Jenkins, R. v [2015] EWCA Crim 105

[2015] EWCA Crim 105Case No 201403190 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Court of JusticeDate Thursday, 29 January 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TREACY
MRS JUSTICE SWIFT DBE
MR JUSTICE JEREMY BAKER
Between
R E G I N ACrownv
Between
NATHAN JENKINS
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 AR Taylor appeared for Appellant
J U D G M E N T
[1]In April 2014 this offender pleaded guilty to two offences of causing serious injury by dangerous driving. He was sentenced at Newport Crown Court on 6 June 2014. On that occasion the judge imposed two sentences of 3 years' imprisonment to run consecutively, making a total of 6 years. The offender was disqualified from driving for 10 years and until an extended retest was passed. He also acknowledged offences committed on the same occasion of driving otherwise than in accordance with the licence, and using a vehicle without insurance for which no separate penalty was imposed. He had also breached two previously made community orders. These were revoked and no separate penalty was imposed. The single judge has granted leave. A challenge to the sentence passed below relates solely to the term of imprisonment imposed.[2]The facts show that on the evening of 14 May 2013 Mr and Mrs Williams were driving home in a 30 mile per hour zone. They were well within the speed limit. As Mr Williams rounded a bend the appellant's car, coming in the opposite direction, entered Mr Williams' lane and there was a head-on collision. The scene was described as horrific. Both Mr and Mrs Williams were trapped in their vehicle. It took about an hour for the fire brigade to release them. The appellant was also cut free from his vehicle.[3]A police investigation report stated that the damage caused to the vehicles was consistent with the impact having taken place with a closing speed of 90 to 100 miles per hour. CCTV footage captured the appellant's car on its journey before the crash. At that stage it was travelling at 73 miles per hour in a 30 mile an hour zone. It was raining heavily at the time. A taxi driver and an off-duty police officer were driving separately on the same road. They had seen the appellant driving at excessive speeds at some point before the collision. The taxi driver had thought that the appellant was going to kill somebody because of the manner of his driving. The police officer remarked to a colleague on the idiocy of that driving.[4]The injuries suffered by Mr and Mrs Williams were very significant. Mr Williams had a broken arm, an open below the knee fracture to his leg, a fractured ankle which required pinning, two fractured ribs and a fractured hip. Part of his calf muscle had to be removed from his leg and he required skin grafts. He was confined to a wheelchair for a considerable time and at sentence was still only able to walk with a stick.[5]Mrs Williams had a broken arm which required plating. She had seven broken ribs, a punctured lung, internal bleeding, damage to her shoulder, nerve damage and a puncture wound around her knee. She was in intensive care for two days and in a high dependency unit for a further three days.[6]The appellant was taken to hospital as he had been knocked unconscious. He suffered fractured ribs, a fractured leg and hip. He only had a provisional driving licence. He was uninsured. The judge found that he had been showing off and thrill seeking at the time of the collision. He commented on the agony for the occupants of the car who were trapped for almost an hour, and who thought that they were going to die before the fire service cut them out. The offender had been involved in a similar accident not long before this one. He had not learned from that experience.[7]There were victim personal statements before the court. It was plain that the consequences of the collision were long term. The Williams's daughter had had to postpone her wedding for a year because of the crash. Their recovery was prolonged and painful and they were separated from one another for a considerable period: a source of real distress to them. Mr Williams has been transformed from an active outgoing individual to one whose mobility will be significantly affected. He suffers regular nightmares about the accident.[8]Mrs Williams described the trauma in very similar terms. Of particular distress to her is the fact that her breasts are now misshapen and painful. She finds this particularly upsetting. She spoke of continuing pain. Both of them speak of a loss of social confidence and of financial difficulty. As Mrs Williams puts it:
"We do not have our health, we have no vehicle, and we are financially drowning. Life as we knew it has dramatically changed forever."
