R v Jake Calow [2024] EWCA Crim 1863

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2024] EWCA Crim 1863Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Wednesday, 17 April 2024
Before
LORD JUSTICE WILLIAM DAVISMR JUSTICE MORRISHIS HONOUR JUDGE PETER JOHNSON(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
JAKE CALOW__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR B McELDUFF appeared for AppellantMISS S LINSLEY appeared for Crown_________J U D G M E N T
[1]This is an appeal against sentence with the leave of the single judge.[2]On 29 June 2023, having pleaded guilty before Basingstoke Magistrates' Court in respect of offences of aggravated vehicle taking where death was caused and causing death by driving a vehicle whilst uninsured, the appellant was committed for sentence pursuant to section 14 of the Sentencing Act 2020.[3]On 13 October 2023 in the Crown Court at Winchester the appellant pleaded guilty upon re-arraignment to counts 1 and 3 on the indictment. Count 2, charging death by careless driving whilst over the limit, was ordered to lie on the file.[4]On that date the appellant was sentenced as follows. On count 1, causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988, eight years' imprisonment. On count 3, causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988, 28 months' imprisonment. In respect of the offences which were committed for sentence he was sentenced for causing death by driving a vehicle whilst uninsured, contrary to section 3ZB of the 1988 Act to nine months' imprisonment and for aggravated vehicle taking where death was caused contrary to section 12A of the Theft Act 1968 to two years' imprisonment. His sentence on count 3 of the indictment and the sentences for which he had been committed for sentence are to be served concurrently to the sentence on count 1 of the indictment. The total sentence was therefore eight years' imprisonment. In addition the appellant was disqualified from driving for a total period of nine years, comprising five years' disqualification with an extension period of four years.[5]A co-defendant Oliver McGowan was sentenced at the same time for an offence of aggravated vehicle taking to 12 months' imprisonment suspended for a period of two years with requirements for unpaid work and an electronic curfew. The facts[6]At approximately 8.10 pm on 11 July 2020 John Gillott was driving a Volkswagen Caddy van along the B3051 when he was involved in a head-on collision with the appellant who was driving a Ford Transit van. Patrick Shortt, who was seated in the front passenger seat of Mr Gillott's vehicle, suffered catastrophic injuries and died at the scene. Mr Gillott himself sustained life-changing injuries. The appellant was uninsured and did not have the permission of the vehicle's owner to drive it.[7]The appellant, along with Oliver McGowan and Mr McGowan's father Darren McGowan, had been staying at the Bell and Dragon Public House in Kingsclere. They were due to undertake some roofing work the following day.[8]Between 4.12 pm and 5.48 pm they each drank four pints of beer. At 6.18 pm the appellant and Oliver McGowan purchased a case of Carlsberg lager from a nearby shop and returned to the public house with it.[9]At 7.43 pm the appellant and Oliver McGowan took Darren McGowan's van to collect a take-away from a nearby restaurant. Whilst that were gone Darren McGowan telephoned his son and told them to bring the van back. He had been unaware that the appellant was still in possession of van keys after earlier using them to retrieve a mobile telephone charger from the vehicle. Although Oliver McGowan had driven to the restaurant, the appellant drove it on the return journey.[10]As the appellant approached a left-hand bend, the Ford Transit van swerved to the nearside. The wheels clipped the verge and as the appellant drove the van around the corner, the vehicle went onto the wrong side of the road and collided head-on with Mr Gillott's vehicle. Patrick Shortt died at the scene. Mr Gillott was severely injured. He spent three weeks in intensive care and his injuries included three fractures to the cervical spine, multiple fractures to seven of his left side ribs, fractures to both bones of his right forearm and fractures to both left and right thigh bones. His treatment had to include dealing with a life threatening blood clot in the brain. At the time of sentence his treatment was ongoing and his mobility will be affected for the rest of his life.[11]The appellant admitted being the driver at the scene. He failed a roadside breath test and was arrested. At the scene the appellant was distressed and saying how sorry he was. A further blood test established that the appellant's blood alcohol level at the time of the collision was 120 milligrams, the legal limit being 80 milligrams. The appellant answered no comment to all questions in his police interview.[12]As far as antecedents are concerned, the appellant had five convictions for nine offences in the period between October 2018 and November 2019. He did not have any relevant previous convictions.