Neutral Citation no. [2003] NICA 49	Ref:     	CARF4045	
			
Judgment: approved by the Court for handing down	Delivered:	25/11/2003	
(subject to editorial corrections)			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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REFERENCE BY HER MAJESTY’S ATTORNEY GENERAL FOR NORTHERN IRELAND (NO 4 OF 2003) (DAVID ROBERT NELSON)

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Before: Carswell LCJ, Nicholson LJ and Kerr J

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CARSWELL LCJ

   [1]  The reference in this case formed one of a group of five references brought by the Attorney General relating to sentences imposed in cases of road traffic offences.  We heard argument in the references together on 19 and 20 June 2003 and gave leave to the Attorney General in each.  We gave judgment in the other four references on 11 July, but adjourned the present reference in order to obtain a pre-sentence report, giving the offender’s advisers the opportunity to obtain a medical report.  We received a pre-sentence report on 19 September, but the medical report did not come to hand until 24 October.  Counsel for the offender and the Attorney General then informed the court that they did not wish to present further submissions.

   [2]  The offender, now aged 20 years, was convicted on 19 March 2003 after a trial at Belfast Crown Court on one count of dangerous driving causing the death of Stephen Thomas Sheridan, contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995.  The trial judge His Honour Judge Markey QC sentenced him on the same date to a conditional discharge for two years and disqualified him from driving for two years.    

   [3]  The material facts relating to the accident were set out in paragraph 4 of the reference:

“4.	The facts are as follows:

(a)	At approximately 1.50 am on 4 August 2001 the Defendant was driving his mother’s Ford Ka2 car along the Old Holywood Road, Belfast from Holywood towards Dundonald.  He had passed his test the previous April and held a restricted licence.

(b)	The Old Holywood Road is a single lane carriageway in each direction.  As the Defendant approached a downhill left hand bend travelling in the direction of Dundonald he lost control of the vehicle and it appears that he applied right hand steering followed very quickly by severe brake application which caused the car to travel from the Dundonald bound lane across the Holywood bound lane and onto the footpath and finally to the entrance to 126 Old Holywood Road.  The car struck the wall surrounding the garden in front of this property and overturned onto its roof before coming to rest on the footpath.  The speed of the car at impact with the wall was estimated to be significantly in excess of 30 mph and probably in excess of 40 mph.  It was estimated that the speed of the car at start of severe brake application was in excess of 46 mph.  The Old Holywood Road at this point is governed by a speed limit of 30 mph.  The cause of the accident was, therefore, the speed of the vehicle at the material time coupled with the inexperience of the driver.

(c)	Stephen Thomas Sheridan was the front seat passenger in the vehicle.  Neither the driver nor the front seat passenger appear to have been wearing a seat-belt.  He was noted to be unconscious at the scene an was transferred to hospital where he died in theatre at approximately 6.45 am on 4 August 2001.  The offender and the deceased appeared to be close friends.”

   [4]  The offender sustained serious injuries in the accident, which have left him with significant physical handicaps.  He had a dislocation of the elbow and bilateral fractures of the superior and inferior pubic rami.  His abdominal urethra was ruptured, requiring a laparotomy and the repair of his bladder.  A suprapubic catheter was installed, but it became recurrently blocked and in January 2002 he had surgery to create a stoma for self-catheterising.  This did not prove satisfactory, and in October 2002 a ureterostomy was formed, so that urine is now collected into a bag attached to his abdominal wall.  He suffers from recurring urinary infections and spasms in his bladder.  He had three further hospital admissions, in February, June and August 2003.  Further surgery was carried out in June and it appears likely that at least one more operation will be required.  There is some evidence of kidney damage and the onset of a degree of renal failure.  The offender developed diabetes as a consequence of his injuries and is on daily medication.

   [5]  The pre-sentence report states that the whole direction of the offender’s life has changed since the accident.  He suffers from leg and back pain and regular bladder spasms, as well as having to use the colostomy bag.  He had been pursuing a joinery apprenticeship before the accident, but he has not been employed since then.  He feels considerable self-consciousness about social contact.  The probation officer reported that Nelson feels a real sense of guilt and culpability for what happened, and expressed the view that he did not appear to present any general risk to the public and was unlikely to reoffend and that probation supervision would have little role in addressing offending behaviour.

   [6]  A report from Dr Ian T Bownes, a consultant forensic psychiatrist, dated 15 October 2003, was produced to the court since the hearing.  Dr Bownes recounts in detail the physical effects on the offender of the injuries sustained by him and his findings on psychiatric examination.  At pages 8 to 9 of his report Dr Bownes expressed the following opinion:

“The medical records supplied by his General Practitioner indicated that Mr Nelson had suffered physical injuries in the index incident of a nature that had resulted in permanent disfigurement and disability of a nature that most young men of this age could reasonably be expected to find particularly embarrassing and difficult to come to terms with, and that would inevitably result in an increased vulnerability to ridicule and stigmatisation in the prison setting.  Review of the medical records provided indicated that Mr Nelson’s current medical complaints and disabilities are inherently of a nature that will inevitably continue to have significant detrimental effects on Mr Nelson’s physical well-being and functioning despite his compliance with the treatments recommended.  Although medical and nursing support equivalent to that previously provided by his General Practitioner should be available to Mr Nelson in the event of his committal to prison.  Mr Nelson is likely to continue to experience the onset of acute medical problems requiring medical attention and hospital attendances for specialist treatment that would disrupt his relationships with other prisoners and his ability to engage productively in the prison regime and result in an increased sense of isolation and vulnerability in the prison setting.

