Ali, R v [2018] EWCA Crim 2359

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Case No 2018/01244/A1

[2018] EWCA Crim 2359

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday 3 rd October 2018

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE HOLROYDE

MR JUSTICE GOOSE

and

HIS HONOUR JUDGE WALL QC

(Sitting as a Judge of the Court of Appeal Criminal Division)

Between

R E G I N ACrown

- v -

Between

LIAQUAT ALI

Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

Mr A T A Dallas appeared for Appellant

Mr M Donkin appeared for Crown

J U D G M E N T

Tuesday 3 rd October 2018

[1]On 30th January 2018, in the Crown Court at Bradford, before His Honour Judge Durham Hall QC, the appellant, Liaquat Ali, who is aged 31, pleaded guilty to causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988. On the 14th March 2018 he was sentenced by the same judge to five years and two months' imprisonment. He was disqualified from driving for a period of seven years and five months, pursuant to section 35A of the Road Traffic Offenders Act 1988 and he was ordered to pass an extended driving test before being permitted to drive again.

[2]The appellant appeals against his sentence with the leave of the single judge.

[3]On 20th September 2017, shortly before 2pm, the appellant was driving a recently acquired Volkswagen Golf on the A6181 Leeds Road in Bradford city centre. The road comprised a dual carriageway with a speed limit of 30mph in the vicinity of public buildings, a shopping centre and the city's main railway station. There was traffic on the road and a number of pedestrians were in the vicinity.

[4]The appellant drove his motor vehicle, which contained a young passenger, at a speed that was later assessed to have been between 47.4mph and 49.3mph. The appellant's driving was recorded upon CCTV cameras which showed that in the moments leading up to the collision a delivery van was travelling in the same direction as the appellant's vehicle, but in the nearside of the dual carriageway. The weather was dry and the visibility was clear. At the same time the deceased, Kathleen Farnham, who was aged 54 and was accompanying her young son on the nearside pavement, was walking towards the Job Centre building adjacent to the road. The deceased's son had run ahead of his mother and had crossed the dual carriageway before her. The driver of the delivery van observed the deceased as he approached the pedestrian crossing which displayed green lights for the vehicular traffic. The driver of the van saw the deceased glance at the road before she began to run across it. The driver reduced his speed to between 25 and 28mph to permit the deceased to safely to cross the road.

[5]Travelling in the same direction as the delivery van was the appellant. He was travelling at a speed of up to 49.3mph, substantially in excess of the other vehicles. The appellant undertook one vehicle at speed, before sharply turning to the off-side to overtake the delivery van. One witness who was driving on the dual carriageway described the appellant's driving as "driving like an idiot". The CCTV footage showing the appellant's driving might be said to vindicate that observation. Before reaching the delivery van, the deceased was visible to the appellant, but once he commenced the overtaking manoeuvre she was not. Had the appellant been driving within the speed limit, the deceased would have safely crossed the road. In the circumstances of this case, it was the appellant's greatly excessive speed which caused the appellant's vehicle to collide with the deceased causing her death.

[6]The emergency services were quickly to the scene but, despite their best efforts, the deceased's life could not be saved. She was pronounced dead at the scene.

[7]The appellant was arrested at the roadside. He told witnesses that he had not seen the deceased. Examination of his vehicle revealed no defects relevant to the collision. In his police interview the appellant told officers that he had simply been driving around, passing time until he had to collect his children from school. He said that the lights had been green in his favour and that the deceased had come from the side, such that he had been unable to avoid hitting her. The appellant was unsure whether the speed limit was 30 or 40mph, despite stating that he used the road often and on a daily basis. He said that he had owned the car for a few months. He was remorseful during the interview.

[8]A victim personal statement by Mr Mark Farnham, the deceased's older son, was before the court at the sentence hearing. The deceased had been married for thirtyfive years and had five children and eight grandchildren. The deceased's death has had a profound effect upon her family and friends. Mr Farnham's statement movingly described the loss felt by his family.

[9]In passing sentence the judge concluded that the appellant's driving fell between level 1 and level 2 of the Sentencing Guidelines Council's Definitive Guideline for causing death by dangerous driving. The judge adopted a starting point for sentence after trial of seven years before adjusting that sentence. It was concluded that the appellant's speed was grossly excessive and that it included dangerous driving manoeuvres, undertaking other traffic, before sharply driving into the offside lane towards a clearly marked pedestrian crossing. The presence of other vehicles and pedestrians in a city centre led to the conclusion that this offence fell between level 1 and 2 of the Guideline. The judge discounted the starting point for sentence by six months to reflect an additional mitigating factor, namely, that the deceased appeared to cross the road without activating the pedestrian crossing to bring the traffic to a halt. Whilst this may have been better expressed as the fact that the traffic lights were set at green, rather than indicating, wrongly, some sort of contributory negligence by the deceased, it was a factor that was taken into account by the judge. For our part, we would have attached little weight to such a point, given the circumstances of the case. The judge also took into account the community impact of fatal road accidents, which he treated as an aggravating factor. He stated (at page 4A-C):

