Geale, R. v [2012] EWCA Crim 2663

[2012] EWCA Crim 2663Case No 2012/3817/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 9 November 2012
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE HICKINBOTTOM
MR JUSTICE STUART-SMITH
Between
R E G I N ACrownv
Between
MICHAEL GEALE
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)
Miss K Dempsey appeared for AppellantMr A Chalk appeared for Crown

J U D G M E N T (As Approved)

[1]MR JUSTICE HICKINBOTTOM: On any view this case is tragic, involving, as it does, the death of a 10-year-old schoolboy, killed as a result of the carelessness of the Appellant Michael Geale, a professional driver, whilst driving a coach. As a result of this incident, the Appellant is devastated; but the devastation caused to the boy's family is beyond contemplation. Whilst condolences can only pale beside their grief, we do express our profound sympathy to them.[2]The tragedy unfolded thus. At about 5 o'clock in the afternoon on 23 May 2011, Yat Yeung Tin, then aged 10 years, was walking home from school, westwards along Kensington Gore. He walked along the south side of that road, and past the Royal Albert Hall. As he crossed Kensington Gore Westside, the western access road to the Albert Hall, he was struck by a coach driven by the Appellant.[3]The Appellant had been driving his coach also westwards along Kensington Gore. Ignoring the eastbound bus lane, the carriageway of that road has one marked lane each way. However, as the Appellant approached the Albert Hall, a white van, travelling in the same direction as he, was in the same lane and on his outside. The van slowed down, but the Appellant continued to move forward on its inside, before turning left into the access road. The effect of that manoeuvre was twofold. First, the Appellant was distracted by the van, as he later admitted. Second, the coach was incorrectly positioned on entry to the junction. Without pulling out before turning left, and giving the corner a wide birth, the corner was too tight to enable the coach to remain on the correct side of the access road. It was forced to butt into the other side of that road, before returning to the correct lane. This meant that the Appellant was preoccupied with possible traffic coming down the access road to get onto the main road, and there was a significant blind spot on the nearside of the coach. The manoeuvre was consequently inherently unsafe.[4]During the course of it, Yat Tin fell into that blind spot. An eyewitness described him as looking straight ahead, as he was crossing the road. The Appellant saw him when he was about one foot away from the front of the coach; and, although the coach was going relatively slowly - no more than 10 mph - the Appellant was unable to avoid a collision. The young boy fell to the floor, and was unfortunately run over by the rear wheels of the coach. That collision caused him catastrophic injuries, and he was pronounced dead a few minutes later when an ambulance arrived at the scene.[5]The Appellant immediately accepted that he had been distracted "for a split second" by the white van, and had turned into the access road because he thought it was clear. He pleaded guilty to causing death by careless driving, at the first opportunity. The basis of plea indicated that he was devastated by the accident, which is also the tenor of the pre-sentence report in which he expresses deep regret, remorse and an overwhelming feeling of guilt. We have no doubt that those expressions are genuine.[6]On 31 May 2012 in the Crown Court at Southwark, His Honour Judge Robbins QC sentenced him to 12 months' imprisonment suspended for two years with a requirement for performing unpaid work. The Appellant does not seek to challenge that part of the sentence. However, the judge also imposed a three year period of disqualification from driving. With the leave of the single judge, the Appellant now appeals against only that period of disqualification, which he contends is in all the circumstances manifestly excessive.[7]The Appellant was born on 2 June 1958, and was therefore 53 years of age at the time of the incident. Following training in the Army, he became a car mechanic and has spent most of his adult life as a car mechanic or driver. He began driving coaches in 2007. He has no previous convictions, save for one for speeding some six years ago. As a coach driver, he drove perhaps 80,000 miles per year; and the various references, which were before the sentencing judge and which we have seen, speak highly of his driving. One, which is typical, says that he "has always proved a safe, reliable driver who has always shown considerable care to both our passengers and other road users…. [He] is a skilled and professional driver who has a good track record…".[8]Given his good driving record over many years and the fact that this tragic event resulted from a short lapse of concentration on his part, the author of the pre-sentence report assessed him as posing a low risk of reoffending.[9]In mitigation before the sentencing judge and repeated before us, Miss Dempsey on the Appellant's behalf prayed in aid his good driving record over many years, the positive character references to which we have already referred, and the fact that the Appellant and his wife both have medical conditions. The Appellant has a chronic blood disorder, which requires regular treatment; and his wife unfortunately suffers from depression. In addition, Miss Dempsey relied upon the particular financial hardship that the period of disqualification has caused, because of the Appellant's trade as a driver and his age. With all that mitigation, she contended that a three year period of disqualification from driving was manifestly excessive.