Khalid, R. [2017] EWCA Crim 592

[2017] EWCA Crim 592Case No 201700812 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 12 April 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TREACY
MR JUSTICE GREEN
MR JUSTICE PICKEN
Between
R E G I N ACrownv
Between
ALI KHALID
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms R Hussain appeared for AppellantMr M Bisgrove appeared for Crown
J U D G M E N T (Approved)
[1]The Registrar Criminal Appeals has referred the present application for leave to appeal against sentence and for bail to the full court. We grant leave.[2]On 28 December, at about 12.20 am, two police officers in a marked vehicle in Bradford spotted a vehicle carrying two passengers driving at speed. When the driver saw the police he appeared to swerve towards them. Officers, concerned that the car might collide with theirs, put on their blue lights. The appellant then drove off at speed. Shortly thereafter, the driver went over a speed bump, which lifted the vehicle off the ground. The roads were icy, although the street was lit by street lighting. There were cars parked on either side of the road. The driver lost control of the vehicle, it went through a fence and hit a parked Audi. The driver and the two passengers got out of the car. The passengers remained nearby. The driver ran away but was shortly thereafter detained and arrested. The car in question belonged to the driver's sister. He did not have permission to drive it nor was he insured.[3]The appellant was aged 20 at the time. He pleaded guilty to dangerous driving and not having insurance before the Magistrates' Court, who sent him to the Crown Court for sentencing.[4]In his sentencing remarks, the judge started by referring to the well-known concern that there was in Bradford too much of "this sort of behaviour: young men in powerful cars racing around the city centres, often creating damage, injury, even worse than that". The judge stated that the appellant must have been "living on the planet Zog" if he had not heard about the concern of the court in relation to this sort of driving. The judge rejected the appellant's explanation that this was a short journey connected with his work. The judge stated that the explanation was inconsistent and did not "make any sort of sense geographically or indeed in terms of time". The judge therefore concluded that this was simply another case of a young man getting into a powerful car with two people on board, racing around and creating a real danger to the people of Bradford. The judge made clear that, given the concerns which had been expressed by the court over the previous 12 months, in this sort of case offenders would "have to go immediately into custody".[5]In these circumstances, the judge imposed a sentence of 6 months' detention in a Young Offender Institution. This implies a starting point of 9 months before plea. The judge also imposed a 15 month disqualification period taking account of the fact that 3 months of the period would be spent in custody. The judge concluded his remarks with the following observation:
"And I hope that sooner rather than later this message that I have been speaking about, which this Court has been promoting for the last twelve months or more, finally reaches the ears of people like you and this sort of driving comes to an end in this city."
[6]It was argued before us today by Ms Hussain in her concise and helpful submissions that the sentence was manifestly excessive, as an immediate custodial sentence was not justified in all the circumstances. Probation had recommended a non-custodial disposition. The prosecution had opened the case and observed that this was not in the same category as other dangerous driving cases that routinely came before the courts.[7]Ms Hussain has pointed out that the chase was of no more than 0.2 miles, that no evidence of speed was placed before the court, no details of the chase were placed before the court, there was no evidence of road users having to take evasive action and there was no evidence of the extent of the damage caused to the parked Audi that was hit by the vehicle. It is argued that the justification for the immediate custodial sentence was the perceived view of the judge that there was an issue in the local area surrounding young men driving powerful cars in a dangerous manner. In the circumstances, a custodial sentence was unjustified given the defendant's age, his previous good character, his guilty plea, the surrounding circumstances and the recommendation contained within the pre-sentence report. But even if the custody threshold was passed, it did not need to be immediate. It is pointed out that there was no evidence served or called to support the judge's justification. Further, there was no prior indication from the judge that this was to be treated as an aggravating factor. Had such an indication been given, the defence would have wished to examine the evidential basis and to have made submissions about it.[8]On behalf of the Crown, in equally helpful written submissions, it is stated that the Crown neither opposes nor concedes the appeal. Helpfully, the Crown have indicated various factors which it is said amount to relevant aggravating features. These include that the appellant was not permitted to drive the vehicle, that he had no insurance, that the vehicle was driven at speed, that there was a police chase, that the appellant was carrying passengers, that the driving was late at night when the road was icy and therefore dangerous, that there was a collision, that there was damage to another vehicle, and that the appellant fled on foot.