Jayamaha, R. v [2011] EWCA Crim 3158

[2011] EWCA Crim 3158No: 201104932 A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 6th December 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE AIKENS
MR JUSTICE COULSON
HIS HONOUR JUDGE MARTIN STEPHENS QC
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
ISHAN JAYAMAHA
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 7422 6138(Official Shorthand Writers to the Court)
Mr D Bradley & Miss A Arnold appeared for Appellant
J U D G M E N T
[1]MR JUSTICE COULSON: The appellant is 25. On 15th August 2011, at Isleworth Crown Court before His Honour Judge Winstanley and a jury, he was convicted of one charge of dangerous driving and sentenced subsequently to two years' imprisonment. He appeals against that sentence with the leave of the single judge.[2]The facts of the offence are these. At about 2.20 in the afternoon of 1st March 2011 police officers saw the appellant driving a Mercedes C180 Kompressor car. On seeing the police vehicle the appellant picked up speed in what appeared to be an attempt to make off. The officers therefore activated lights and siren and indicated to the appellant to stop, but he did not do so and instead the police pursued him along a number of roads. The appellant overtook vehicles on the wrong side of the road and oncoming vehicles had to swerve out of the way. He drove at about 50 to 60 miles an hour on some residential roads with parked cars on each side. He drove towards a police van, forcing it out of the way. The car was then abandoned by the appellant and his male passenger.[3]Subsequently the appellant approached police officers near a property which was the address of the property that was noted on the registration document of the Mercedes car. He asked the police whether they were looking for him. He was then asked why he had not stopped and he said he was scared and he thought it was to do with his tax disc. He admitted being the driver but he did not answer the questions as to the identity of his passenger. He broadly repeated the same points in interview, although he denied driving at as much as 60 miles a hour. He admitted he did not normally drive like that. He said that he had not forced cars out of the way but he apologised for the incident.[4]In sentencing him to two years' imprisonment, which is the maximum term available for this offence, Judge Winstanley said that although no-one was injured and there was no property damage, this was a serious offence because of the nature of the driving and the period over which it took place. In consequence the judge concluded that an immediate custodial term was appropriate. We respectfully agree with that.[5]The judge then took a 15 month starting point, but he went on to increase the appellant's sentence from 15 months to the maximum of two years because his driving had allowed the escape of his passenger. The judge put that in these terms:
"There was something else connected with that car, something in it or some activity, something you needed to conceal that was indicative of some other criminal offence being committed. I cannot say what, but it was sufficiently serious that you needed to make your escape from the police. To that extent this course of driving in my judgment is aggravated by that interference with the administration of justice."
[6]Of course it is not uncommon in cases of dangerous driving for the driving in question to arise from the defendant's need to cover up or conceal some other criminality, such as drugs in the back of a car or an illegal weapon under the seat, but in the present case there was no evidence of any sort to link the appellant or his passenger with the commission of another criminal offence.[7]In our view, the judge was not entitled to speculate as he did or to increase of the sentence that he imposed on the basis of an inference that was unsupported by the evidence. For that reason therefore we conclude that the judge was wrong in principle to extend the appellant's term from the 15 months that he had originally calculated.[8]Moreover, we consider that the 15 month starting point was itself manifestly excessive: it is well beyond the range of sentences indicated in a number of decisions of this court, where the range is somewhere between three and 12 months. In our view, due to the absence of damage to property, the absence of personal injury and the relatively short duration of the incident, we believe that in the round the appropriate sentence was an immediate custodial term of six months. Accordingly, we quash the term of two years and replace it with one of six months.

LORD JUSTICE AIKENS: Now, Mr Bradley, it has occurred to my Lord, Judge Stephens, that there may be a problem about the representation order and who is going to be paid for this appearance. I do not suppose the authorities will want to pay twice over. Is that a difficulty or have you sorted that difficulty out with Miss Arnold?

[10]MISS ARNOLD: My Lord, I can discuss the matter with Mr Bradley and it may be that we can resolve the matter.

LORD JUSTICE AIKENS: It is resolvable, there is no order that the court needs to make?

[12]MISS ARNOLD: I do not believe that the court would be in a position to resolve the matter. There seems to have been a breakdown in communication.

LORD JUSTICE AIKENS: All right, we will leave it to the two of you to sort out.

[14]MR BRADLEY: Thank you, my Lord, much obliged.