Magee, R v [2017] EWCA Crim 972

Case No 2017/01578/A3[2017] EWCA 972 (Crim)
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 29 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
WILLIAM MAGEE
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 T Smith QC appeared for AppellantMr S Taylor appeared for Crown
J U D G M E N T
[1]MR JUSTICE HOLROYDE: On the morning of Saturday 13th February 2016 Mrs Barbara Phipps, then 73 years old, was riding her bicycle on London Road, Teynham, in Kent, when she was struck and killed by an articulated lorry driven by the appellant.[2]The collision was captured by a nearby CCTV camera. The relevant footage lasts only a matter of seconds. But in those few seconds Mrs Phipps' life was needlessly ended and many other lives were irrevocably changed. Mrs Phipps' loving family and friends were left to grieve for her. The appellant, a 58-year-old man, of previous good character, with a long and unblemished career as a professional driver, is plainly overcome by what the judge below readily accepted as genuine and intense remorse, and has brought upon himself not only a sentence of imprisonment, but also the end of his driving career. On any view, it is a very sad case.[3]The case comes before this court by leave of the single judge on an appeal against the sentence of 3 years' imprisonment, imposed by His Honour Judge Joy, in the Crown Court at Maidstone on 3rd March 2017.[4]No specific appeal is brought against the order made by the learned judge disqualifying the appellant from driving for 5 years 6 months. But the period of that disqualification is in part determined by the length of the prison sentence and so necessarily forms part of the appeal.[5]The court is grateful to Mr Smith QC, on behalf of the appellant, and Mr Taylor, on behalf of the respondent, for their written and oral submissions.[6]In brief summary the relevant facts were these. The scene of the fatal collision is a single carriageway road carrying one lane in each direction, which forms part of the A2. At the relevant point the road passes through a built-up area, with residences, shops and businesses and is subject to a 30 miles per hour speed limit. On the north side of the carriageway is a Co-op store to which the appellant had been making a delivery in the course of his employment.[7]The appellant was driving an articulated lorry. In order to make the delivery, he had parked on the north side of the road, with his lorry facing west. In other words, he was parked on the wrong side of the road. He was parked on double yellow lines quite close to a junction. In addition to being in breach of provisions of the Highway Code, parking in that position was contrary to his employer's policy.[8]The lorry was fitted what a total of six external mirrors. On its nearside, it had a main rear view mirror, a wide angle mirror and a proximity mirror. For a driver to run through a check of all the exterior mirrors would take about 3 seconds. In addition the lorry was fitted with a camera, capable of providing the driver with an extensive wide angled view along the near side of the lorry and outwards to the driver's left. The camera is activated when the driver activates his nearside indicator. Within about 2 seconds a screen or monitor inside the cab displays the image captured by the camera.[9]Having completed his delivery the appellant returned to his cab to drive to his next destination. It seems that Mrs Phipps had been wheeling her bicycle for a time. She then mounted it on the south side of London Road, that is to say on the side of the road across from the appellant's lorry, at a point near to the rear end of the trailer. She began to cycle westwards. She was on her correct side of the road, close to the kerb and riding perfectly properly. At that point the lorry to her right, on the other side of the road, was stationary. It was, as we have said, also facing west and therefore pointing in the same direction as her line of travel.[10]The appellant's next delivery required him to drive westwards. It was therefore necessary for him to pull away from the north side of the carriageway and cross the carriageway, to take up his proper position on the south side. His way was clear, so far as oncoming traffic was concerned. It seems that a car travelling westwards behind the lorry may have slowed to allow the lorry to emerge.[11]The CCTV footage shows that the lorry began to move slightly before the appellant activated his nearside indicator. At that point Mrs Phipps, on the other side of the road, was level with the lorry at a point near to the front of the trailer and approaching the tractor unit. She would have had a minimal, if any, opportunity to see the lorry's indicator come on.[12]The appellant plainly did not see Mrs Phipps. He pulled out and moved diagonally across the carriageway towards the south side. As the CCTV footage shows, this manoeuvre brought the lorry inexorably towards Mrs Phipps at an angle and struck her. Understandably, in view of the size of the lorry, the appellant did not realise that he had done so. He drove on until he received a phonecall telling him to stop and await the arrival of the police, which he duly did.[13]The appellant was initially charged with causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988. He pleaded not guilty to that charge and the case was listed for trial. In advance of the trial the appellant indicated that he would plead guilty to causing death by careless driving, contrary to section 2B of the 1988 Act. The prosecution having carefully considered the position accepted that plea. It was submitted by counsel, and the learned judge accepted, that in all the circumstances an appropriate reduction from the sentence which would have been passed after trial would be 25% to reflect that guilty plea.[14]It is relevant to pause to note the difference between the statutory definitions of the two offences. By section 2A of the 1988 Act, a person is to be regarded as driving dangerously if the way he drives falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous. By section 3ZA of the same Act, careless driving is defined as driving which "falls below what would be expected of a competent and careful driver". Thus the two offences give rise to the same terrible harm, namely death, but involve differing levels of culpability.[15]The section 1 offence has a maximum sentence of 14 years' imprisonment. The maximum sentence for the offence of causing death by careless driving is one of 5 years' imprisonment. The court must of course sentence only for the offence of which an offender has been convicted.[16]In his careful submissions, Mr Smith has invited close attention to the Definitive Guideline published by the Sentencing Guidelines Council in relation to offences of causing death by driving. Section 125 of the Coroners and

