Usaceva, R. v [2015] EWCA Crim 166

[2015] EWCA Crim 166Case No 2014/4080/A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 6 February 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE JACKSON
MR JUSTICE MITTING
MR JUSTICE JAY
Between
R E G I N ACrownv
Between
MARINA USACEVA
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 I Brownhill appeared for AppellantMiss G Gibbs appeared for Crown
J U D G M E N T
[1]MR JUSTICE MITTING: On 10th July 2014 the appellant pleaded guilty on re-arraignment to causing death by dangerous driving. She was sentenced by His Honour Judge Enright on 31st July 2014 to six years' imprisonment and disqualified for 10 years. Her licence was endorsed with 11 penalty points.[2]The facts are as follows. At 4.30 pm on 15th March 2013, a Peugeot 206 motorcar was being driven at moderate speed by Sukhdeep Johal along the single carriageway A47 road towards Peterborough when it struck the nearside kerb near to the New Toll Service Station and spun across the road into the front of an articulated lorry driven at 38 mph in the opposite direction. Sukhdeep Johal was killed. He and the lorry driver were blameless. What had caused his car to strike the kerb and spin across the road was the fact that it was struck from behind by a Jaguar X Type car driven by the appellant. The collision caused significant damage to the Jaguar and was of sufficient force to cause the driver's airbag to deploy. The sky was overcast and it had been raining but the road surface was in good condition. There was nothing to prevent the appellant as she approached the Peugeot from slowing down safely behind it.[3]What caused her not to do so? Her car had attracted the attention of Andrew Harrison, a house owner looking out of his window facing onto the A47, who saw it braking so hard that its bonnet dipped and its back raised up. He remarked to his mother that someone had just gone speeding by the window. The next thing he heard was the sound of the collision out of his eyesight. Speed may therefore have been a factor. The judge was satisfied that the Jaguar approached the scene of the collision at less than 70 mph on a 60 mph road, but was travelling significantly faster than the Peugeot.[4]Something must have caused the appellant to be inattentive of the road ahead. She had two mobile telephones in her car, both of which she had used without stopping to do so in the minutes before the collision. She had used a Samsung handset to send a text message at 4.12 pm, to make a two second outgoing call at 4.16 and to receive an incoming call immediately afterwards of one minute 33 seconds. At 4.19 an incoming call was diverted to voicemail and at 4.24 she took an incoming call for 28 seconds. On a Sony mobile telephone she sent an outgoing text message at 4.15 and received an incoming text message at 4.17. She denied using a mobile telephone during the journey when interviewed by the police and initially said that she had never used a mobile telephone when driving. In fact she had done and had received two fixed penalties for doing so in 2009 and 2012. She did not reveal the existence of the Sony mobile telephone to the police until records of its usage established that it had been in the Jaguar before the collision.[5]The judge concluded that she must have been fiddling with one or both of the mobile telephones with a view to making or receiving calls at the time of the collision. He invited her counsel to call evidence on the issue -- in other words to call the appellant herself -- if he wished to do so, but he declined. This finding caused the judge to put the case into category 2 because by driving whilst fiddling with one or more mobile telephones the appellant had behaved in a seriously culpable manner. He treated the two recent fixed penalty offences as seriously aggravating factors which took the case to the top of the bracket of four to seven years after a trial. He discounted the sentence by one year to reflect her belated plea of guilty.[6]The appellant appeals with the permission of the single judge on three grounds: 1. It was manifestly excessive. 2. It was wrong in principle. 3. It was imposed on a wrong factual basis.[7]We deal with the third ground first. In our view the judge was entitled to find that the appellant was fiddling with one or both of her mobile telephones as she approached the scene of the collision. There was nothing else to distract her. She had a history of using mobile telephones when driving and had been doing so no more than five or six minutes before the collision. She had lied about mobile telephone use both before and on that day and concealed the existence of the Sony mobile telephone. She declined the judge's invitation to give evidence about the issue. In the absence of any other plausible explanation, the judge's conclusion had to be right. He was therefore right to place the case in category 2.