Abstract
Dangerous driving
Repeat offender: Maximum term considerations
When a police officer on mobile patrol sought to stop R.'s car in November 2020 because his numberplate was obscured, R. drove off at speed prompting a chase lasting 15 min through urban streets, at up to 60 mph, failing to give way at a junction and narrowly avoiding collision with on-coming vehicles. When finally cornered in a service yard R. twice reversed into the police car in a bid to escape before running away on foot. When found in a nearby garden he was in possession of a small quantity of cannabis and tested positive for cannabis in a roadside test. He appeared to the officer to be under the influence of drugs. He refused to provide a blood specimen at the police station.
Aged in his mid-30s R.'s prior convictions included an offence of dangerous driving (also involving a high-speed chase trying to evade the police) for which he had incurred a suspended sentence order in April 2014 with a ban for three years and an order to take an extended retest. He had remained disqualified because he had not taken the extended test. He had been convicted of driving whilst disqualified (DWD) in March 2020. Following his guilty pleas in respect of the November episode to dangerous driving, DWD, possession of cannabis, failing to provide a specimen and no insurance R. was sentenced to 18 months’ imprisonment for the dangerous driving, with shorter concurrent sentences for the other offences, being further disqualified from driving for 33 months. His car (which he had bought five years previously) was made subject to a deprivation order. The judge described the crime as ‘about as serious a piece of dangerous driving as I can imagine’ and indicated that he would have imposed the maximum sentence of two years after a contested trial.
On appeal against sentence it was submitted on R.'s behalf that two years was manifestly excessive, since the maximum permitted term is justified namely only in exceptional circumstances. The Court of Appeal disagreed, reiterating that in instances where a sentencer has ‘limited headroom’ in light of the relatively low maximum sentence the proper approach is ‘to identify a broader band of conduct which will represent the most serious offending within the ambit of the offence’. That principle had been adopted in respect of the offence of causing serious injury by dangerous driving (maximum sentence: five years) and must apply to the offence of dangerous driving too. R.'s driving had fallen well within the band of the most serious kind of dangerous driving. Given too the other aggravating factors, the maximum sentence had been justified before discount for plea. As regards the argument that the deprivation order had to be considered a punitive order and thus part of the overall sentence, thus making the sentence excessive, the Court noted that R. had bought the car when he was not entitled to drive and had used it in that knowledge. The judge would have been justified in imposing a consecutive term for DWD. The argument was without merit. Appeal dismissed.
R v RUTHERFORD, [2021] 2 Cr App R(S) 41.
Insufficient attention to criminal history
Aged in his mid-30s S. had been made subject to a community order in December 2018 for assault, possession of cocaine and failing to provide a specimen for drug testing. In late July 2019 he drove through a red light at twice the applicable speed limit, having maintained a speed of 60 mph for a sustained period beforehand, while over the alcohol limit (with a reading of 53 ml), colliding with another vehicle and killing the driver, a young woman aged 20. His passenger (his partner) injured serious injuries. Released without charge pending further investigation, S. received postal notification in mid-October 2020 that he was required to attend court in mid-December in respect of causing death by dangerous driving (DDD). In early November 2020 he took his partner's car without her consent and collided with another vehicle, causing damage but fortunately no physical injury to the other driver aged 84 who had to be pulled from the wreckage. He had drifted across the road on a bend and subsequently claimed that he had gone for a drive as he had experienced difficulty sleeping and had dozed off momentarily. Though the ensuing indictment alleged that he had committed aggra-vated vehicle-taking (AVT) because he had driven dangerously, his basis of plea was that he had not driven dangerously but acknowledged aggravation through the damage caused. That basis of plea was not contested by the prosecution.
When the two episodes came to be dealt with together at Crown Court, S. having pleaded guilty to the DDD allegation, the judge properly identified that the earlier offence fell within Level 1 of the DDD guideline (2008), the category covering ‘the most serious offences encompassing driving that involved a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others’. Level 1 offences indicate a starting point of eight years with a range between seven and 14 years’ imprisonment. The judge increased that starting point to 10 years to reflect multiple aggravating features, and then gave full credit for plea of guilty, reducing the term to 80 months, with nine months’ consecutive for the AVT offence.
On reference by the Attorney General on grounds of undue lenience the Court of Appeal determined:
The judge's decision to deal with the second episode on the basis that it was a damage-only aggravated vehicle taking was questionable. S.'s plea had been entered to an offence that had explicitly included dangerous driving and his plea had not been vacated. It had been a very serious incident ‘in which the 84-year-old victim might quite easily have died or been very seriously injured’ and the fact that the physical consequences for him were as limited as they were ‘certainly had nothing to with any careful or creditable conduct’ by S. He had been facing grave proceedings at the time. His denial of dangerous driving ‘was not persuasive’ and the nine-month term had been unduly lenient. As regards the prosecution of the first episode, ‘cases of this kind need to be progressed as a priority because they involve not only the need to bring justice for the benefit of the persons tragically affected by what has happened, but also public safety’. On conviction of the driver the court ‘has power to make orders which will protect other people from other incidents of bad driving in the future’ and speedier process in this instance might have served to prevent the second episode. Though the judge had a PNC printout of S.'s criminal history he was not supplied with any information about the facts which had given rise to those convictions and the Appeal Court had obtained more details. It was apparent that his first conviction, in 2007, had been incurred for driving with excess alcohol. He had been already facing proceedings for an episode of dangerous driving, being drunk in charge of a motor vehicle with excess alcohol, plus cocaine and cannabis, and using a vehicle while uninsured. He had lost control when intoxicated and speeding at over 100 mph, hitting another vehicle head-on, causing serious injury to an occupant of that car which required intensive care. He had incurred 16 months’ imprisonment. More recently (2016) he had been fined for refusing a roadside breath test when police officers were investigating an incident in which a car, insured and registered to him, had crashed into some bollards. They had found S. nearby but he had claimed that he had not been driving the car at the critical time and it could not be proved otherwise. Though S. had been subject to a recently imposed community order at the time of the first current episode, ‘nobody pointed that out to the judge and he did not refer to it’. ‘Breach of a community order by the commission of a further serious offence is a significant issue when sentence is determined.’ It instanced another occasion when S. had committed a significant criminal offence when in drink and had refused to provide a sample when required to do so by the police. His record was ‘appalling’. ‘Greater focus’ on S.'s criminal history ‘would have shown that the behaviour which resulted in the death of [the victim in the first episode] was part of a broader pattern, which would have required a significant reflection in the final sentence’. Though S. had some personal mitigation (he was father of a young son; it was understood that he had been diagnosed with post-traumatic stress disorder, although no supporting medical evidence had been produced; he was considered to have demonstrated genuine remorse for the death of his initial victim), the judge should have increased the eight-year starting point for DDD to a greater degree than he did. A proper sentence before plea discount would have been twelve years, discounted to eight years, and this was substituted, so that S.'s sentence now totalled 105 months.
R v SHAW (ATTORNEY GENERAL's Reference), [2022] 1 Cr App R(S) 5.