Justice Act 2009 states that:

"(1) Every court— (a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function unless the court is satisfied that it would be contrary to the interests of justice to do so."
[17]Mr Smith began by inviting our attention to the introduction which is to be found at pages 2-7 of the guideline. He points out that paragraph 4 of that introduction indicates that the levels of seriousness for the various offences covered by the guideline have been determined by reference only to determinants of seriousness. An explanation follows of the typical determinants of seriousness.[18]Paragraph 4 of the Introduction continues as follows:
"Aggravating factors will have the effect of either increasing the starting point within the sentencing range provided or, in certain circumstances, of moving the offence up to the next sentencing range. The outcome will depend on both the number of aggravating factors present and the potency of those factors. Thus, the same outcome could follow from the presence of one particularly bad aggravating factor or two or more less serious factors."
Then at paragraph 7 the Introduction says this:
"The degree to which an aggravating factor is present (and its interaction with any other aggravating and mitigating factors) will be immensely variable and the court is best placed to judge the appropriate impact on sentence."
[19]Mr Smith submitted that the effect of that guidance in the Introduction to the guideline, is that once an offence has been placed within a particular category under the guideline, then the starting point must be the starting point identified for that category. That is right, as far as it goes, but with respect, it is necessary also to look, as part of the overall sentencing exercise, at the reasons why the offence comes within a particular category. If it comes within that category for more than one reason, or because it is a particularly serious example of one factor, that is something which the court must of course take into account in assessing the appropriate sentence.[20]The guideline identifies three categories of the offence of causing death by careless driving. These involve different levels of culpability. For each of those categories the guideline identifies a starting point for sentence and a sentencing range. Category 1 which is defined as "careless or inconsiderate driving falling not far short of dangerous driving", has a starting point of 15 months' custody and a sentencing range of 36 weeks to 3 years' custody. Category 2, described as "other cases of careless or inconsiderate driving" has a starting point of 36 weeks' custody and a range from a high community order to 2 years' custody. Category 3, "careless or inconsiderate driving arising from momentary inattention with no aggravating factors" has a starting point of a medium level community order and a range from a low level community order to a high level community order.[21]The approach to be taken by the sentencing judge is set out at page 8 of the guideline, in a section headed ‘Sentencing ranges and starting points’. So far as is material for present purposes, that section includes the following:
"3. The expected approach is for a court to identify the description that most nearly matches the particular facts of the offence for which sentence is being imposed. This will identify a starting point from which the sentencer can depart to reflect aggravating or mitigating factors affecting the seriousness of the offence (beyond those contained within the column describing the nature of the offence) to reach a provisional sentence. 4. The sentencing range is the bracket into which the provisional sentence will normally fall after having regard to factors which aggravate or mitigate the seriousness of the offence. The particular circumstances may, however, make it appropriate that the provisional sentence falls outside the range ..... 6. Once the provisional sentence has been identified by reference to those factors affecting the seriousness of the offence, the court will take into account any relevant factors of personal mitigation, which may take the sentence beyond the range given."