[13]As far as material before the court was concerned, there were victim personal statements from Mr Gillott himself and from Mr Patrick Shortt's wife, daughter and two brothers. There were also character references proffered on behalf of the appellant. The sentencing remarks[14]In her sentencing remarks the judge stated that in respect of counts 1 and 3 the appellant had pleaded guilty on that day, having pleaded not guilty at the plea and trial preparation hearing “PTHP” on 2 August 2023. She noted that a guilty plea had been indicated on 15 August 2023. In relation to count 2 on the indictment, which was ordered to lie on the file, the judge indicated that that would attract a discount of 25 per cent. As regards the two offences for which the appellant had been committed for sentence he had pleaded guilty at the Magistrates' Court and would be accorded 33 per cent credit.[15]After setting out the facts the judge summarised the victim impact statements which had been read to the court. She then referred to the appellant's previous convictions. The judge had read the pre-sentence report on the appellant, noting that he had expressed considerable remorse and that the probation officer had said he was very emotional when he was interviewed. The judge had also read the references written on the appellant's behalf and in particular from his mother describing the effect that the accident had had upon him and a reference from his partner, the mother of the appellant's young son. However the judge observed that much of the effect that this had had upon the appellant was not just him feeling guilty for what he had done but was also because of the sentence that he knew he had to face. The judge went on to observe that no sentence could begin to compensate for the tragic loss of a life or the very serious injury that had been caused. Whatever sentence the court imposed would never change what had happened nor would ever put things right for the families of the victims.[16]She then referred to the relevant sentencing guidelines and decided that count 1, death by dangerous driving, was the lead offence. In taking into consideration totality and all relevant matters she said she would load all of that onto the sentence in respect of count 1. The sentence she imposed on that count would reflect all of the appellant's offending and concurrent sentences would be imposed for all the other offences.[17]She took the count 1 offence as falling in culpability Category B due to the alcohol impairment, although that was not so high a level as to take it to culpability Category A. She found that the appellant was also driving too fast for the road conditions but "again not much too fast" and accepted that this was for a relatively limited time. She identified a statutory aggravating factor as the very serious injury that was caused to Mr Gillott, whilst noting at the same time that there was a separate count for that offence. Nevertheless she repeated that she proposed to sentence on count 1 to take into account all matters. She did not accept that having Mr McGowan as a passenger in the van was an additional aggravating factor. However, the vehicle was a relatively large vehicle; that was an aggravating factor. She noted that some of his previous convictions were serious but none were directly relevant. She also added that the appellant was driving a vehicle taken without consent and without insurance.[18]The judge then identified the starting point for a single offence of causing death by dangerous driving without taking anything else into consideration as being six years with a range of up to nine years for that offence alone. Whilst she accepted the appellant's young age and immaturity might have contributed to the decisions which he made, in her view that did little to reduce culpability.[19]As regards credit for pleas in relation to counts 1 and 3 she could not give him any more than 20 per cent credit since the plea was entered after the PTPH. She added that the appellant knew full well that he should not have been driving that day and that he had drunk a significant amount not long before. He knew he was uninsured and knew that he did not have permission to drive the van. She added:
"The videos that I have referred to simply shows your attitude that day. You did not care about the very obvious risks you were taking. In my view you did not need an accident report to know that you were driving dangerously. Your guilty plea should have been entered at the very latest at the Pre-Trial and Preparation Hearing."
[20]In relation to count 3, under the relevant guidelines the offence fell within Category B1 with a starting point of three years. As regards the offence of aggravated vehicle taking when death was caused there were no sentencing guidelines but the maximum sentence is 14 years and as to causing death whilst driving uninsured the maximum for that offence is two years.[21]She continued that in setting the total sentence she was sentencing on count 1, in addition for a tragic death, for a very, very serious life-changing injury to Mr Gillott, itself an offence meriting a significant sentence under the sentencing guidelines. There were then also the other two offences for which he had been committed to the Crown Court. The learned

judge concluded:

"All of that taken together, in my view, takes the starting point for Count 1 over the top of the, dangerous driving bracket. I am going to take a starting point at a total of 10 years. Giving you 20% credit for your plea of guilty, because that is what is applicable to the two most serious offences, that brings the sentence on Count 1 down to 8 years."