"Also there is established community impact in this case, from … a senior officer to whom the task was delegated, which indicates how, as we all know, Bradford is indeed subject to a high degree of prevalence, especially bad and lethal driving in residential areas, and that is a serious problem in this fourth or fifth largest metropolitan district outside London. That community impact was required so that the perception of the court has and will always be translated into an appropriate aggravating feature." 9. "

According to government statistics as published in September 2016, Bradford has the 55th highest reported number of fatalities in England out of 152 local authorities. The research also shows Bradford having the 35th highest reported number of casualties in relation to killed or serious injury in England out of 152 local authorities." That evidence was, unfortunately, not more specific upon those fatalities being caused by dangerous or careless driving offences.

[10]It is suggested on behalf of the appellant that, in the course of his sentencing remarks, the judge appeared to create a local sentence guideline for causing death by dangerous driving. This criticism by the appellant is based upon a passage at page 2G-H, in which the judge stated:

"But it would be rare indeed, Mr Ali, as I suspect you know and your advisers fear, it will be rare indeed in Bradford, after trial certainly where sentences of much less than seven years will be passed. I say “rare” for of course there are always cases, as the guideline requires, that demand a different approach."

We do not conclude from this passage that the judge intended to create any local sentence guideline. We do not, therefore, need to deal with this discrete point further.

[11]When imposing sentence, the judge declined to grant a full discount for the guilty plea. He permitted a 20 per cent reduction because the appellant had not indicated his plea at the first hearing in the Crown Court. After applying that discount, the sentence of 62 months' imprisonment was arrived at. The appellant was then disqualified from driving for five years which, after applying the provisions of section 35A of the Road Traffic Offenders Act 1988, led to an extended disqualification of seven years and five months.

[12]On behalf of the appellant, it is submitted by Mr Dallas that the judge treated this offence at too high a level under the Guideline. It is argued that the offence was at the upper range within level 3, permitting a starting point of five years, rather than the seven years adopted by the judge. Further, it is argued that it was inappropriate to take the community impact evidence, which had not been served upon the defence or referred to by the prosecution during the sentence hearing, as a factor aggravating the seriousness of the case. The appellant also argues that the discount for the guilty plea should have been at one-third, and not reduced to 20 per cent. Finally, it is argued that the disqualification period of five years, after completion of the custodial portion of the prison sentence, was excessive.

[13]On behalf of the respondent, it is argued by Mr Donkin, for whose appearance following the late return of the brief this court is grateful, that the judge correctly identified the level of seriousness of the offence at the borderline between level 1 and level 2, and that he properly applied the community impact evidence, although it is conceded that it was not brought to the attention of the appellant in good time before the sentencing hearing. Further, the respondent submits that the judge was entitled to reduce the discount for the guilty plea when no earlier indication of the plea had been made. In addition, the respondent submits that the disqualification period was appropriate and not disproportionate, given the circumstances of the offence.

[14]We are satisfied, having considered the evidence, that identifying the seriousness of this offence as being between level 1 and level 2 of the Guideline was appropriate. The appellant's driving in the environment in which it took place was obviously greatly excessive. The undertaking and sharp overtaking manoeuvres at such speed and whilst driving towards an obvious pedestrian crossing rendered this driving at a high level of dangerousness. The submission that it was driving which created only a significant risk of danger, rather than a substantial risk, is one that we must reject. Whilst it is correct that other aggravating features were not present in this case, for example, driving under the influence of drink or drugs, or failing to stop after the collision, the circumstances of this dangerous driving required a sentence towards the top of the range for level 2 offences.

[15]There are, however, two points of principle that arise in this appeal. The first concerns the community impact aggravating factor used by the judge when sentencing. The Sentencing Guidelines Council's Overarching Principles (Seriousness) Guideline describes the approach that sentencers should take in relation to the issue of prevalence. At paragraphs 1.38 and 1.39 the Guideline reminds sentencers that the seriousness of an individual case should be judged on its own dimensions of harm and culpability, rather than as part of the collective social harm. Although there may be exceptional local circumstances that arise which may lead a court to decide that prevalence should influence sentencing levels, it is essential that sentencers should have supporting evidence from an external source to justify claims that a particular crime is prevalent in the area and that there is a compelling need to treat the offence more seriously than elsewhere. The Guideline goes on to state:

"The key factor in determining whether sentencing levels should be enhanced in response to prevalence will be the level of harm being caused in the locality. Enhanced sentences should be exceptional and a response to circumstances. Sentencers must sentence within the sentencing guidelines once the prevalence has been addressed." 16. "