[23]Having moved upwards or downwards from the starting point to reflect all the aggravating and/or mitigating circumstances of the case, the court must then make any appropriate reduction for a guilty plea.[24]The guideline relating to the offence of causing death by careless driving identifies certain specific additional aggravating or mitigating factors. Mr Smith submits, and we agree, that none of those factors is present in the particular circumstances of this case. The list is however by no means comprehensive.[25]In his sentencing remarks the learned judge made the following points about the seriousness of this offence. First, he pointed out that the appellant had chosen to park in a very unwise position. Secondly, like all road users the appellant would know that "the near side of a large lorry, particularly when turning or manoeuvring towards the left, can create a real danger to the lives of cyclists and motor cyclists." Thirdly, the fitting of the nearside camera was not a legal requirement but the appellant's employers had fitted it and it was available for him to use. He chose not to do so. He had told the police that he did not find it particularly useful in the course of his driving and rarely used it. Fourthly, he began to pull out from his parking position momentarily before he activated the nearside indicator. By doing so, said the judge, he "defeated the purpose of the on-board monitor."[26]Fifthly, there was before the court agreed expert evidence, summarised in a helpful note, part of which read as follows:
"5. Immediately prior to moving off from stationary, Mrs Phipps would have been on the cusp of being within the available view of the nearside mirrors fitted to the vehicle. 6. Once the left indicator light is illuminated, within 2 seconds, the driver would have a display of nearside of his vehicle available within the cab via the rear view camera. Mrs Phipps would have been available to be seen from this camera. The mandatory use of the camera is not governed by legislation. 7. During the remainder of the manoeuvre of the vehicle crossing the carriageway into the northwest bound lane, Mrs Phipps would not have been within the available view of the main nearside rear view mirror of the vehicle and only at the extreme edge of the nearside wide angle mirror. Late in the manoeuvre she would have been visible in the cab proximity mirror. Albeit that a driver would not generally use this mirror once the manoeuvre had been undertaken. She would however have been within the available view of the camera throughout the manoeuvre."
[27]Sixthly, the judge concluded that the appellant had not used the mirrors properly and had not used the camera and monitor at all. He summarised the position as follows at page 10A-C of his sentencing remarks:
"So, having parked the wrong way, on double yellow lines and very close to a junction, those three matters meant you were creating a hazard before you even left the vehicle to go into the Co-op and before you later got in the cab to drive it away. You then increased the risks by deliberately not looking at the on-board equipment which was there to eliminate or reduce the danger of not seeing someone on your left side. You pulled out before even activating it. You deliberately did not look. Secondly, you did not look in the mirror, adequately or at all. Thirdly, you start off before even indicating. So a further three severely aggravating causes of what actually happened."
[29]The judge referred to the sentencing guideline. He noted that at page 14 of the guideline the Sentencing Guidelines Council specifically recognised that there will be cases which are on the borderline between dangerous and careless driving or which involve a number of factors that significantly increase the seriousness of an offence. As a result, the guideline for the offence of causing death by careless driving identifies three levels of seriousness, the range for the highest of which overlaps with ranges for the lowest level of seriousness for the offence of causing death by dangerous driving.[30]The guideline then continues at paragraph 7 on page 14:
"The starting point for the most serious offence of causing death by careless driving is lower than that for the least serious offence of causing death by dangerous driving in recognition of the different standards of driving behaviour. However, the range still leaves scope, within the 5 year maximum, to impose longer sentences where the case is particularly serious."
[31]We note in this context that in relation to offences of causing death by dangerous driving the guideline identifies a starting point for the least serious category of 3 years' custody and a range of 2 to 5 years.[32]Having referred to those passages in the guideline the learned

