Harvey, R v [2017] EWCA Crim 2065

No: 201702896/A2[2017] EWCA Crim 2065
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 1 November 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOLROYDE
MR JUSTICE GREEN
HIS HONOUR JUDGE AUBREY QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
IAN MATTHEW JAMES HARVEY
Mr I Bridge appeared for AppellantMs E Marshall appeared for Crown
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J U D G M E N TThis transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

LORD JUSTICE HOLROYDE:

[1]This is an appeal by leave of the single judge against a sentence of 2 years' imprisonment for an offence of causing death by careless driving, contrary to section 2B of the Road Traffic Act 1988.[2]The appellant was approaching his 23rd birthday at the time of the offence. He was a craftsman engineer, serving in an Engineers Regiment, well regarded by his officers and with a promising military career ahead of him. He was effectively of previous good character.[3]On the night of 5th December 2015 the appellant was driving his Ford Fiesta on an unlit country road, near to his home, which he knew well. His girlfriend was with him in the front passenger seat and another friend was seated in the rear of the car.[4]Leaving a village, and moving from a speed limit of 30 miles per hour to a limit of 50 miles per hour, the appellant overtook a vehicle driven by a witness, Mr Jones. Mr Jones, himself in the course of moving up from the lower to the higher of the two relevant speed limits, estimated the appellant's speed at about 65 miles per hour. About a mile-and-a-half further along the road there was a slight left-hand bend, on an incline leading to a small bridge. The appellant lost control of the Ford Fiesta whilst negotiating that bend. His car moved from left to right, putting him onto the wrong side of the road, and he collided almost head on with an oncoming Ford Focus. The impact caused the Ford Focus to spin through 180 degrees. The Ford Fiesta, driven by the appellant, came to rest along a grass embankment and caught fire. Mr Jones came upon the scene. He heard the appellant saying: "It's all my fault". To his credit, the appellant did what he could to assist those in the Ford Focus.[5]A police officer who attended the scene was told by the appellant that his steering had gone light on the crest of the hill and that the accident was all his fault. When later formally interviewed he made no comment.[6]The driver of the Ford Focus was Mr Mark Hayward. His principal physical injuries were two fractured ribs, a fractured vertebra and fractures of two bones in his left foot. His wife, Christine Hayward, was in the front passenger seat. She suffered a sprained left ankle, bruising to her left leg and bruising caused by her seat belt. In the rear passenger seat were Mark's brother, Anthony Hayward, and Anthony's wife, Susan Hayward. Anthony Hayward suffered multiple fractures and dislocation to his right hip. His wife Susan, very sadly, suffered multiple injuries from which she died at the scene.[7]There were also serious injuries to those in the Ford Fiesta. The appellant's girlfriend suffered a crush fracture of a vertebra. The rear seat passenger suffered a broken collar bone, four cracked ribs and bruising. In terms of physical injuries the appellant himself was the person least seriously hurt. He suffered a cut to his face.[8]The physical injuries, however, were of course only part of the harm caused by this offence. We have seen victim personal statements, composed some 18 months after the collision, by the three who survived the collision in the Ford Focus. Their statements set out in powerful terms the continuing psychological and emotional consequences which they have suffered. Their continuing grief over the death of Mrs Susan Hayward is starkly apparent. They suffer disturbed sleep. They have frequent distressing flashbacks and memories of the collision. They find that they cannot talk about the incident or about the deceased, even amongst themselves, without breaking down.[9]Anthony and Susan Hayward had been together for more than 40 years since they were teenagers. He speaks in his statement of his isolation and of his continuing anguish that his own need for medical treatment meant that he could neither be with his wife at the time of her death, nor be near his brother, who was treated at a different hospital. Other evidence before the court makes it clear that Mrs Susan Hayward was a much-loved member of a large extended family and is mourned by many people.[10]So it is that a fatal collision such as this ends one life but brings injury and harm to many others. It must be remembered that the appellant too has suffered. Although his physical injury was, as we have said, minor, it is apparent from the evidence we have seen that he too has suffered continuing psychological and emotional consequences. It seems that for a time he tried to bottle things up, but was eventually referred to the mental health team because he was showing the signs of post-traumatic stress disorder. We recognise that he must live with the knowledge of the harm that he has caused. We have seen evidence of his genuine remorse, which we accept. We are aware that he has written a letter of apology to the bereaved and expressed his willingness to apologise to them in person if they wished to speak to him.