[9]This appellant, the cause of such misery, is aged 27. He has been a regular attender before the courts, having previously been convicted of some 23 offences. As far as motoring offences are concerned, he was convicted of driving without due care and attention in November 2013, together with other offences including no insurance and failing to stop after an accident. He was fined and disqualified for 4 months on that occasion.[10]The grounds of appeal submit that the judge was wrong to impose consecutive sentences for matters arising out of the same incident. It was also submitted that the judge failed to apply the principle of totality. The judge was criticised for having given too much weight to the sentencing guidelines for causing death by dangerous driving. The 3 years imposed on each count would represent a starting point, prior to guilty plea, of 4½ years' imprisonment for offences for which the statutory available maximum is 5 years. The appellant had pleaded guilty at the Crown Court and the judge had allowed a full one-third discount.[11]In our judgment, following the decision in R v Dewdney [2015] 1 Cr App R (S) 5, which postdated the hearing of this case, the judge was entitled to have regard to the Sentencing Guidelines Council's guideline as long as he had regard to fact that this was not a case involving fatality. In our judgment, this was a very serious case of bad driving. The appellant was showing off. He was driving at a greatly excessive speed in a restricted area. That driving was deliberate and sustained or prolonged. The offence is aggravated by the appellant's previous motoring record, and by the fact that two people were very seriously injured. It is also aggravated by the commission of other offences at the time, namely driving without insurance and driving other than in accordance with the terms of a valid licence.[12]It seems to us that the submission that the judge should not have passed consecutive sentences is correct. In R v Noble [2003] 1 Cr App R (S) 65 consecutive sentences were passed for causing several deaths by dangerous driving in the same incident. Those sentences were quashed. Notwithstanding the numerous deaths, there was a single act of dangerous driving and the sentence originally passed offended the principle that consecutive terms should not normally be imposed for offences arising out of the same incident or transaction. That decision is binding on this court and indeed was approved by Lord Judge CJ in Attorney General's Reference (No 57) [2009] (Ralphs).[13]Further support for the argument can be gleaned from the Sentencing Council's definitive guideline in relation totality. At page 6 of that guideline, under the rubric of cases where concurrent sentences are to be passed, the specific example is given of:
"A single incident of dangerous driving resulting in injuries to multiple victims where there are separate charges relating to each victim. The sentences should generally be passed concurrently, but each sentence should be aggravated to take into account the harm caused;"
[14]There is thus a clear process to be observed in this type of case indicated not only by settled authority, but also by recent guidance from the Sentencing Council. It does not appear that those materials were drawn to the attention of the sentencing judge. It seems to us, therefore, that the appellant's point is a good one and that consecutive sentences should not have been passed.[15]In Dewdney this court referred to the statutory maximum and the degree of compression in the range of sentences available to the court to reflect different types of dangerous driving and its consequences. This case provides an example by reason of the very serious injury caused to more than one victim, and the additional aggravating features to which we have referred.[16]It seems to us that the maximum of 5 years may well not in this class of case provide adequate headroom for courts. It is not difficult to envisage cases involving extremely bad driving where there are aggravating features of previous convictions, other motoring offences convicted simultaneously, and excessive alcohol consumed, as well as very serious injury to more than one victim. If the rationale behind a 5-year maximum for this offence was related to the 5-year maximum for a section 20 offence, the parallel was a false one because in an incident where two offences against section 20 of the Offences Against the Person Act have been committed, a court would not be constrained by the rule of practice preventing consecutive sentences. All that would be required would be an overall sentence which was proportionate and fair, but which might exceed the maximum for a single offence.[17]It is to be noted that the maximum penalty for causing death by dangerous driving is 14 years. It is easy to conceive of cases brought under this section where, although the injury is not fatal, the victim is left in a vegetative state so that their life is effectively destroyed, and where a second person is left severely and permanently disabled. It might appear that the gap between a maximum of 5 years and a maximum of 14 years, in those circumstances, is too wide.[18]This sort of difficulty was discussed in Attorney General's Reference (No 57) of 2009 in relation to firearms and the range available for sentences with a maximum of 10 years' imprisonment. The position in this case is not dissimilar. In the Attorney General's Reference a call was made for the matter to be addressed by legislation. It seems to us that the time is right for further reflection in the case of an offence, contrary to section 1A of the Road Traffic Act 1988.[19]We would only add that in many cases prosecuting authorities, no doubt recognising the state of the law, indict defendants on a single count in situations where the driving has caused serious injury to more than one person. Dewdney is such an example. Thus the 5-year maximum operates.[20]In the present case, however, the prosecutor chose to put two counts on the indictment. It clearly cannot be correct that the sentencing of an offender in such circumstances as these can be governed by whether the matter is charged as a single count or more.[21]Returning to the present case, it is clear that the judge adopted a starting point of 4 years and 6 months before granting full credit for the guilty pleas. The term of 4 years and 6 months is close to the maximum available sentence and reflects the aggravating features of the case within the statutory framework. The judge's conclusion clearly shows that he regarded the accumulation of factors in this case as sufficient to put this case into what would be category 1 had this been a case of causing death by dangerous driving. We agree.[22]However, we part company with the judge in his assessment that this offender should be granted full credit for his guilty plea. Leaving aside the fact that no intimation of a guilty plea was given until the matter reached the Crown Court, we consider that the case against the offender was overwhelming. Having been trapped in his vehicle there could be no issue but that he was the driver of the car in question; nor could there be any issue that the collision had caused extremely serious injuries to the unfortunate victims; nor in the light of the investigator's report, the CCTV and the eyewitnesses evidence could there be any real doubt that this vehicle had been driven dangerously for a sustained period. The collision on a bend with the appellant's vehicle on the wrong side of the road also contributes to this analysis.[23]In the circumstances we consider that the judge should have limited credit to 20%. Notwithstanding the submissions made to us this morning on this aspect of the matter by Mr Taylor, to effect such a reduction would be entirely in accordance with the current guidance, namely the Sentencing Guidelines Council's guidelines in relation to guilty pleas.[24]Applying that discount to the judge's figure of 4 years and 6 months after a trial, the resulting sentence will be one of 3 years and 7 months. We allow this appeal by quashing the custodial sentences imposed below. In their place we impose concurrent sentences of 3 years and 7 months on each count.[25]This does not offend section 11(3) of the Criminal Appeal Act 1968, as overall the appellant has not been dealt with more severely than he was in the court below. There has been no appeal against the order for disqualification and retest, which remains in place.

Cited in 4 later judgments