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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Owais, R. v [2018] EWCA Crim 692 (14 March 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/692.html Cite as: [2018] EWCA Crim 692

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14 March 2018

1. MRS JUSTICE WHIPPLE:

Introduction

2. The appellant is now 39 years old. On 13th December 2017 in the Crown Court at Warwick the appellant pleaded guilty to a single offence of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988. He was sentenced to 2 years' imprisonment and disqualified from driving for 3 years and until an extended re-test had been passed.
3. He now appeals against that sentence with the leave of the single judge.

The Facts

4. On 10th May 2016 at 10.45 pm on the A426 near Rugby in Warwickshire the appellant was driving his car when he was involved in a head-on collision with a car being driven by the complainant, Mr Ketchell. Mr Ketchell was 60 years of age at the time of sentence. Mr Ketchell was travelling in the opposite direction on the single carriageway road. The traffic on the road was heavy because traffic, including the appellant's car, had been diverted from the M6 onto the A426. There was a slow but steady flow of traffic travelling at around 40-45 miles an hour. The appellant was unfamiliar with the road. His SatNav was telling him to do a U-turn. It was dark and there was no street lighting and the road conditions were dry. Both drivers were alone in their cars.
5. The appellant overtook two cars and then attempted to overtake a lorry. He said this was so that he could see a sign indicating where the diversion from the motorway was going to take him. A witness in the traffic behind the lorry saw the appellant's car travelling at speed, overtaking the witness's vehicle and another vehicle. The appellant did not pull in after overtaking the two cars but continued to overtake the lorry and that is when the collision occurred. Mr Ketchell had no chance of avoiding the collision. The appellant claimed that he did not see the headlights of Mr Ketchell's car coming towards him.
6. All of the airbags in Mr Ketchell's vehicle were deployed and Mr Ketchell was left dazed and trapped in his vehicle by both ankles. He was taken to hospital and remained in hospital for around 9 weeks. He had surgery on his ankles and he also suffered broken ribs and some lacerations.
7. In interview the appellant explained that he believed it had been safe to overtake and he believed he had a clear view of the road ahead.
8. A victim impact statement was put before the sentencing court which described the injuries suffered by Mr Ketchell. He was depressed and anxious while he was in hospital. He had been unable to return home when released from hospital and instead had gone to live with an aunt who had a bungalow. Since the accident he had moved to a bungalow because he could not manage the stairs with his injuries.
9. At the time of sentencing he still had to walk with a stick and he had a limp. He could no longer drive a manual car and had to give up dancing, his recreational interest. The judge described these injuries as "life changing".

Sentence

10. In passing sentence the judge remarked that the appellant overtook two cars and then without coming back into his lane made the fateful decision to carry on and overtake a 15 metre lorry which had been travelling between 45 and 55 miles per hour. The judge noted that the appellant had not intended to cause harm but that he had caused Mr Ketchell very serious injuries. She noted that the appellant was himself injured also. He sustained fractures to his lumber region, to his wrist and suffered internal bleeding and spent some days in intensive care.
11. By way of personal mitigation, the judge noted that the appellant was 38 years of age and had no previous convictions. He had an unblemished record of driving for 21 years. The judge had read the pre-sentence report and the character references which showed him to be a responsible family man who gave a lot to the community. She noted that the appellant had two young children and that a prison sentence was likely to jeopardise the business that the appellant had spent many years building up. The judge noted that she did not have guidelines as such, but she did have regard to the guideline for causing death by dangerous driving. It was agreed that this was a level 3 offence under that guideline. There would have been a starting point of 3 years' imprisonment with a range of up to 5 years' imprisonment.
12. In terms of culpability and the dangerousness of the driving she described this as a "really very dangerous manoeuvre" which fell high in the category range. She said that the appellant had been distracted by the diversion and by the SatNav and what it was telling the appellant.
13. Taking all of those matters into account the judge said that she would have passed a sentence of two-and-a-half years' imprisonment after a trial. She gave the appellant 20% credit for his late guilty plea. That reduced the sentence to one of 2 years' imprisonment, which would be an immediate prison sentence. She said that the message had to go out that if you drive a car dangerously and injure other people you must go to prison unless there are really good reasons not to and there were no goods reasons here. She imposed the driving disqualifications for 3 years.

The Appeal

14. The appeal is brought on the following grounds:

(i) The starting point of 2.5 years was too high;

(ii) The judge wrongly attributed aggravating factors to the sentence;

(iii) Insufficient consideration and weight was given to the appellant's positive good character;

(iv) The sentence should have been suspended.

