Stewart, Re [2016] EWCA Crim 2238

Case No 201604810/A1[2016] EWCA Crim 2238
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 16 December 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE JAY
MR JUSTICE LAVENDER
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
WILLIAM ANTHONY STEWART
Computer Aided Transcript of the Stenograph Notes of
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Mr P Jarvis appeared on behalf of the Attorney General
Mr P Astbury appeared on behalf of the Offender
J U D G M E N T
[1]This is an application on behalf of the Solicitor General, seeking to refer a sentence on the ground that it is unduly lenient. We grant leave.[2]The offender is a man called William Stewart. He is 25 years old, having been born on 18th January 1991. On 26th August 2016, in the Crown Court at Preston, the offender was convicted, after a trial, of an offence of causing death by dangerous driving. In due course he was sentenced by the trial judge to a term of 4 years and 6 months' imprisonment. In addition he was disqualified from driving for 7 years and 3 months and was ordered to take an extended driving test. Facts[3]The background facts giving rise to this offence are these.[4]On 4th June 2015 the offender began working as an agency driver for a company based in Altrincham. He was for this purpose provided with an Inveco rigid flat back lorry to drive. The trailer of that vehicle was fitted with a crane and two outrigger arms that were available for use to stabilise the trailer when the crane was in use. The outrigger arms swung out at right angles from under the chassis and they would rest on the ground when in use. When not in use they had to be secured against the body of the trailer to prevent them from swinging out when the trailer was in motion. The offender was qualified to drive this kind of lorry. He had passed the necessary tests relatively recently in April 2015.[5]On 4th June 2015 the transport manager for the company specifically asked the offender if he first wanted to take this particular lorry, which he was being required to use that day, into the yard to check the operation of the securing mechanisms on the crane and outriggers. As was found, the offender declined that offer, saying that he was familiar with the mechanisms and did not need to practice on that particular vehicle.[6]His first job that day was in Preston. His second job was to collect some items, described as "street furniture" and in effect being in the form of metal railings, from Asda in Altrincham. That job took longer than expected. It required the offender to deploy the crane and the outriggers. After completing this task the offender failed to stow the crane itself away correctly, with the result that it obscured the view which he had through his offside wing mirror. The offender also entirely failed to apply any of the three locking mechanisms that would have been necessary to secure the nearest outrigger arm in place.[7]Natalie Thorpe was born on 8th March 1986. She had a 12-year-old son. On 4th June 2015, at around 5 o' clock, she had finished her work as the manageress of a dress agency. She set out to walk home. She was standing waiting at a pelican crossing on Dunham Road in Altrincham when the offender drove by in his lorry. The offender had by this stage been driving for about a mile-and-a-half. On the final right-hand bend, before reaching the pelican crossing, the outrigger arm slid from its housing so that it protruded nearly 1.6 metres out from the side of the trailer. It was calculated that the offender would have been able to see the outstretched arm in his wing mirror, had he been paying attention, for a period of about 9.32 seconds before the fatal impact. As the offender drove past the pelican crossing the outrigger arm struck the crossing stanchion and demolished it, as the photographs show. The outrigger arm then struck Ms Thorpe. She suffered fatal injuries and was pronounced dead at the scene.[8]After that fatal impact the offender did not stop but carried on driving a short distance. The driver of a Volkswagen Golf car saw the lorry approach with the outrigger arm extended. That driver tried to reverse in order to avoid another impact but the outrigger arm struck the Golf, ripping off the front bumper; again as illustrated by photographs. Fortunately no one inside that car was injured.[9]The offender then stopped a short distance away from the Golf. He remained there as emergency service personnel started to arrive. He was arrested and taken into custody. A police officer climbed into the cab to move the lorry. Once the officer started the ignition a warning noise could be heard in the cab. That noise was caused by a defective reversing indicator which sounded even when the lorry was moving forward. That noise would have been obvious to the offender when he was driving the lorry but he had taken no steps to investigate what the cause of it might be. A number of bystanders subsequently were to tell the police that they had heard the noise as the lorry drove past them before the fatal collision. As it happened the specific alarm that would have alerted the offender to the fact that the outrigger arm had swung away from the chassis had been disconnected. It was not, however, suggested that the offender himself had disconnected it.