[11]The appellant was initially charged with causing death by dangerous driving and with two offences of causing serious injury by dangerous driving. There was an unsuccessful application to dismiss the charges, on the basis that the evidence could not show dangerous driving. An alternative charge of causing death by careless driving was added to the indictment and on 6th September 2016 the appellant pleaded guilty to that lesser offence. The trial of the three charges alleging the element of dangerous driving was adjourned to a date in May 2017. At that trial, before Her Honour Judge Williams and a jury in the Crown Court at Maidstone, the jury returned not guilty verdicts. On 26th May 2017 Her Honour Judge Williams sentenced the appellant, for the offence to which he had pleaded guilty, to 2 years' imprisonment. She ordered that he be disqualified from driving for 3 years.[12]In his evidence at trial the appellant had accepted that he was driving in excess of the 50 miles per hour speed limit, though not by very much. He said that although he did not know his exact speed, it would have been up to perhaps 60 miles per hour. His two passengers, who unsurprisingly did not look specifically at the speedometer, did not express any concern or anxiety either at the time or at trial about the speed or manner of the driving.[13]Mr Jones had given the evidence to which we have referred about the appellant's speed a mile-and-a-half before the collision. There was in addition expert evidence from a police officer trained in accident reconstruction. His evidence was to the effect that the speed must have been in excess of 70 miles per hour, because the evidence of those who witnessed the collision indicated that the wheels of the Ford Fiesta had left the road surface.[14]Mr Bridge, on behalf of the appellant, tells us that it was his submission to the jury, which he repeats to us, that if the appellant's speed had really been well in excess of 70 miles per hour, that would have surely been apparent to and commented upon by the passengers in the Ford Fiesta.[15]The judge in her sentencing remarks rejected the appellant's evidence as to his speed. She said that, in the light of all the evidence given at trial, she was satisfied that his speed had been in excess of 70 miles per hour and that the reason why his steering had, as he said, "gone light", was because the wheels of the Ford Fiesta had left the surface of the road. Mr Bridge, in his written submissions, challenges that finding.[16]The learned judge made clear, as of course do we, that the sentence of the court in a case such as this cannot, and is not intended to, compensate the bereaved for the loss of their loved one. The judge acknowledged the matters of mitigation which the appellant was able to put forward. In addition to those matters we have already mentioned, there were impressive testimonials from the appellant's officers and from others who spoke very highly of him.[17]The judge however also noted that the appellant was familiar with the stretch of road where the collision occurred. At page 2G of her sentencing remarks she said that:
"The speed at which you were driving was very irresponsible behaviour. The consequences of your driving have been devastating for a large number of people, including you and your family."
She referred to the Sentencing Guidelines Council's Definitive Guideline on sentencing in offences involving the causing of death by driving. There is a specific guideline for the offence of causing death by careless or inconsiderate driving. That guideline indicates three categories of offence. Mr Bridge submitted to the sentencing judge, and submits to us, that this offence could properly be categorised in the middle category as "other cases of careless or inconsiderate driving". The learned judge however accepted the prosecution's submission that the circumstances of the case came within the most serious category, namely, "careless or inconsiderate driving falling not far short of dangerous driving". For such an offence the guideline indicates a starting point of 15 months' custody, and a sentencing range of between 36 weeks and 3 years' custody. At page 3B the learned judge said:
"The aggravating factor present is the serious injury that was caused to two other people in the Hayward car and two people in your car. The mitigating factor is your previous good character. I take into account that this conviction and sentence will almost certainly bring your career in the Army to an end. This, in my judgment, was a very bad case of causing death by dangerous driving."
