness for causing death by dangerous driving."
The following paragraph says this:
"The three levels of seriousness are defined by the degree of carelessness involved in the standard of driving. The most serious level for this offence is where the offender's driving fell not that far short of dangerous."
Given the speed and the manner of the appellant's driving, there was little doubt that this case comes within that category. For the first-time offender following a trial the guidelines suggest a starting point of 15 months' imprisonment and a sentencing range of 36 weeks to 3 years custody. Given that the appellant was not a first-time offender, there could be no complaint with a starting point somewhere above the highest level of the range, the questions is whether it was legitimate to go up as far as four-and-a-half years. Whilst we appreciate that the judge knew the road in question and would therefore have had a good grasp of how the appellant's driving of the motor cycle should be judged, we think that some account should have been given to the view of the experienced motorist to whose statement we have already referred, a statement plainly regarded as of significance by the prosecution when deciding on the charge to prefer given the exchange between the judge and counsel for the prosecution during the opening. Equally, we think the judge had to ask himself the question whether this truly nearly was the worst case of careless driving to be imagined. Bad though it was, we do not think it could be so described, notwithstanding the tragic consequences occasioned by it.[13]In our judgment, doing our best to achieve the impossible, namely deciding on the appropriate starting point in a case of this nature, that starting point should have been in the region of three to three-and-a-half years which, giving full credit for the plea of guilty and all the other mitigating factors, ought to have been reduced to 2 years. It is that sentence which we substitute for that imposed by the judge. To that extent and on that basis this appeal is allowed.