England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 14 September 2007

1. MRS JUSTICE COX: On 18th January 2007 in the Bradford Crown Court, this appellant, now aged 28, pleaded guilty to count 1 on the indictment charging him with dangerous driving. Subsequently on 6th March there was a hearing at which the judge determined that it was lawful for counts of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 which arose out of the same incident to be added to the indictment. Counsel then asked for a Goodyear indication [2006] 1 CrAppR (S) 6, [2005] EWCA Crim 888 which the judge gave on 7th March. Following that, the appellant pleaded guilty to the two further counts. He was sentenced to a term of three-and-a-half years' imprisonment for each of the section 20 offences and to 21 months' imprisonment for the dangerous driving. All the sentences were concurrent. He was also disqualified from driving for five years and until an extended test is passed. No separate penalty was imposed for an offence of failing to provide a specimen of breath to which he had pleaded guilty but he was given a concurrent 12 month disqualification. The total sentence imposed was therefore three-and-a-half years' imprisonment. He now appeals against that sentence by leave of the single judge.
2. The relevant facts of these offences are as follows. On 9th March 2006 the appellant drove his Renault motorcar into Bradford. He visited several public houses before ending up at a nightclub in the City Centre, by which time he had consumed about six pints of beer. In the nightclub he met two young women (the victims on counts 2 and 3) and another man who was with them. They all agreed to go on to another venue. The two women purchased some food which they ate by the appellant's car in the car park. As they did so, the appellant was sitting in the driver's seat revving the engine and driving back and forth. The women then got into the back of the car and the other man got into the front passenger seat. The appellant told them that he had not been drinking.
3. He then drove off suddenly and erratically so that the seat belts locked and the women were unable to put them on. They remained unsecured in the back of the car as the appellant drove, on his own admission, dangerously. He drove fast down a cobbled road contrary to a no entry sign and he negotiated bends at speed. The women were being thrown around in the back of the car and had to hold on to the seat rests in front. They screamed at him on a number of occasions to slow down but he did not do so. He drove at high speed over road humps causing the car to take off and land heavily. After driving over one speed hump in this manner the Renault left the road, the appellant lost control when it landed and the car then collided with railings and traffic light poles.
4. Police officers parked in a side street had seen his erratic driving and excessive speed. They had started to follow him just before the crash and were therefore quick to arrive at the scene.
5. The victim on count 2, Alysa Waugh, sustained severe injuries, particularly to her left arm which has been left permanently disabled. She spent a long time in hospital and underwent a series of skin grafts. She continues to receive physiotherapy and counselling. The victim on count 3, Charlotte Horan, sustained a fractured pelvis. Both of them had associated bruising and contusions.
6. At the police station following his arrest the appellant failed to provide a breath specimen for analysis. In interview, after some prevarication, he eventually admitted that he had been drinking and that he had driven at up to 60mph in a 30mph zone.
7. The appellant had no previous convictions. The only matter recorded against him was a caution in 2001 for being drunk and disorderly.
8. Before sentence was passed and during argument the judge's attention was drawn to two decisions of this court which he considered may be in conflict with each other as to the appropriate sentencing principle in cases of this kind where the car has not been used as a weapon deliberately to cause injury. These are R v Bain [2005] 2 Cr.App.R 319 and R v Bridle [2002] EWCA Crim. 908. The judge summarised the question that he had to decide as whether this appellant fell to be sentenced for an exceptionally bad case of dangerous driving with serious consequences but subject to the two year maximum imposed by the Road Traffic Act 1988, or whether, given that he had pleaded guilty to section 20 counts lawfully joined to the indictment, he fell to be sentenced for those offences and subject to the statutory maximum of five years' imprisonment. The judge decided that the latter was the correct course saying:

"... if one has counts of assault or whatever upon an indictment which contains dangerous driving, one should not be trammelled by the maximum sentence for dangerous driving in sentencing for the offences of assault. If that is the case then it seems to me pointless to have those counts on the indictment at all."

He stated that it was important when sentencing to consider the totality of the offending and that there should not be consecutive sentences for the dangerous driving and the section 20 offences which had both arisen from the same incident. The judge then identified a number of aggravating features including the appellant's excessive consumption of alcohol, the greatly excessive speed of his driving, the fact that he had ignored pleas to stop from the victims and the very serious injuries which they suffered. The mitigating features he identified were the appellant's previous good character, the glowing references, the good driving record hitherto, his pleas of guilty, his genuine remorse for what had happened and the delay before he was finally dealt with which was not due to any fault of his. The judge considered that the appropriate sentence, taking all of those matters into account, was one of three-and-a-half years' imprisonment on counts 2 and 3 concurrent and 21 months' imprisonment concurrent for the dangerous driving.