We observe that there was clearly a slip of the tongue on the learned judge's part in the last words of that passage.[18]The learned judge concluded that the appropriate sentence, after a trial, would have been one of 3 years' imprisonment. Giving full credit for the early guilty plea she imposed the sentence of 2 years' imprisonment which is the subject of this people. The order for disqualification is only appealed to the extent that it may fall to be reduced if the appeal against the sentence of imprisonment succeeds.[19]The grounds of appeal are first, that the learned judge was wrong to place the offence at the top end of the guidelines. Mr Bridge, in his written grounds, argues that the jury's verdicts were an indication that they had either rejected the prosecution allegation of greatly excessive speed, or had accepted the defence evidence that the appellant was only exceeding the speed limit by a comparatively narrow margin. He submits that the carelessness was not the worst of its type, and the case should have fallen into the middle bracket of the guidelines.[20]Secondly, Mr Bridge submits that the learned judge gave insufficient weight to the combined effects of the features of mitigation, namely the appellant's apology and acknowledgement of fault at the scene; his good character; his good previous driving record; the impact on his military career; the delay in the matter coming to trial; his actions at the scene in assisting to rescue those trapped in the Ford Focus; his remorse and shame; and the effect of the incident on his mental health.[21]In her written submissions on behalf of the prosecution, to which she has added brief oral submissions today, Ms Marshall submits that the jury's verdict indicates no more than that they could not be sure that the appellant's driving fell far below the standard to be expected of a competent and careful driver. It was not possible to treat the jury's verdicts as an acceptance of the defence case that the speed limit was only marginally exceeded. She points out that evidence as to speed was an important part of the prosecution case, but was not the only issue. Overall, she submits that the offence was properly placed within the top category of the guidelines, the judge being entitled to conclude that the driving fell not far short of dangerous driving and to raise the starting point. The judge was entitled to accept the evidence that she did as to speed, and she was entitled to give significant weight to the very serious injuries caused to others in the two vehicles.[22]Ms Marshall points out that the learned judge specifically acknowledged the features of mitigation, but she had to weigh those against the aggravating feature which has been identified.[23]No pre-sentence report was before the court but none was necessary either then or at this stage, the court being in a position to know all relevant matters about the appellant.[24]It is suggested to us today by Mr Bridge that there is at least a possibility that a successful outcome to this appeal might carry with it the prospect of the appellant being able to resume the military career which has come to an end. Mr Bridge did not press this point, frankly acknowledging that there was little further information he could give. We think that we must work on the basis of the written evidence that we have from the appellant's former regiment, which indicates that, in determining whether his military career could continue, no exceptional circumstances had been found to depart from the normal consequence of discharge from the Army upon conviction of a road traffic offence involving death, and that the length of the custodial sentence was not taken into account in making that decision.[25]We think it right to work on that basis not only because that is the only clear evidence before the court, but also because it does seem to us to be an important aspect of the appellant's mitigation to take into account that by his conduct he has brought upon himself, amongst other consequences, the loss of a promising military career.[26]We have reflected upon the submissions of counsel. We cannot accept the submission that the jury, because they found the appellant not guilty of dangerous driving, must have accepted the evidence that he was only exceeding the speed limit by a modest margin. By their verdicts the jury indicated that they were not sure that the standard of the appellant's driving fell far below what was expected of a competent and careful driver. But it is not possible to treat that as an indication that they accepted that the manner of his driving fell only a little below that standard.[27]In any event, the learned judge had heard all the evidence, including of course that of the appellant himself and his passengers, and she carried the responsibility of making her own findings as to the appellant's culpability, provided of course that those findings did not conflict with or go behind the jury's verdicts. We have no doubt that the evidence which she had had heard entitled her to make the findings she did as to speed and as to the irresponsibility of the driving, and those findings were not in any way inconsistent with the verdicts.[28]As to the appellant's mitigation, we have already indicated that strong points were available to him, including the heavy penalty of the ending of his military career. There is however no reason to doubt that the learned judge took all those factors into account. She had to weigh them against the aggravating factor which is identified in the Sentencing Guidelines of "serious injury to one or more persons in addition to the death".[29]Here, there were serious injuries to Mark and Anthony Hayward, and when the psychological and emotional consequences are taken into account, we would describe their injuries as "very serious". Three other persons were injured to an extent which, in our view, could either fairly be referred to as "serious injury" or would not fall far short of that description.[30]The judge had to balance and weigh those aggravating and mitigating features, and in accordance with her duty under section 125 of the Coroners and Justice Act 2009 she had to follow the Sentencing Guideline unless satisfied that it would be contrary to the interests of justice to do so. She concluded that after a trial it would not have been necessary, in the interests of justice, to go above the sentencing range but that the appropriate sentence would lie at the top of that range.[31]Mr Bridge submits that there was really nothing about the case to take it above the guideline starting point. He submits that a fair balancing of the aggravating feature of injury to others and the personal mitigation available to the appellant, should have led the judge to that conclusion, or to a conclusion that the starting point should only be increased by a short period. We are unable to accept that submission. The level and extent of injury caused to others, as well as the death of Mrs Susan Hayward, was a very serious aggravating feature of the offence. The judge, in our view, was entitled to reach the conclusions she did. She adopted a correct approach to the sentencing exercise and, in our judgment, it cannot be said that she failed to give due weight to the mitigating features. We recognise, of course, that the sentence of 2 years' imprisonment is a difficult one for the appellant and a heavy penalty for this terrible incident of careless driving. In our judgment however, it was not manifestly excessive. This appeal accordingly fails and is dismissed.