[10]In interview the offender said that he did not know how the outrigger arm came to be unsecured. He suggested that it may have been due to his inexperience or lack of confidence. He stated that he had looked in his mirrors as he drove along but he did not see the outrigger arm extending away from the side of the trailer.[11]In due course he was charged with causing death by dangerous driving. The prosecution's case was that he drove the lorry in a dangerous condition because the outrigger arm was not properly secured and he must have known that. The offender pleaded not guilty at his plea and case management hearing on 4th February 2016 and the case was then set down for trial. At the first day of trial he tendered a plea to causing death by careless driving. That was not acceptable to the prosecution.[12]The offender has previous convictions for being drunk and disorderly, for affray and for common assault. None of his antecedents on his record involve driving offences. However, it is to be noted, and as the judge pointed out in her sentencing remarks, that he had been dismissed from his previous employment because of concerns surrounding the number of vehicle accidents he had been involved in. Indeed he had had to be sent back for further training.[13]A pre-sentence report was prepared and submitted. The writer of the report indicated that the offender was distraught and deeply remorseful. The offender was, among other things, stating that his failure to secure the outrigger properly was negligent but not deliberate. The judge was to refer to the pre-sentence report in due course as "not being particularly helpful" and the judge also said that she had not seen much by way of true remorse: on the contrary the offender's case at trial had involved seeking to pass the blame onto others without any justification.[14]There was a moving victim personal statement put in by the victim's mother. Understandably she emphasises the devastation and shock which the death of her daughter has caused and the position of the son is also understandably emphasised; he is now being cared for by the victim's mother. The effect on the boy will of course have been profound, as will the effect on the victim's entire family. Sentencing Hearing[15]There was debate before the trial judge as to the appropriate categorisation of this offence of causing death by dangerous driving. The relevant guideline for this purpose remains that of causing death by driving as issued by the Sentencing Guidelines Council. A particular emphasis of that guideline is on the considerations relating to culpability.[16]At page 10, in a discussion about the levels of seriousness, level 1 is described as follows:
"The most serious offences encompassing driving that involved a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others. Such offences are likely to be characterised by: • A prolonged, persistent and deliberate course of very bad driving AND/OR ... • A group of determinants of seriousness which in isolation or smaller number would place the offence in level 2."
[17]Level 2 relates to driving that has created a "substantial" risk of danger. The discussion sets out matters which are likely to characterise that kind of risk. Level 3 relates to driving that creates a "significant" risk of danger. One of the characteristics of that level is this:
"... driving when knowingly deprived of adequate sleep or rest, or knowing the vehicle has a dangerous defect or is poorly maintained or is dangerously loaded."
[18]The description of the nature of the offence for level 1, level 2 and level 3 set out on page 11 correspond with those general remarks. The starting point for level 1 is 8 years' custody, with a sentencing range of 7 to 14 years' custody. For level 2 the starting point is 5 years' custody, with a range of 4 to 7 years' custody. For level 3 the starting point is 3 years' custody, with a range of 2 to 5 years custody. As the law currently stands the maximum available sentence is one of 14 years' imprisonment.[19]In the course of the debate before the judge as to which was the appropriate level to apply in this particular case, counsel then appearing for the prosecution said this:
"The issue for the court, the prosecution would say, would be whether or not what driving the vehicle in the condition that it was and not making any proper checks in terms of the outrigger arms created a substantial risk of dangerousness thus putting it into level 2 or whether or not that in fact amounted to what the guidelines term as significant risk of danger."
Counsel then went on to say:
"... the prosecution say it may well come in fact between levels 2 and 3. The Crown say there was a substantial risk of dangerousness and that would have been obvious ..."