9. On the appellant's behalf, Mr Wood raises two grounds of appeal against this sentence. First, he submits that the judge erred in principle in applying the principle in the case of Bain and in not following the decision in Bridle. In Bain decided by a court presided over by Clarke LJ, the appellant fell to be sentenced for a number of driving offences including dangerous driving and for inflicting grievous bodily harm contrary to section 20, all of which arose out of the same incident in the course of which the appellant had seriously injured one of the passengers in his car whilst driving dangerously. The appellant pleaded guilty to all charges. He received in fact consecutive sentences of imprisonment for the section 20 offence and the dangerous driving which the court decided was wrong in principle since the offences all arose out of the same incident. However, the first point argued on the appellant's behalf in that case was that it was inappropriate to charge the section 20 offence together with the offence of dangerous driving and that in the circumstances, where Parliament has imposed a maximum penalty of two years for dangerous driving, it must be deemed to have intended that there would be no separate charge for what was essentially the same underlying illegality so as to enable the court to impose a higher sentence. Responding to this submission the court held at paragraph 8 as follows:

"We wholly reject that. In our view it was perfectly appropriate here, given the gravity of the injuries suffered by the female passenger, for the section 20 charge to have been preferred by the prosecution. It may be that in the circumstances the dangerous driving charge thereby became somewhat redundant, but nevertheless there is nothing wrong in principle, nor is it in any sense an abuse of the procedure for the section 20 count to have been placed on the indictment."

At paragraph 11 the court stated:

"This was ... a highly reckless act in which it was eminently foreseeable that serious injury could be caused to one of the occupants in the car, as indeed it was."

He added that when imposing concurrent sentences for the offences as was appropriate, the judge should have in mind the principle of totality.

10. We agree with the point of principle set out in paragraph 8, after a hearing at which we note the Crown was represented. There is of course no challenge before us to the judge's ruling in this case on the lawfulness of joining counts 2 and 3 to the indictment to which this appellant then entered pleas of guilty. In Bridle, presided over by the former Vice President of this Court, the first point raised in Bain was not taken and the issue was considered rather as a matter of sentencing practice. In that case the appellant had struck and injured a youth whilst driving his car dangerously. He was sentenced to concurrent sentences for the dangerous driving and the section 20 offences, receiving four-and-a-half years' detention for the section 20 offence and 21 months concurrent for dangerous driving. It appears from paragraph 5 of the judgment that counsel submitted that it was wrong to sentence the appellant on the basis of a five year maximum for a section 20 offence of inflicting grievous bodily harm. This was because the Crown had sought to go behind the intention of Parliament. There is no offence of causing grievous bodily harm by dangerous driving. Parliament had presumably not thought fit to introduce such an offence because it already existed in the form of section 35 of the Offences Against the Person Act 1861 -- an offence which charges causing bodily harm by wanton or furious driving and which carries a two year maximum sentence.
11. The court observed that they could see some force in those submissions. However, save for that observation the court did not then go on to consider that position any further but went on to consider whether the term of four-and-a-half years' detention was in any event manifestly excessive. They concluded that on the particular facts of that case a total sentence in excess of 21 months was not justified. At paragraph 7 they held that in all the circumstances the appellant should have been sentenced on the basis that this was a very bad case of dangerous driving. The four-and-a-half year sentence was therefore reduced to one of 21 months' imprisonment concurrent with the 21 month term for the dangerous driving.
12. It is correct that Bridle was not drawn to the attention of this court when it was considering the case of Bain, but that does not seem to us to be material because it seems to be a case which was decided on its own particular facts. Further, we would point out that the offence under section 35 of the 1861 Act refers to causing bodily harm and not expressly to causing grievous bodily harm. In cases such as the present where extremely serious injuries have been recklessly caused by dangerous driving, there is in our view nothing to prevent the Crown from preferring charges under section 20 as this court decided in Bain. That is what happened in the present case and we repeat that there is no challenge before us to the judge's ruling as to the lawfulness of that course or as to the validity of the pleas of guilty then entered by this appellant. Mr Wood was unable to point to any principle which would require us in these circumstances to ignore the statutory maximum for the section 20 offences which is otherwise to be taken into account in the normal way by the sentencing judge.
13. That, it seems to us, is the starting point for considering the appeal against sentence in this case. On our analysis there is no conflict between Bridle and Bain. To the extent that a tension may be considered to exist as a result of the court's observations as to the force of counsel's submissions at paragraph 5, we consider that in the future judges presented with this issue should apply the principle and the approach to sentencing established by this court in Bain which in our judgment represents the correct position in law. It follows that the sentencing judge in this case did not err in principle in his approach and the first ground of appeal therefore fails.
14. Mr Wood's second ground of appeal is that the custodial sentence of three-and-a-half years' imprisonment was in any event manifestly excessive having regard to all the circumstances of this case. Notwithstanding the aggravating features which he acknowledges were serious, this sentence on a plea of guilty, he submits, indicates that the judge took too high a starting point. Further, he submits that the judge failed adequately to reflect the strong mitigating factors and in particular the applicant's good character and previous good driving record, his genuine remorse and low risk of reoffending as assessed by the probation officer in the pre-sentence report.
15. There is, in our judgment, merit in this ground of appeal. In a case where Parliament has decided that the maximum sentence for the section 20 offence should be one of five years, the sentence of three-and-a-half years on a plea of guilty in this case was excessive. However, we consider the degree of recklessness in this case to be particularly high and as involving a very high risk to human life. Having drunk a considerable quantity of alcohol the appellant then drove dangerously and at high speeds for a sustained period ignoring the screams of the two victims for him to stop. They both suffered severe injuries as a result. In all the circumstances we consider that the appropriate sentence was one of two-and-a-half years concurrent on each count and in those circumstances we quash the terms of three-and-a-half years' imprisonment imposed and substitute terms of two-and-a-half years concurrent on each of those counts. They will remain concurrent sentences with the 21 months' imprisonment imposed for the offence of dangerous driving. To that extent and for the reasons we have given we allow this appeal.