Neher, R. v [2018] EWCA Crim 29

[2018] EWCA Crim 29Case No 201703247/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 12 September 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE BURNETT
MRS JUSTICE CARR DBE
MRS JUSTICE CHEEMA GRUBB DBE
Between
R E G I N ACrownv
Between
SUMAIYA NEHER
Computer Aided Transcript of the Stenograph Notes ofWordWave International Ltd trading as DTI,165 Street London EC4A 2DY,Tel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss E Garcia appeared for Appellant
J U D G M E N T (Approved)

Introduction

[1]This is the appellant's appeal against sentence brought with leave. The appellant, who is aged 22, pleaded guilty in the Magistrates' Court, was committed to Northampton Crown Court and then sentenced on 28th June 2017 for the following offences and as follows: on count 1, causing serious injury by dangerous driving contrary to section 1A of the Road Traffic Act 1988, nine months' imprisonment; and on count 2, for the identical offence, an identical sentence to run concurrently. The total sentence was therefore one of nine months' immediate imprisonment. A victim surcharge order was imposed and the appellant was disqualified from driving for two years and until an extended driving test was passed. In accordance with R v Needham [2016] EWCA Crim 455, the sentencing judge should have imposed an extension period pursuant to section 35A of the Road Traffic Offenders Act 1988 in relation to the disqualification from driving - a matter to which we will return.[2]We have been told that the appellant has in fact already been released from custody (on 5th September 2017) on home detention curfew. Her appeal is nevertheless pursued.[3]The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in relation to one of the victims, whom we shall identify as E, who is aged 12 years. We extend the order made under section 45 below to these appellate proceedings in identical terms.