Counsel then went on to draw attention to the appropriate ranges for level 2 and also the appropriate ranges for level 3.[20]Mr Astbury, appearing then as he does now for the offender, urged the judge to take the view that this was a level 3 case, albeit he acknowledged that there was something of an overlap between levels 2 and 3.[21]The judge of course had had the benefit of conducting the the trial. It is plain from her sentencing remarks that she was totally on top of the facts of the case. She noted positive character references for the offender from his family. As to that she crisply said this:
"Your sister says you are always thinking of others before yourself, well unfortunately not on the 4th June last year."
[22]The judge went on to indicate, as we have said, that she had not derived much assistance from the pre-sentence report. She then referred the position of Ms Thorpe. As to what actually happened the judge made these important findings:
"You were so lax in your behaviour and concentration that day that you did not notice the crossing or Ms Thorpe, you hadn't noticed a car reversing out of your way moments before the accident because of the arm sticking out, you hadn't noticed or you had ignored the reversing alarm constantly beeping and you drove knowing that you had stowed the crane incorrectly and you failed to see in your mirrors that the outrigger had come from its holding where it should have been locked securely in place by three separate locking mechanisms."
Moreover, the judge pointed out that on his own admission the offender had whilst driving been using or looking at his phone as a SatNav guidance device. That was not causative in any way, it should be stressed, of the ultimate fatal incident; but, as the judge put it, it provided a further insight into the attitude of this offender as to compliance with the rules of the road. The judge further noted the previous incidents of careless driving at his previous employment indicating that:
"... [they] in themselves demonstrated your careless attitude to your job and the responsibility of driving a large and potentially dangerous vehicle."
The judge noted the relative inexperience of the offender as a driver of such a vehicle. She went on to make these important further findings:
"...but you knew full well what was expected of a driver of such a lorry in using and stowing away the crane correctly, using and locking the stablising legs... Yet on the 4th June and contrary to all your training you told us that you used only one stablising arm when using the crane and loading the lorry and without locking the arm in place, it's a miracle there wasn't an accident as a result of that, or in stowing away the left stabilising arm before stowing away the crane, another accident waiting to happen and in stowing away the crane completely incorrectly so that it protruded from the waggon and this is before you drove away and you drove away without locking the stabilising arm in place. This was no oversight, this did not occur because of any mechanical failure but because you quite simply ignored the training you had received over those two courses. Even if one assumes for one moment that this was initially an oversight, had you made the most cursory visual check or pulled on the arm you would have seen that the arm was not locked but you did not. I have come to the conclusion that you were cutting corners that day, frustrated at being in Cheshire for longer than you probably anticipated, waiting for instructions, wanting to return to the Wirral as soon as possible that afternoon and you simply made the decision not to lock the arm in place correctly, hoping that the top lock might do the job, but it never could because the arm wasn't being held properly in place by the two bottom locks."
The judge went on to say there had been no proper acknowledgement of the seriousness of what the offender had done. She went on later to say this:
"After all you had been trained and you demonstrated it in passing the test and what you told the police in interview demonstrates that you knew precisely what was expected of you in the safety procedures and in the use of the crane and stabilisers."
The judge thus made it clear that it had been the offender's deliberate choice to drive off in the manner described. The judge found that he had showed a complete lack of responsibility on 4th June that year and a complete disregard of what he knew had to be done to drive that lorry safely. The judge further and appropriately referred to the message that had to be sent out:
"...if a driver deliberately and knowingly drives a lorry in a dangerous state when that state would be obvious to a careful and competent driver and as a result someone is killed then a prison sentence must follow."