First, there must be evidence provided to the court by a responsible body or by a senior police officer. Secondly, that evidence must be before the court in a 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 about that material can be made. Even if such material is provided, a judge will only be entitled to treat prevalence as an aggravating factor if: (a) he is satisfied that the level of harm caused in a particular locality is significantly higher than that caused elsewhere (and thus already inherent in the guideline levels); (b) that the circumstances can properly be described as exceptional; and (c) that it is just and proportionate to increase sentence for such a factor in the particular case before him. It is clear, therefore, that a court should be hesitant before aggravating a sentence by reason of prevalence. …"

[16]The respondent, while seeking to uphold the judge's use of community impact evidence to aggravate the seriousness of the sentence in this case, concedes that the statement of Detective Inspector Simpson was not made available or brought to the attention of the appellant before the sentence hearing. It follows that the appellant was not given sufficient time or opportunity to make submissions upon the evidence before it was applied by the sentencing judge. We might also add that the evidence itself has the appearance of being too general when the issue to be addressed was the exceptionally high prevalence of death caused by dangerous driving. If the issue were to arise again, then it would be more appropriate if the evidence were focused upon the particular type of offence. The material provided to the court in Mr Simpson's statement does not make clear whether the statistics relate to death caused by dangerous driving or more general road traffic fatalities. In these circumstances, we are satisfied that in treating the community impact evidence as an aggravating factor of the appellant's sentence, the court fell into error. It should not have been relied on in the circumstances that arose in this case. We must, therefore, adjust the sentence to reflect this. The appropriate sentence after trial for this offence and after taking into account the mitigation, including the contents of the psychologist's report of Mr Eric Wright, should have been, in our judgment, six and a half years' imprisonment.

[17]The second point of principle concerns the guilty plea discount. The appellant's submission that the judge should have given a full discount for the guilty plea, rather than the 20 per cent granted, is based on the contention that the appellant had a significantly reduced ability to understand what was alleged or otherwise made it unreasonable to expect the appellant to indicate a guilty plea sooner than he did. This is an application of exception F1 to the Reduction in Sentence for a Guilty Plea in the guideline of the Sentencing Council. The maximum level of reduction in sentence for a guilty plea is one-third, which should be applied where a guilty plea is indicated at the first stage of proceedings. It is important to observe that it is the indication of a guilty plea which is important, not the first opportunity to plead guilty to an indictment. In this case the appellant appeared before the Magistrates' Court and was sent to the Crown Court on 21st October 2017. Two bail hearings in the Crown Court then followed, and the first hearing in the Crown Court, at the Pre-Trial Preparation Hearing, was on 16th November 2017. By that date the Police Collision Investigator's Report had not been served. At that hearing, the judge expressly directed that there should be no loss of credit between 16th November and the next/or adjourned hearing to allow for the service of the report. That did not occur until 19th December 2017. After the service of that report, the appellant offered to plead guilty to death by careless driving which, by 30th January 2018 the prosecution had confirmed its rejection of such an offer. On that date, 30th January 2018, the appellant pleaded guilty before the court.

[18]In reducing the discount for the guilty plea the sentencing judge was satisfied that the appellant had not indicated his plea of guilty at the first stage of proceedings. Although the appellant wished to see the expert evidence report as to the cause of the accident, the judge clearly took the view that the appellant must have known that his speed had been excessive, together with the manner of his driving, and that he had caused the deceased's death. He could have indicated to the magistrates' court that the only issue was whether the driving was dangerous or careless and that all other matters were conceded. He did not give such an indication. He stated that his plea would be not guilty, which he maintained until an offer to plead to the lesser offence was made whilst in the Crown Court. We are satisfied that the judge in this case was entitled to conclude that the appellant did not have a significantly reduced ability to understand what was alleged, or that it was otherwise unreasonable to expect him to indicate a guilty plea, or what the real issues were. However, given that the judge at the Pre-Trial Preparation Hearing sought to preserve the appellant's position upon credit for the guilty plea, we are satisfied that the appropriate discount should have been one of 25 per cent, rather than 20 per cent. Therefore, the appellant's sentence should have been discounted from six and a half years' imprisonment (78 months) to one of 58 months' imprisonment – a 25 per cent discount for the guilty plea.

[19]Finally, the appellant submits that the disqualification for a period of five years, extended by the period of time served in custody, was disproportionate. We have considered this submission carefully. We are satisfied that such a disqualification was not excessive and was entirely justified on the facts of this case. Therefore, given the reduction in the custodial sentence from 62 months' imprisonment, which was imposed by the judge, to 58 months' imprisonment (four years and ten months), the disqualification from driving must be for an extended period of seven years and three months, allowing for the two months served of the disqualification by the interim order.

[31]Accordingly, we allow the appeal against sentence. We quash the sentence of 62 months' imprisonment and impose a sentence of 58 months' imprisonment. Also, we reduce the extended disqualification, pursuant to section 35A of the Road Traffic Offenders Act 1988, to seven years and three months.

[32]To that extent the appeal is allowed. ________________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________________________