15. We are grateful to Mr Qureshi for his focused submissions in support of these grounds. He has focused on grounds 1, 2 and 3, in particular, in his submissions before us.

Discussion

16. Mr Ketchell was grievously injured in this collision and will have to carry the consequences of his injuries for years to come. Nothing said or done in this court can change that. We acknowledge that the harm caused by this collision was very substantial. Further, we consider the appellant's culpability to be high for the reasons explained by the judge. To try to overtake on an unfamiliar road, at night, in the circumstances described, was undoubtedly dangerous.
17. In relation to the second ground Mr Qureshi submits that the judge was in error in suggesting that the appellant was distracted by fiddling with his SatNav. The fact that the appellant was being told by his SatNav to perform a U-turn was only ever part of the background facts and was not something that the prosecution alleged to have been causative in any way of this collision. We accept that the judge may have overstated the relevance of the SatNav in her sentencing remarks. We accept that there is no evidence that the SatNav did in fact cause or contribute to the collision as it occurred.
18. We come then to the central issue in this appeal, which is whether the judge was right to take 2.5 years as the sentence following trial and before credit for plea. This is to address grounds 1 and 3. (We note that the appellant's grounds suggest that 2.5 years was the judge's "starting point" . It was not, it was the notional sentence she identified following trial and took account of the appellant's personal mitigation.)
19. Like the judge, we start with the guideline for causing death by dangerous driving. We, like her, consider this offence to fall within level 3. It was "brief but obvious danger arising from a seriously dangerous manoeuvre" as the guideline indicates. We accept that there are no additional aggravating features present by reference to the list set out in the guideline. We think there is one additional mitigating feature present, namely the fact that the offender was seriously injured in the collision. Even accepting that the appellant's manoeuvre was very dangerous, we conclude that if this had been a case of death by dangerous driving the correct starting point, before considering personal mitigation and other factors, would have been 3 years or thereabouts. In recognition of the substantial personal mitigation the sentence after trial would have been in the region of two-and-a-half years. Because death did not result the sentence after trial in this case must be lower than that. We therefore agree that the judge's notional sentence of two-and-a-half years following a trial was too high.
20. The starting point in this case, we conclude, should have been around 2 years to reflect the serious harm and culpability, which features the judge was right to emphasise. The term would then need to be reduced to reflect the appellant's substantial personal mitigation. In addition to the fact that the appellant suffered injuries in the accident, the appellant has two school aged children and family responsibilities, and he has accepted responsibility for what occurred and has expressed his remorse from the outset. He also has a clean driving record over 21 years. While the guideline states that a good driving record is not a factor which automatically falls to be treated as a mitigating factor, any evidence that the offender has been an exemplary driver can be taken into account. In this case the appellant runs a vehicle recovery business which he started and developed himself, recovering vehicles from collisions and other scenes of crime. It is appropriate to give him some credit for the fact that driving is part of his livelihood and has been for many years, and yet this is the first blemish on his record. These features of personal mitigation would bring the sentence, after trial, down to around 20 months.
21. We are not invited to depart from the judge's assessment of 20% to reflect the guilty plea, which in any event we consider was appropriate. We arrive at a sentence of 16 months' imprisonment, after guilty plea. This is the sentence which we substitute for that imposed by the judge. The sentence originally imposed was manifestly excessive.
22. Because we have allowed this appeal and substituted a shorter sentence we must revisit the disqualification term. We are assisted by the checklist in R v Needham & Ors [2016] EWCA Crim 455 at paragraph 31. This offence carries an obligatory disqualification pursuant to s 34 of the Road Traffic Offenders Act 1988. The minimum term for causing serious injury by dangerous driving, as prosecuted in this case, is a term of 24 months, see s 34(4)(a)(iia) of that Act. Pursuant to section 35A of the same Act we impose an extension period which will be half of the term of custody imposed, namely 8 months. That will give a total period of disqualification from driving of 32 months. The appellant is required to take an extended driving test at the end of that period as a condition of recovering his licence.
23. In conclusion, we allow this appeal, we quash the sentence of 2 years' imprisonment imposed by the judge. We substitute a sentence of imprisonment of 16 months and do not disturb the victim surcharge order. We disqualify the appellant from driving for a total period of 32 months and we direct that he must take an extended driving test at the end of that period.