[8]We deal with the first and second grounds together. In our view the judge was entitled to treat the previous offences of using mobile telephones whilst driving as seriously aggravating features. He was also entitled to conclude, as he did, from what she said to the author of the pre-sentence report, that she did not accept responsibility for her conduct and showed no real remorse for it. He was entitled to arrive at a sentence of seven years after a trial. He gave her adequate credit for her belated plea of guilty by reducing it to six.[9]The judge finally had to consider one very significant factor. The appellant was a 31-year-old single mother of an eight-year-old son. In the event (which was inevitable) that she would be sentenced to an immediate term of imprisonment of some length, he would have to be cared for by his grandmother. As presented to the judge, she would have to care for him in Germany, although we are told that pending the outcome of this appeal she has come to look after him in England. Germany is a country with which he was not apparently familiar and whose language he did not speak. Her imprisonment would inevitably cause a significant upheaval for him.[10]Mr Brownhill relied before the judge and before us on the case of Petherick [2012] EWCA Crim 2214, in which on different facts the dilemma facing the sentencing judge was carefully explored. The Court observed at paragraph 24 that in a case "where custody cannot proportionately be avoided, the effect on children or other family members might (our emphasis) afford grounds for mitigating the length of sentence, but it may not do so." The judge concluded on the facts of this case that it did not do so. He expressed himself perhaps unfortunately by reference to the Article 2 rights of the deceased driver of the Peugeot car. But he concluded that the public interest demanded that the appropriate sentence be imposed without discounting it to reflect the Article 8 rights of the appellant's son.[11]These are always difficult sentencing decisions. The judge gave proper attention to this significant factor and he was entitled in our view to conclude that the public interest did require the appropriate sentence not to be discounted. We agree with his conclusion. Accordingly the appeal against the sentence of six years' imprisonment must be dismissed.[12]Finally, at the invitation of counsel for the prosecution the judge ordered that in addition to disqualification the appellant's licence should be endorsed with 11 penalty points. A note in Archbold based on Kent 77 Cr.App.R 120 decided under the predecessor to the Road Traffic Act 1988, the Road Traffic Act 1972, as amended by the Transport Act 1981, at 32-231 in the 2015 Edition, states that if a court imposes an obligatory sentence of disqualification from driving, it cannot order penalty points to be endorsed.[13]The statutory language at the time when Kent was decided was clear. Section 101(1) of the Road Traffic Act 1972 as amended by schedule 9 of the Transport Act 1981 required particulars of conviction and disqualification to be endorsed and only if the court did not order disqualification should particulars of the offence and penalty points be endorsed. The modern statutory provision is simpler. Sections 28(1) and 99 of the Road Traffic Offenders Act 1988 provide that where a person is convicted of an offence involving obligatory endorsement the number of penalty points shown in column 7 of Parts 1 or 2 of Schedule 2 to the Act should be ordered to be endorsed. Columns 6 and 7 of Schedule 2 show that endorsement is both "obligatory" and that the number of points to be endorsed is three to 11 for an offence under section 1 of the Road Traffic Act 1988. On the face of it therefore the court has no choice but to order endorsement with three to 11 penalty points.[14]Section 44(1) of the Road Traffic Offenders Act 1988 however provides:
"(1)Where a person is convicted of an offence involving obligatory endorsement, the court must order there to be endorsed on [F1the counterpart of] any licence held by him particulars of the conviction and also— (a) if the court orders him to be disqualified, particulars of the disqualification, or. (b) if the court does not order him to be disqualified— (i) particulars of the offence, including the date when it was committed, and (ii)the penalty points to be attributed to the offence."
Section 44(1)(a) therefore requires only that the particulars of conviction and of disqualification are to be endorsed when a person is convicted of an offence involving obligatory disqualification and is disqualified.[15]The language is simpler and less explicit than that used in previous legislation, but from the language of the provision we cannot discern that Parliament intended to change the law and can discern no policy reason why it should have thought it right to do so. Therefore the decision in Kent should be applied to the legislation currently in force. The order for endorsement therefore must be quashed. To that extent only this appeal is allowed.