[10]By section 34 of the Road Traffic Offenders Act 1988, where a person is convicted of causing death by careless driving, the court must disqualify that person from driving for a minimum period of 12 months unless there are exceptional circumstances for not doing so. It is rightly not suggested that there are such circumstances in the Appellant's case. Neither the statutory provisions nor the Sentencing Guideline Council's Definitive Guideline on Causing Death by Driving identifies any other criteria for assessing the appropriate length of disqualification, except the guideline states that the minimum period should be at least as long as any custodial sentence imposed. As the sentence in this case was 12 months - the same as the statutory minimum period of disqualification - that is of no assistance in this case.[11]We have been referred by Counsel to a number of authorities, many of which, if we may say so, appear to us to be fact specific and hence of very limited assistance. However, Miss Dempsey does rely upon this passage from the judgment of this court in Crew [2009] EWCA Crim 2851 in which Griffith Williams J said (at paragraph 16):
"… The Definitive Guideline provides no guidance as to the length of disqualification and so it is important to bear in mind, first, the risk represented by the offender is reflected by the level of culpability which attaches to his driving, and, secondly, the main purpose of disqualification is forward looking and preventive rather than backward looking. In that regard the [offender’s] previous unblemished driving record is clearly an important factor as is the absence of aggravating factors such as speed."
Cully [2005] EWCA Crim 2483 is to similar effect.[12]We respectfully agree that the main purpose of disqualification is to protect the public from the risk posed by an offender driving, and we agree that, where that risk is very low, a lengthy period of disqualification may be inappropriate, particularly where, as here, the offender is dependent upon driving for his livelihood and hence a lengthy period of driving disqualification will put particular financial strains upon him.[13]However, such risk is not the only relevant criterion for the assessment of length of the disqualification period. In addition, there is or may be an element of punishment; as is apparent from the fact that, even where the future risk is nil, the statutory provisions require a 12 month minimum period of disqualification. Furthermore, paragraph 30 of the Definitive Guideline makes clear that "disqualification is a mandatory part of the sentence, subject to the usual very limited exception, and therefore an important element of the overall punishment for the offence." When considering whether the length of the period disqualification is manifestly excessive, one therefore has to consider it in the context of the sentence imposed and the ancillary orders as a whole.[14]The sentencing judge considered that the Appellant's offence fell between categories 2 and 3 for death by careless driving in the guideline, so far as culpability is concerned, i.e. between "careless or inconsiderate driving arising from momentary inattention with no aggravating factors" and "other cases of careless or inconsiderate driving". Miss Dempsey does not seek to controvert that. We agree that the nature of the Appellant's driving went beyond mere momentary inattention; because, after he had been distracted by the white van, he continued his inherently unsafe manoeuvre which led both to the coach being in the path of any oncoming traffic in the access road (which itself provided a further distraction for him), and to the schoolboy being in a blind spot and unnoticed by him. That in turn led to the boy falling underneath the back wheels of the coach. Furthermore, this unsafe manoeuvre was performed by the driver of a large coach, which is inherently more likely to cause damage if unsafely manoeuvred. A particularly high level of care is demanded of the drivers of such vehicles.[15]Therefore, whilst the culpability of the Appellant may have been low, it was not the lowest. Furthermore, we note that the author of the pre-sentence report assessed the risk of the Appellant offending further as low, not very low, which is an assessment open to such an officer. However, we also agree with the judge that, otherwise, there were no other aggravating factors. The death is of course an inherent part of the offence.[16]In all of the circumstances, we consider the judge was correct in considering that the minimum period of disqualification would not be appropriate. Again, Miss Dempsey does not seek to argue otherwise. However, given the Appellant's long good driving record and his age, and the fact that as a professional driver a disqualification will impose particular financial hardship upon him, we also consider that the period of three years imposed is unnecessarily long for the protection of the public and manifestly excessive in all of the circumstances. We consider that the appropriate period is one of two years.[17]We shall therefore allow the appeal, quash the order for disqualification from driving from a period of three years and replace it with a period of two years. The other orders made by the judge, which are not the subject of this appeal, shall stand.