[9]The Crown also recognises that there were significant mitigating features: that the appellant was of good character, that the chase was brief, that the appellant returned to the vehicle and admitted his role, that he pleaded guilty at an early stage and that he was young and had personal mitigation.[10]With those facts and matters in mind, we turn to our conclusions. We are concerned that the judge appears to have permitted his concerns about prevalence to affect his sentencing options. He expressly ruled out consideration of a suspended sentence because of his perceived concern as to the prevalence of this type of offending in Bradford and the need to send a message that such behaviour would be met with immediate custody. From the overall tenor of the sentencing remarks, we are also concerned that the judge might well have chosen his starting point of 9 months before plea upon the basis of his very evident determination to stamp out this sort of dangerous driving in the city.[11]It is now well established that courts should be hesitant before increasing a sentence because of prevalence. In the recent judgment in the Court of Appeal in R v Bondzie [2016] EWCA Crim 552, in relation to the sentencing of a defendant for drugs supply said to be in the context of a serious drug problem in the area in which the offending took place, the court stated that in accordance with relevant sentencing guidelines on seriousness courts were required to receive evidence of the prevalence of the offence prior to increasing a sentence upon that basis. A key factor was the harm caused by the offence in the locality in question. It was not open to a judge to increase a sentence for prevalence or in response to the judge's personal view that there was "too much of this sort of thing going on in this area".[12]On the contrary, there had to be evidence provided to the court by a responsible body or senior police officer, the evidence had to be before the court in the specific case being considered with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations could be made in connection with that material and that, even if such material was provided, the judge would only be entitled to treat prevalence as an aggravating factor if the judge was satisfied that the level of harm caused in the particular locality was significantly higher than that caused elsewhere. The judge would need to be satisfied that the circumstances could be described as exceptional and that it was just and proportionate to increase the sentence for such factors.[13]Where the Crown intended to invite a court to consider the issue of prevalence, it was required to say so at a hearing and to identify the material upon which it relied, referring the court to the guidelines. Where a judge of his or her own motion contemplated prevalence as a relevant consideration, that should be identified as a matter to be addressed in submissions to the court and any sentence then imposed should identify whether prevalence had been a factor in the decision and reasons should be provided therefore.[14]In the present case, the judge did not follow the procedure which is required to be followed pursuant to the guidelines and authority. It thus appears to us that the judge was in error in the approach that he adopted. When we stand back and consider the tenor of the sentencing remarks, it does appear that the judge was intent on imposing a severe and deterrent sentence upon the basis of prevalence.[15]There are several factors arising out of the present case which might have been considered as important mitigation and which could readily have led to a significantly lower sentence or might have led the judge at least to consider the possibility of suspension. These have been identified by both the appellant and by the Crown in their submissions.[16]We are therefore left with a real concern that an unfair approach has been taken and that the judge's concerns about prevalence did in actual fact lead to an increase in the sentence. If the judge had wished to take account of prevalence then he was entitled to do so but he was bound to follow the appropriate procedure which would then, from the prospective of fairness, have enabled the appellant's legal advisers to make appropriate submission.[17]In these circumstances, we consider that we must allow the appeal. We consider, along with the judge, that the custody threshold has been passed and that this was quite serious offending. Taking of all of the relevant factors into consideration, we quash the sentence of 6 months' detention. We substitute in its place a sentence of 4 months' detention. This means that the appellant will be released very shortly.[18]There is one final matter we should address. It appears that the judge did not order that the appellant be disqualified until he had passed an extended driving test as required by the provisions of section 36 of the Road Traffic Offenders Act 1988. Such an order is recorded as having been made on the Crown Court record but there is no indication of this in the judge's sentencing remarks. The Registrar has made inquiries and the Crown Court has confirmed that no such order was made in the presence of the appellant. For the avoidance of any doubt, therefore, the disqualification of the appellant from driving will continue until he has passed such an extended driving test. We vary the period of disqualification so that it is now 14 months in duration.[19]To this extent, the appeal is therefore allowed.