Morris, R v [2017] EWCA Crim 966

No: 201604001/C3[2017] EWCA Crim 966
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 27 June 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE McCOMBE
MR JUSTICE HOLROYDE
HIS HONOUR JUDGE ZEIDMAN QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
GARETH GEORGE MORRIS
Computer Aided Transcript of the Stenograph Notes ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Stein appeared for AppellantMr G Roberts appeared for Crown
J U D G M E N T
[1]MR JUSTICE HOLROYDE: On 30th June 2016 in the Crown Court at Chester this appellant was convicted of an offence of causing death by careless driving, contrary to section 2B of the Road Traffic Act 1988. On 1st August he was sentenced by the learned trial judge, His Honour Judge Dutton, to a community order for 12 months, with requirements of unpaid work and supervision. He was also ordered to be disqualified from driving for 2 years and until an extended driving test was passed.[2]He now appeals against his sentence by leave of the single judge.[3]The sole ground of appeal advanced on his behalf by Mr Stein is that the 2-year period of disqualification was manifestly excessive in all the circumstances.[4]We are grateful both to Mr Stein and to Mr Roberts, on behalf of the respondent, for their attendance and assistance.[5]The appellant was born on 17th December 1956 and so is now 60 years old. He was 57 when he committed the offence on 14th June 2014. The stark and desperately sad facts can be stated very briefly. At around 10.00 pm the appellant was driving his car with three passengers in the middle lane of the M6 motorway. Matrix signs were advising a maximum speed of 50 miles per hour, those notices apparently having remained illuminated after an earlier and unconnected incident. By misfortune a Mercedes car had come to a halt in lane 2 ahead of the appellant. The driver of the Mercedes, unable to move his car, had activated the hazard flashing lights and retreated to the safety of the hard shoulder. It seems that the Mercedes was in that stationary position for a significant period of time, perhaps up to 20 minutes. A number of cars travelling in lane 2 saw and avoided it. The appellant did not. He crashed into the rear of the Mercedes, his speed at impact being estimated at around 60 to 70 miles per hour. One of his passengers suffered fatal injury. Another of the passengers (the son of the deceased) sustained serious injuries which kept him off work for 6 months.[6]When questioned, the appellant said that he had not seen the Mercedes until he was one car's length away and he was not able to avoid it.[7]The appellant was a man of previous good character. He had a clean driving licence and no record of motoring offences. Remarkably, however, during the lengthy period which elapsed between this collision and his trial he incurred two fixed penalties for offences of exceeding the speed limit.[8]A pre-sentence report recorded that although the appellant said that he regretted the incident, he still did not feel there was any fault on his part. He was assessed by the author of the report as having minimum victim empathy and not readily taking responsibility for his own behaviour.[9]The court heard victim personal statements from the injured son of the deceased and from his siblings. These made clear, in very moderate terms, the profound impact which the death had had on them and on other members of the family.[10]Member of family had met the appellant and they accepted that he struck them as genuinely remorseful and upset. They generously recognised that the appellant had been a very close friend of the deceased and had himself therefore suffered loss as a result of the death. With commendable objectivity and fairness they indicated that their own emotions towards the appellant had moved from anger to forgiveness. They said in terms that they did not feel vindictive towards him. They did however make clear that they did want him to understand how his inattention had affected so many people. Very regrettably the appellant for his part, in telling the author of the pre-sentence report about his meeting with the deceased's family, said that they did not hold him accountable. That was not what they had said. It was a revealing glimpse of his character, confirming the author's assessment of the lack of empathy.[11]The Sentencing Guidelines Council has published a Definitive Guideline for sentencing for offences involving causing death by driving. With some hesitation the learned judge accepted the submission of counsel that the offence came at the higher end of the lowest category, that is to say the category of offence involving "careless or inconsiderate driving resulting from momentary inattention with no aggravating factors."[12]On that basis he imposed the community order and its attendant requirements to which we have referred. Mr Stein makes no complaint about that aspect of the sentencing.[13]At page 6A-B of the sentencing remarks the learned

judge then said this:

"This is a serious case, disqualification is quite inevitable. In the circumstances I take the judgment that disqualification for two years is called for in this case and that you will not be able to drive again until you have taken an extended driving test."
[14]Parliament has prescribed that upon conviction of this type of offence the offender must be disqualified for at least 12 months. Mr Stein submits that in extending that minimum disqualification to a period of 2 years the learned judge imposed a term of disqualification which was manifestly excessive for a man of previous good character and with a previously good driving record. Mr Stein submits that in so far as there may be any concern about the appellant's future driving, that concern was amply met by the requirement that he pass an extended driving before resuming driving.[15]Mr Stein accepts that the period of disqualification properly formed an important part of the overall punishment for the offence. That it does so is acknowledged in paragraph 30 of the Sentencing Guideline to which we have referred. Mr Stein submits however, that the length of the period of disqualification in this case failed to take sufficient account of the need to rehabilitate the offender.[16]We note that it has not been suggested at any point on behalf of the appellant that he has any special pressing need to be able to drive. It seems that he simply wishes to be back on the road as soon as he can. We note that in that respect the circumstances of this case differ from the circumstances in R v Geale [2013] 2 Cr App R(S) 17, with which Mr Stein drew certain comparisons. In Geale, Hickinbottom J (as he then was), giving the judgment of the court, said that while the primary purpose of disqualification is to protect the public from the risk posed by an offender's driving there is or may also be an element of punishment. Towards the conclusion of paragraph 13 of his judgment Hickinbottom J said:
"When considering whether the length of the period of disqualification is manifestly excessive, one therefore has to consider it in the context of the sentence imposed and the ancillary orders as a whole."
[17]As the learned sentencing judge said, this was a serious offence of its kind. The presence of a stationary vehicle in lane 2 of a motorway is of course an unexpected hazard. It was a hazard for which the appellant of course bore no responsibility. It was a hazard which undoubtedly gave rise to a difficulty for other drivers using the motorway at that time. But the stark fact is that the Mercedes car was there to be seen. Other drivers saw it and successfully avoided it. The appellant admitted that he had seen the matrix warning signs but it is apparent that he had not followed their advice. It may well be, as Mr Stein observes, that he was not the only motorist on the motorway that evening to adopt that approach. But the inescapable fact is that he failed to see the stationary car with its flashing lights ahead of him.[18]We agree with the learned judge that that there was here plain evidence of the offence. We agree with his observation that it is quite extraordinary that the appellant apparently still does not accept any fault on his own part.[19]In looking to any risk posed by future driving by the appellant, that continuing unwillingness to accept that he did anything wrong, despite having caused the death of one man and serious injury to another by colliding with a stationary car with flashing hazard lights, is a worrying feature. So too is the fact that his previously unblemished driving record was blemished, even after this incident, by the commission of two speeding offences. Those are matters which the judge was entitled to take into account in determining the appropriate period of disqualification. He was also entitled to impose a period of disqualification in excess of the statutory minimum period of 12 months, as part of the overall punishment for this serious offence.[20]We have listened carefully to Mr Stein's submission, but we are not persuaded that there is any ground whatsoever for interfering with the order imposed by the learned judge below. This appeal accordingly fails and is dismissed.