The judge then made further remarks and imposed the sentence that we have indicated. Submissions[23]On behalf of the Solicitor General, Mr Jarvis submits that a custodial sentence of four-and-a-half years' imprisonment is unduly lenient. He submits that, contrary to the judge's view of the matter and contrary indeed to the concession of counsel then appearing for the prosecution, this was indeed a level 1 offence: with, in consequence, a starting point of 8 years and a range of 7 to 14 years' custody. He submits that the circumstances here, on the judge's own findings, were such that by reference to level 1, the driving had involved a deliberate decision to ignore the rules of the road and a flagrant disregard for the rules of the road and a disregard for the great danger being caused for others. He submits that the judge was wrong to put this in level 2, and certainly was wrong then to place it at the bottom of that particular range. In the result, he submits, the judge imposed a sentence that could not be justified.[24]For the offender Mr Astbury, in well-focused submissions, has submitted that it is important to bear in mind that this sentence was imposed by a judge who had the benefit of conducting the trial and was fully acquainted with the facts. He submits that this case was properly categorised as level 2 offending, given the circumstances, and it was a matter for the judge's evaluation to put this towards the bottom of that particular range. Mr Astbury has also emphasised, as he emphasised to the court below, the relative inexperience of this offender at the time with regard to driving vehicles of this type. However, that is very much a double-edged submission. It can be said that given his relative inexperience there was all the more reason for him conscientiously to comply with the training which he had recently received and to make sure that the appropriate safety mechanisms were in place. This was not, at all events, a sudden incident whereby an inexperienced driver had to deal with a swiftly developing situation; this was a complete and wholesale disregard of all his training based on safety considerations. Disposition[25]In our judgment, this was a shocking case of dangerous driving. As the judge rightly emphasised, a heavy goods vehicle, over and above a vehicle such as a car, is capable of being in effect a very dangerous weapon. There is a particular responsibility on drivers of such vehicles, given the size and weight and nature of those vehicles, to drive in a manner which respects the safety of others. Moreover, what is particularly striking in the present case is that on the trial judge's own findings of fact the offender had not simply been extremely careless in failing to realise that the crane and outrigger had not been properly secured and located. As the judge found, he actually knew before he set off on this journey. He simply could not be bothered to secure them in order to spare himself some time and personal inconvenience. This was in flagrant disregard of the safety of others and showed a reckless and selfish and, it has to be said, indolent indifference to the well-being of other road users and pedestrians. This was further reflected by his failure not just to secure the outrigger but also properly to stow and secure the crane itself, as he appreciated. Indeed, the crane was also capable of being seen to be incorrectly stowed in his wing mirror during the journey had he bothered to check. To the extent than he did look, he did not care. The reversing bleeper was constantly sounding. That was not, it is true, causative of the death: the point is that, here too, he did not care. His whole attitude to driving this vehicle was also shown by his frequently looking at his mobile phone for SatNav guidance, again an obvious risk even if not causative of the actual incident. But again, he did not care. Even when he struck the stanchion and the unfortunate Ms Thorpe he did not notice; he only stopped when he eventually struck the Golf car.[26]In our view, this prolonged course of dangerous driving, resulting all too foreseeably in the death of someone and in flagrant disregard of all training which the offender had received, clearly justified this case being put within level 1. This case should have been and should be so assessed.[27]The submission of Mr Astbury in the court below that this was level 3 offending was, with respect, completely unreal. True it is that in one sense what happened related to the loading of this particular vehicle; but that simply does not reflect the totality of all that was going on.[28]In our view, counsel for the prosecution then appearing, with all respect to her, significantly understated the position in suggesting that this case might be somewhere between level 2 and 3, albeit ultimately focusing on level 2. In our view, as we have indicated, this was level 1 offending; although it can properly be placed towards the bottom of that range and perhaps coming close to the cusp with level 2.[29]Moreover, the personal mitigation was minimal. There was no plea. The remorse, as the judge found, was unimpressive. Indeed, as the judge noted, the offender had been more concerned, wholly unworthily, to foist responsibility onto others when the fault was, in truth, his and his alone. He does have an antecedent history; and the judge was perfectly entitled to have regard to the previous incidents relating to his seemingly careless driving involving previous heavy goods vehicles resulting in his retraining. The significance is that those previous incidents could be viewed as a wake-up call to him. But again, he chose to ignore that. This further evidenced his heedless and selfish indifference that day with regard to the safety of others.