judge then said that at page 12D-F:

"The starting point for that category is lower than for the least serious offence of causing death by dangerous driving and that is in recognition of the different standards of driving behaviour. However, the range still leaves scope within the five-year maximum to impose longer sentences where the case is particularly serious and that is my finding in this case. As I say, in my view you behaved and drove this vehicle in an utterly irresponsible way. I take the view, then, that it is a particularly serious case. I take account of your plea of guilty. I take account of your remorse and I recognise the trauma of this to you as well. I also take account of your previous good driving record."

The judge then passed, as we have indicated, the sentence of 3 years' imprisonment.

[33]Mr Smith does not challenge the judge's conclusion that the offence was so serious that nothing other than a custodial sentence would suffice. He does not, for the purposes of this appeal, seek to pursue the argument advanced below, that the appropriate prison sentence could properly, and should, have been suspended. He does however argue that the sentence imposed by the learned judge was manifestly excessive. His core argument is that, assuming the offence was properly placed into the most serious category of the guideline, the sentence should not have been higher than the guideline starting point and should then have been reduced by way of credit for the guilty plea.[34]There are three particular grounds which Mr Smith puts forward. First, he points out that the judge did specifically recognise the mitigating features of previous good character, a good driving record and evident remorse. The judge must have weighed those factors in the balance against the aggravating factors before reaching a notional sentence, after trial, of 4 years' imprisonment, reduced to 3 years by the guilty plea. It follows, argues Mr Smith, that absent those mitigating factors, the judge must have had in mind that the seriousness of the offence was such as to require a sentence in excess of 4 years and necessarily close to the statutory maximum of 5 years. We agree with the logic behind that argument. From it Mr Smith goes on to argue that the sentence was far too high in all the circumstances.[35]Secondly, Mr Smith submits that in his sentencing remarks the judge was in effect assessing the seriousness of this offence as involving a level of culpability akin to a bad case of dangerous driving. Thus, submits Mr Smith, the judge went beyond the appropriate sentence for the offence which the appellant had admitted and for which alone he could be sentenced.[36]Thirdly, Mr Smith emphasises that the on-board camera was not a legal requirement and that there was no legal obligation upon the appellant to use it. He submits that the judge gave undue weight to the failure to use it.[37]Overall, Mr Smith argues that the judge imposed a sentence which was not only close to the maximum for the offence but was also outside the category range stated in the guidelines. Bad though the case is, as Mr Smith acknowledges, he argues that the sentence was therefore far too long.[38]We deal first with the third of Mr Smith's particular grounds of appeal. True it is that the fitting of such a camera was not a mandatory requirement. But it was fitted precisely because it is capable of providing the driver with a view to the nearside of his lorry, which is not, or may not be, available to him by the use of his external mirrors. In that sense, it was a device which was capable of eliminating or at any rate minimising the blind spot which would exist if only the external mirrors were used. The expert evidence from which we have quoted makes it plain that during the manoeuvre there were certain times when Mrs Phipps could not be seen in the external mirrors but she could have been seen on the on-board monitor.[39]Given that the equipment was available to the appellant, it seems to us that by choosing not to use it he deliberately imposed upon himself the risk of someone being in his blind spot. We therefore are not persuaded by Mr Smith's argument that simply because there was no legal obligation to fit and/or use the camera, therefore the decision not to use it, when it could and would have helped, is not a factor to be taken into account in aggravation of the offence.[40]As to the second of Mr Smith's specific grounds, it is of course, correct that the sentence imposed by the learned judge falls within a range identified by the Sentencing Guidelines Council, as applicable to some cases of causing death by dangerous driving. But in the passage from the guideline which we have just quoted, the guideline specifically provides for that overlap and recognises that there will be particularly serious cases of causing death by careless driving which may call for a long sentence.[41]In the sentencing remarks which we have quoted, we are not persuaded that the judge fell into the error of treating this case as if it were an offence of causing death by dangerous driving. Rather, in our judgment, he was explaining very thoroughly his reasons for concluding that this was a particularly serious case of causing death by careless driving and one which in all the circumstances merited a sentence after trial in excess of the category range.[42]As to the principal submission that the sentence was simply too long, we have considered this with great care. We are conscious that it is indeed a long sentence for a man of previous good character, who is clearly broken by his sense of responsibility for what he has done. We agree however with the judge below that there were here grave aggravating features of the offence. Because of his experience and his good driving record the appellant had been entrusted with the responsibility of driving the extremely large lorry which was involved in this fatality. Anyone driving a vehicle of such a size knows its capacity to cause death or serious injury in any collision. Every road user, and in particular every driver of a large goods vehicle, knows of the particular vulnerability of those on two wheels sharing comparatively narrow and congested roads with both motorcars and large goods vehicles.[43]The appellant had placed himself into a position of difficulty by parking where he did. No doubt it is correct, as Mr Smith points out, that he was by no means the only person to park for reasons of convenience in that particular location. But having done so, it was incumbent upon him to take care when moving away from his parking place and diagonally across the carriageway. Sadly, for whatever reason, and in contrast to his long, impeccable driving record, he failed on this occasion to do so.[44]The judge was entitled to find that the appellant cannot have looked properly in his mirrors. He chose not to look at the monitor at all. By activating his nearside indicator after he had started the manoeuvre the appellant not only deprived himself of the assistance of the on-board monitor, he also deprived Mrs Phipps of any opportunity to see any warning that the lorry was about to emerge from her right and drive across towards her.[45]We bear very much in mind that this dreadful accident occurred within a matter of seconds. It was certainly not a case of prolonged inattention, or a general course of bad driving. But nor was it a case of brief inattention in the context of the ordinary exigencies of motoring, or brief carelessness in the context of an unwise action by another road user. Rather, it was carelessness in the context of manoeuvring from an unwise parking position, and in the context of failing to take the steps which were open to him to see and to avoid an innocent cyclist.[46]This was a serious offence. The sentence imposed was undoubtedly severe. It was higher than any of the individual members of this court would have imposed and it may be that other judges would have given rather more weight to the mitigating factors and in particular the personal mitigation. But although severe, we are not able to say that it went beyond the top of the range properly open to the learned judge. He did, in our view, conscientiously and properly apply the sentencing guideline. The resultant sentence was not wrong in principle, and severe though it was, the sentence was not, in our judgment, manifestly excessive in all the circumstances.[47]Accordingly, grateful though we are to Mr Smith for his careful submissions, this appeal fails and is dismissed.