In my opinion Mr Nelson’s medical complaints and disabilities are of a particular nature that is likely to significantly impair his capacity to adapt and adjust to the prison routine and environment and I feel that there is a significant risk of deterioration in Mr Nelson’s mental well-being in the event of an immediately custodial sentence.  Although mental health support equivalent to that available in a general practise setting should be available to Mr Nelson in the prison environment, symptoms of depression and anxiety ensuing from a psychological reaction to ongoing adverse life circumstances can be particularly debilitating and difficult to treat effectively, and if established at clinically significant levels, could reasonably be expected to have detrimental effects on Mr Nelson’s capacity to cope with the ongoing demands and stressors inherent in managing and coming to terms with his physical disabilities.”

   [7]  It was stated in the reference that there do not appear to have been any aggravating factors.  The mitigating factors are set out in paragraph 6 of the reference:

“6.	The mitigating factors are as follows:

(a)	The offender was of good character and his driving record, though short, was clean.

(b)	The offender suffered serious and lasting injury as a result of the accident.

(c)	The victim was a friend of the offender.

(d)	The age of the offender.”

   [8]  The judge did not require a pre-sentencing report on the offender.  He did not state his reason, as required by Article 9(4) of the Criminal Justice (Northern Ireland) Order 1996, but it is apparent from his remarks that he considered that he had sufficient information to pass sentence.  He stated that he took the view that it was a case of a bad misjudgment made through inexperience.  He went to say:

“You yourself, it is clear from this medical report, have suffered grievously and will continue to suffer in your own health.  I won’t go into the detail now, but it is quite clear that no punishment a court could award could compare with the situation which unfortunately at a very young age you find yourself in from a medical point of view.

I take all those matters into account in these circumstances, which I think are entirely exceptional.  Normally cases of dangerous driving causing death carry with them almost inevitably a substantial custodial sentence.  I am not going to impose such a sentence in your case.  What I will do is to put you on a conditional discharge for two years.  That means that if (as I expect) you will be leading a law-abiding life during that time you will hear no more of this matter so far as punishment is concerned.  In addition I would disqualify you from driving for two years.”

   [9]  Mr Morgan QC on behalf of the Attorney General submitted that on any view of the case a conditional discharge was an inappropriate disposition, bearing in mind that under Article 4(1) of the Criminal Justice (Northern Ireland) Order 1996 the court may only give a conditional discharge where it is of opinion that, having regard to the nature of the offence and the character of the offender, it is inexpedient to inflict punishment.  These conditions did not apply in the case of an offence of such severity, which required to be marked in a more positive manner.  Mr Grant QC for the offender urged upon us the proposition that since the circumstances of the offender were exceptional, the judge did not err on the side of undue leniency in taking an exceptional course.  He pointed out that the Court of Appeal in R v Cooksey [2003] 3 All ER 40, on which we relied considerably in the four other associated references, accepted at paragraph 20 of its judgment that the offender’s injuries could be a relevant factor in reducing the sentence otherwise appropriate.  

   [10]  We entirely agree with the judge that the offender’s driving was a bad piece of misjudgment, leading to the loss of control and a severe impact on a stretch of road which does not appear to present any unusual difficulties to a driver.  We would have regarded a sentence of immediate custody as inevitable in the ordinary way and consider that it would have merited a term of the order of eighteen months.  

   [11]  We do think, however, that there was some justification for the judge’s conclusion that he should not send this offender to prison.  We had occasion in R v Sloan (2000, unreported) to express our views on the effect of an offender’s injuries on the sentence to be imposed.  We took account of the discussion of the topic in R v Bernard [1997[ 1 Cr App R (S) 135 and went on to state:

“It is important in the public interest that sanctions should be imposed on those who commit serious offences which are sufficient to mark society’s unwillingness to tolerate their behaviour and act as a deterrent to those who might be tempted to commit similar offences.  We consider, however, that it would be wrong for a court to condemn an offender to certain physical or mental deterioration on a significant scale which would be caused by his detention in prison, where it is reasonably avoidable by taking another course.  It is not every suggestion that prison may be hard on a defendant which would entitle the court to take such a course.  Moreover, some crimes are such that imprisonment may be required for proper retribution, whatever the effect on the offender.  We take the view that the present case falls within the very small class of exceptional cases where (a) imprisonment would involve not merely loss of liberty but significant and permanent ill effects on the offender’s physical or mental health and (b) it is possible, while paying due regard to the public interest in imposing sufficient punishment for a serious crime, to resort to an alternative method of disposition”.

   [12]  Our considered view in the present case is that it can be said to fall within the class of those in which a court could justifiably decline to sentence the offender to an immediate custodial sentence.  The expedient adopted by the judge, of granting a conditional discharge failed, however, to mark the seriousness of the offence and on that ground we must classify it as an unduly lenient sentence.  Taking into account the physical and mental effects on the offender, and in particular the effect which imprisonment would in Dr Bownes’ opinion have on his mental health, and having regard to the factor of double jeopardy and the fact that the offender has been at liberty now for almost eight months, we have concluded that a suspended sentence would be appropriate.  We shall therefore quash the sentence imposed and substitute a sentence of eighteen months’ imprisonment, suspended for two years from the date of the order made on this reference.  The disqualification from driving will stand.