[30]In our view, the least sentence that could be justified here after a trial, given all the circumstances, was one of 7 years' imprisonment. We allow the appeal accordingly. We quash the sentence imposed by the judge and substitute a sentence of 7 years.[31]As to disqualification, the judge's selection of a discretionary disqualification period of 5 years was richly deserved. By reference to the provisions of section 35A of the Road Traffic Offenders Act 1988, as amended, the extended period should now be one of 42 months' imprisonment being one-half of the custodial term of 7 years. The total disqualification period thus becomes one of eight-and-a-half years. Other observations[32]Finally, we wish to say something in view of the fact that the argument on behalf of the Solicitor General before us has involved a significant departure from the argument of counsel then appearing for the prosecution in the court below as to the appropriate categorisation. Of course the trial judge was not bound to accept what counsel for the prosecution was then arguing below. But it would be natural for the judge to be influenced by what trial counsel for the prosecution was submitting. Nevertheless, the ultimate evaluation is always one for the sentencing judge; if a judge initially disagrees with prosecution counsel's assessment of the appropriate categorisation, then it is entirely open to the judge so to indicate - indeed it is the judge's obligation to do so - and then to give counsel for the defence an appropriate opportunity to respond.[33]It has to be said that it has been the experience of this court that in recent times references brought by the Attorney General or Solicitor General have not infrequently involved a departure from what has been conceded on behalf of the prosecution below. Indeed, very often it is that departure which has caused or contributed to the assessment that a sentence is to be challenged as unduly lenient. In our view, it is not illegitimate in principle for the Solicitor General or Attorney General to take that stance in an appropriate case. Their function in this regard is to assess whether cases should properly be brought before this court on the footing that the sentence has been unduly lenient; and undue lenience may in some cases arise precisely because of a mistaken categorisation of offending by reference to the particular Sentencing Guideline which is in point. In those circumstances, the Attorney-General and Solicitor General are not bound by a concession as to categorisation in the court below. The concession is, after all, not as to a matter of fact but as to what is a matter of judgment and evaluation. In the ordinary case, moreover, no specific unfairness or detrimental change of position to or by a defendant will be likely to be occasioned by the departure from such a concession, other perhaps, than the disappointed expectation which is in any event inherent the bringing in of any reference. It is in that context that this court has to assess whether or not a sentence is or is not unduly lenient.[34]Accordingly, any concession in this particular regard in the court below by prosecuting counsel as to the appropriate categorisation of an offence for sentencing purposes is not to be taken as binding on this court and is not binding on the Attorney General or Solicitor-General: who are, in general terms, entitled to seek to depart from such a concession, provided always that there is a proper and substantial justification for doing so.[35]Nevertheless the very fact that counsel for the prosecution has in the court below made a concession as to appropriate categorisation, and indeed the very fact that a judge has accepted and acted on that, may well be a powerful indication that that is indeed our assessment which may be properly made on what is, after all, ultimately an exercise of judgment. This court will thus always have due regard to the sentencing judge's evaluation of the position. But if (and the present case is an illustration of this) the categorisation for sentencing purposes has turned out to be wrong and that has materially impacted on the appropriateness of the sentence, then it is the duty of this court, in the ordinary case at all events, to say so and, where justified, to intervene by increasing the sentence to the extent considered appropriate. That certainly should be the result in this particular case.[36]We also add that where the Attorney-General or Solicitor General does in any particular reference seek to depart from a concession or acceptance made below by counsel for prosecution in the Crown Court, either as to the correct level of categorisation under any relevant guideline or as to the existence or absence of aggravating or mitigating factors, then this should be clearly and expressly flagged up in the text of Final Reference itself, with reasons given for so departing from the concession made below.[37]That, we should emphasise, was duly and properly done in the present case. However in other cases, in our experience, that has not always been sufficiently flagged up in the Final Reference. We make clear, therefore, that it should always be made explicit in the final Reference in all such cases where there is a departure from a concession made in the court below: so that this court is entirely aware of the point in advance of the hearing.

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