The Facts

[4]The facts can be briefly stated. On 6th November 2016 at around 10.40 am the appellant was driving her Ford Focus car towards a junction between Mill Lane and the A508 Northampton. She drove through a red light at that junction and her car collided with a motorcycle driven by a man who we shall call Mr P, with E riding as his pillion passenger. The collision occurred at a three lane junction with a filter lane to the left which operated separately with separate traffic lights to those for the lanes going straight ahead. The appellant had approached the junction in the left filter lane, briefly indicating to turn left. However, she then braked slightly and travelled straight across the junction through the red light. She was in the wrong lane to do so. There were other stationary vehicles in the two filter lanes to her right correctly obeying the red traffic light. Whilst well into the junction ahead, the appellant's car collided with Mr P's motorcycle and both Mr P and E were projected into the air for some distance across the junction. They had been travelling from the direction of Harborough Road to the appellant's left. The light for their direction of travel was green. The incident was captured on the dash-cam of a vehicle which was in the middle lane of the junction behind the appellant and we have been able to view that footage.[5]Mr P suffered an open fracture to his right femur and fractures to his pelvis, spine, wrist and collar bone. All of these required surgical intervention, including the insertion of a metal bar in his right leg, a metal plate and screws in his pelvis and a metal element in his wrist. He was in hospital for over five weeks. E was in hospital for 12 days. Initially it was thought that her injuries were so bad she would not survive. But thankfully she made a good recovery. She suffered a number of facial fractures requiring stabilisation with titanium elastic nails, a cut above her eye required suturing but has not caused scarring, her right leg was fractured and there was significant scarring in respect of that injury, alongside some dental injury.[6]There was before the court a victim personal statement from Mr P recording amongst other things how he has not been able to work as an electrician due to his injuries and how his injuries and those of his daughter have curtailed many of their leisure activities. Grounds of appeal[7]For the appellant, it is said that the Judge erred in imposing an immediate period of custody resulting in a sentence that was manifestly excessive. No challenge is made either to the finding that the custody threshold was passed or as to the length of the custodial period. The narrow point on appeal is that the sentence should have been suspended, given in particular the appellant's personal mitigation.[8]Miss Garcia who appears before us, as she did below, presses on us in particular the following: the Judge was wrong to conclude that appropriate punishment could only be achieved by immediate custody. This is a reference to one of the factors identified in the Sentencing Council Guideline on the Imposition of Community and Custodial Sentences as relevant to the consideration of whether it is possible to suspend a sentence. The Judge failed to give sufficient weight to the appellant's mitigation. In addition, and in particular, as part of that mitigation Miss Garcia identifies to us the severe restrictions on the appellant's liberty as a result of her mother's Muslim beliefs, that the appellant had been the victim of repeated violence from a young age, but perhaps most materially that the appellant had been forcibly returned by extended family members to her family home only the night before this incident took place. This, it is said, is a material factor, at least in some part accounting for the appellant's conduct at the time of driving the next day.[9]In the light of all these matters, Miss Garcia submits that the conclusion that appropriate punishment could only be by immediate custody was wrong. Reference is also made to various authorities, including R v Harding [2016] EWCA Crim 7768, where this court imposed a sentence of 10 months' immediate custody in circumstances where there was a far greater level of injury. Ruling[10]Section 1A of the Road Traffic Act 1988 came into force in November 2012. Serious injury is physical harm amounting to grievous bodily harm for the purpose of the Offences Against the Person Act 1861. The maximum sentence available is five years' imprisonment. The maximum sentence for causing death by dangerous driving is 14 years. There are no sentencing guidelines for the offence of dangerous driving causing serious injury, but Treacy LJ in R v Dewdney [2014] EWCA Crim 1722 (at paragraph 20) confirmed that it was helpful to have regard to the Sentencing Council Guideline for Causing Death by Dangerous Driving in relation to the levels of offending identified. A sentencing judge is entitled to have regard to them bearing in mind always the distinction between the offences in terms of harm: see R v Jenkins [2015] EWCA Crim 105 (at paragraph 11).[11]This would, in our judgment, be Level 3 offending within the Sentencing Council Guideline for Causing Death by Dangerous Driving. This was driving that created a significant risk of danger characterised by a brief but obvious danger arising from a seriously dangerous manoeuvre. We derive no great assistance from the authorities on their facts. It is a highly fact-sensitive sentencing exercise in each case. This was worse driving than in, for example, the case of Harding which involved only a couple of seconds of distraction leading to a failure to slow down for traffic ahead, albeit that the injuries there to one victim involved were greater.[12]The new power to suspend was introduced by section 189(1) of the Criminal Justice Act 2003. The full decision making process for the imposition of custodial sentences is set out in paragraphs 1.31 to 1.33 of the Over-Arching Principles - Seriousness: Sentencing Council Guideline 2004. For present purposes, the relevant questions are: has the custody threshold been passed? If so, is it unavoidable that a custodial sentence be imposed? If so, can that sentence be suspended (in which case sentencers should make it clear that they would have imposed a custodial sentence if the power to suspend did not exist)? Can the sentence be served intermittently? If not, a sentence should be imposed to take immediate effect for the term commensurate with the seriousness of the offence.[13]One then has to have regard to the Guideline on the Imposition of Community and Custodial Sentences to which we have referred already. On the question of suspension the Guideline sets out the factors to be weighed in making sentencing decisions. Factors indicating that it would not be appropriate to suspend a custodial sentence are:
"- Offender presents a risk/danger to the public - Appropriate punishment can only be achieved by immediate custody - History of poor compliance with court orders."
Factors indicating that it may be appropriate to suspend a custodial sentence are:
" • Realistic prospect of rehabilitation • Strong personal mitigation • Immediate custody will result in significant harmful impact upon others. "
[14]Whether or not to suspend a custodial sentence is again always a highly fact-sensitive exercise: see for example the recent case of R v Reynolds [2017] 1 Cr App R (S) 42. There the unusual combination of circumstances existing justified the court taking the exceptional course of suspending a sentence passed for a first offence of taking prohibited items into prison.[15]Sentencing in driving cases such as these is always a difficult exercise. The Judge took time to consider the appropriate way forward. He had viewed the dash-cam footage. He stated that he had considered the available mitigation, alongside the Guideline for the Imposition of Community and Custodial Sentences.[16]However, in our judgment, the Judge did err in failing properly to heed the very strong personal mitigation available to the appellant. He had (on the available material) to proceed on the basis that the appellant did not deliberately drive through a red light but drove so inadvertently. Although on any view it was serious offending, involving dangerous driving and driving through a red light, the appellants’ culpability fell towards the lower end. The victims' injuries were serious, but fortunately good recoveries have been made, albeit that there remain permanent consequences.[17]In that context, and against that, the appellant was a 22-year-old student of positive good character. She was an inexperienced driver. She accepted responsibility from the outset, making admissions in police interview and at all times showed full remorse. She voluntarily gave up driving pre-sentence. She presented a low risk of re-offending. She would be vulnerable in a prison sentence. The consequences of imprisonment for her would be serious, including interference with her graduation from university in the following summer and further studies and the taking up of her first job offer. Additionally, the Judge, we are told, was aware of the full background material relating to the appellant's position the night before this incident, namely her forcible return against her wish to the family home. He made no express reference to this in his sentencing remarks.[18]The Judge in sentencing indeed commented that none of the factors in the Guideline on the Imposition of Community and Custodial Sentences militating in favour of suspension existed. As is apparent, he was wrong to do so since there was, as we have set out, very strong personal mitigation, one of the factors so identified in the Guideline.[19]In all the circumstances, on the particular facts of this case, we quash the sentences of immediate imprisonment on counts 1 and 2 and substitute them with a sentence of nine months' imprisonment on each count concurrent, suspended in each case for two years. If in the next two years the appellant commits any offence she will be brought back to court and it may be that the sentence will be brought into operation, subject always to the consideration that she has already spent some 10 weeks in custody. Taking into account that factor, no further requirements should be imposed on the suspension order that we have made.[20]For these reasons, and to this extent, the appeal will be allowed.[21]Finally, as already indicated, in accordance with Needham the Judge should have imposed an extension period pursuant to section 35A of the Road Traffic Offenders Act 1988 in relation to the mandatory two year disqualification from driving to reflect the fact that the appellant was to serve a sentence of imprisonment. We have of course now quashed that sentence of imprisonment, but the fact remains that the appellant has spent 10 weeks in custody. We therefore, and as Miss Garcia fairly accepts we must, extend the period for which she will be disqualified from two years to a total of two years and 10 weeks. She must, as before, pass an extended driving test.