[22]She then indicated her conclusion on the period of disqualification from driving. She went on to impose the concurrent sentences for the three remaining offences as we have indicated.[23]Finally, she observed that because the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 did not apply, the appellant would serve half of the eight years in custody. The grounds of appeal[24]The grounds of appeal are that the sentence imposed was manifestly excessive in all the circumstances on the following six numbered grounds, upon which Mr McElduff appearing before us today has expanded in oral submissions. 1. Treating count 1 as the lead offence did not justify a departure from the sentencing range. In departing from the sentencing range the judge was in error. 2. Having stepped outside the guideline range, little or no downward adjustment was made to reflect mitigation and the mitigating factors. 3. Without any evidential foundation the learned judge discounted remorse as a mitigating factor. 4. Insufficient credit was given for the appellant's guilty plea which ought to have been 33 per cent. 5. In the alternative, given how little time had between the PTPH and the indication of the change of plea, the pleas to counts 1 and 3 ought to have attracted a 25 per cent discount rather than 20 per cent. 6. The difference between 20 per cent and 25 per cent is far from tinkering. On the basis of a 10-year sentence it amounts to six months' imprisonment and given the length of the sentence in this case four months actual prison time in a young life.[25]In relation to ground 1, Mr McElduff submitted that had the judge imposed consecutive sentences then applying the relevant guidelines for those sentences on counts 1 and 3 the sentence before discount for plea would have been nine years. Taking a figure of 10 years before discount for plea was therefore in those circumstances excessive. Mr McElduff accepted that concurrent sentences in this case were appropriate and whilst a significant upward adjustment was appropriate from the starting point for count 1 of six years, it was not appropriate to increase the sentence beyond the sentencing range before mitigation.[26]In relation to grounds 4 to 6 and the discount for plea, Mr McElduff submitted further that the appellant had accepted right from the outset criminal responsibility for causing the death of Mr Shortt. The only delay was in relation to the label to be attached to the manner of driving. The prosecution only responded on the eve of the PTPH to the appellant's offer of a plea to count 2. They did not serve the Forensic Collision Investigation Report by the time of the PTPH; it was served one day after. That was a critical document as it is in any road traffic case. It included analysis and a section concerning testing completed importantly to confirm that the van must have been driven in excess of the speed limit rather than relying on witness estimates as to speed. Mr McElduff set out and relied upon the chronology of events leading up to and after the PTHP culminating in the entry of the plea in October 2023 in circumstances where the appellant had indicated that he would plead guilty within a short period after the service of the expert reports. For these reasons, and in particular the absence of the collision report by the time of the PTHP, the case properly fell within the exception at paragraph F1 of the guilty plea sentencing guideline. Only 13 of the 173 days between the PTHP and the fixed trial date had passed and no further work had been done by the prosecution, save to upload the expert report. That should have been done before the PTPH.[27]Finally, in oral submission Mr McElduff referred to the fact that the judge was in error when indicating that the appellant would be automatically released after serving half the sentence rather than two-thirds and suggests that that may have affected the term of imprisonment that the judge imposed.[28]Ms Linsley for the prosecution submits in a Respondent's Notice that, as regards ground 1, although count 3 was fortunately not another death arising from the same incident, the injuries and impact upon the victim in count 3 were very serious indeed. The judge was justified when assessing the interests of justice in further elevating the starting point for count 1 to outside the given category range to reflect the aggravation of count 3, as well as other aggravating factors.[29]As regards ground 2, she submits that the learned judge had properly identified the mitigating factors and it was a matter for the judge to weigh these against the terrible impact of the death on Mr Shortt's family. The fact that the appellant was not a man of good character reduces the mitigation provided by the fact that there were no relevant previous convictions.[30]As regards ground 3, she submits that the assessment of the genuineness of remorse was a matter for the sentencing judge. The judge had considered what was said in the pre-sentence report and in the video at the time. She was entitled to reach her own view as to the genuineness of the remorse. As part of the evidential foundation for the judge's view, Ms Linsley points to what the appellant was seen to be saying in the video at the scene where he had exclaimed, amongst other things, "My whole life is fucked".[31]As regards discount for plea, she submits that the collision report added very little to the extensive evidence which had already been served by the time of the PTPH. Discussion[32]This was a case of terrible and tragic consequences. We have all read the victim personal statements and whilst we do not here repeat their contents, they speak eloquently and movingly of the profound effect of the events of 11 July upon Mr Gillott and upon Mr Shortt's family. We have also read the references provided on behalf of the appellant.[33]We start by observing that the learned judge's approach to the structure of the sentence in this case was both correct and clearly explained. She properly took count 1 as the lead offence and then "loaded" the sentence for the three other offences onto the sentence for count 1. We address the grounds in turn. Ground 1[34]In relation to ground 1, Mr McElduff contends that the judge was not justified in taking a sentence beyond the top of the sentencing range which in this case as a category B offence was nine years. Serious injury to others involved in the same incident is expressly identified in the sentencing guidelines as an aggravating factor when sentencing for an offence of causing death by dangerous driving. Whilst that may in many cases be a reason to increase the sentence upwards from the relevant starting point and within the sentence range for the category in question, in our judgment there can be no objection in principle to a judge increasing from the starting point to a figure beyond the top of the range for the category in question – in appropriate cases where overall the aggravating factors so warrant. This is what the sentencing judge did in the present case and in our judgment she was entitled to do so. In the present case she took account of the "very, very serious life-changing injury to Mr Gillott". She then identified three further factors which aggravated the offence: the fact that the Ford Transit was a relatively large vehicle and that the appellant was driving without consent and driving without insurance when death was caused. In our view subject to the issues of mitigation, to which we turn shortly, in the present case the judge was entitled to conclude that these factors justified moving the sentence to a level some way above the top of the category range. Ground 2[35]The judge identified and clearly took into account the relevant mitigating features. She referred to the appellant's age and lack of maturity, albeit that this provided limited mitigation. She referred to his lack of relevant convictions (although that was tempered by the fact that he was not of good character). She also referred to the letter from the appellant's partner, which talked about his young son, and the reference from his mother. In any event in our judgment these factors were more than balanced out by the three further aggravating features to which we have just referred. Ground 3[36]As regards remorse, we recognise that there was evidence of real remorse on the part of the appellant. In particular we have read carefully what the appellant's mother has said about the impact of these events upon her son and the genuine remorse which she has witnessed. However, we do not accept that by her observation that the appellant's remorse was motivated in part by fear for his own position, that the learned judge discounted his remorse in its entirety. She took it into account but reduced its weight because of her view of the appellant's motivation. We consider that there was material upon which the learned judge could have based that view. In particular there was his immediate reaction at the scene of the accident as to the effect of the accident upon his own life, to which we have just referred. The judge found that his expression of remorse was not such as to warrant a significant discount and we do not consider that she erred in this respect.[37]In the light of our conclusions on grounds 1 to 3, we consider that overall, after taking account of the mitigating factors, the aggravating factors were such as to warrant a substantial increase above the six year starting point. Whilst an increase up to 10 years before discount for plea was certainly substantial, we do not consider that it was manifestly excessive. Grounds 4 to 6[38]As regards grounds 4 to 6 and the discount for plea, the relevant chronology of events was as follows. At the first hearing in the Magistrates' Court the appellant was able to enter guilty pleas to a number of charges and the issue noted by the defence in respect of counts 1 and 3 was whether his driving was careless or dangerous. It appears therefore that this was not a case where a defendant had not received the benefit of legal advice.[39]On 2 July 2023 the defence wrote to the prosecution stating that the appellant was prepared to plead guilty to two counts of causing death and serious injury by careless driving. This again suggests that the appellant understood the case against him but that characterisation of his driving as dangerous was not accepted. We note that at the PTPH on 2 August 2023 credit was not asked to be preserved pending service of the collision report. On the PTPH form the issue noted by the Court was "solely on dangerousness - accepts crossing lanes but after a momentary clip of the nearside kerb." Not guilty pleas were entered to counts 1 and 3. The family of the deceased and Mr Gillott, the victim in count 3 were present for this. Following the hearing the CPS requested that the police should begin warning the required witnesses. The collision report was served on the next day. On 14 August 2023 the prosecution was notified of the appellant's intention to change his plea to counts 1 and 3.[40]In our view, the expert evidence provided by the collision report was not central to the conclusion that the appellant had driven dangerously. The appellant had not needed an expert to tell him that he had drunk too much or that he had lost control of the van by driving too fast. He was capable of deciding that his driving fell far below the standard of an ordinary careful driver. By the time of the PTPH he had clearly had legal advice and he knew what the issue was. In our judgment, the sentencing judge's conclusion that 20 per cent was the appropriate discount because the guilty pleas should have been entered at the very latest at the PTPH was fully justified. This is not a case where the exception in paragraph F1 of the sentencing guidelines for guilty pleas applies. Rather, this was a case where the appellant delayed his guilty plea in order to assess the strength of the prosecution case and perhaps his prospects of an acquittal on count 1.[41]For these reasons, the grounds of appeal in this case are not made out. The sentence of eight years on count 1 with concurrent sentences for the other three offences were not manifestly excessive.[42]Finally, we see no merit in the suggestion that the judge's error about the date of release influenced her decision as to the appropriate length of the sentence.[43]There is one further matter which we mention. It has been pointed out to us that under the relevant statutory provisions the period of driving disqualification imposed by the judge should have been somewhat longer. However, in view of section 11(3) of the Criminal Appeal Act 1968, which provides that an appellant cannot be more severely dealt with on an appeal than he was dealt with by the court below, we make no change to the order for disqualification made by the judge.[44]For these reasons, the appellant's appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE46. Tel No: 020 7404 140047. Email: rcj@epiqglobal.co.uk