England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17th June 2008

1. Judge Loraine-Smith: On 30th November 2007, in the Crown Court at Kingston upon Thames before His Honour Judge Binning, this appellant was convicted after a five day trial on two counts of dangerous driving contrary to section 2 of the Road Traffic Act 1988 and one count of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. He was acquitted on a count of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. He was remanded in custody and on 4th January 2008 he was sentenced by the trial judge to nine months' imprisonment on the first count of dangerous driving, 21 months' concurrent on the second count, and five years' imprisonment concurrent to those two sentences on the count of causing grievous bodily harm with intent. He was disqualified from driving for six years and until an extended test was passed. The time he had spent on remand was ordered to count towards his sentence.
2. He appeals against the length of his term of imprisonment by leave of the single judge.
3. The facts of the case were as follows. At about 2 o'clock in the morning on 17th February 2007 the complainant, Ben Hall, and two friends, were dropped off at a McDonald's drive-thru restaurant in Wandsworth. They each had had a considerable amount to drink. The complainant thought that he had been over charged in the sum of £1 and persisted in questioning the staff about it. In doing so, he caused some obstruction to the drive-thru queue, in which the appellant was next to be served, and in pushing past he may have knocked the appellant's side wing mirror. There was a heated exchange of words in which the complainant at one stage warned the appellant not to mess with them because his friend had a gun. The complainant was given his change and walked over to join his friends.
4. The appellant, feeling belittled and humiliated by the words and actions of the group, reversed his car at them. They moved out of the way and he reversed at them two more times but missed them and hit a bollard. The appellant then drove off. The complainant and his friends then walked down York Road towards Battersea. The appellant had followed them in his car. He drove at them, mounted the pavement and hit the complainant who somersaulted forward against a wall. The appellant then drove off. The complainant suffered a laceration to his left ear that required surgery, bruising to his left calf and a chipped bone in his ankle. None of these injuries appear to have had a long lasting effect.
5. The appellant was identified from close circuit television footage at the McDonald's restaurant. He was arrested at home. In his first interview he made no comment but in the second interview he accepted that he had been involved in the confrontation by the Mcdonald's. He said he had felt intimidated and had only driven towards the group to hear what they were saying. He said that he had accidentally reversed into the bollards as a reaction to one of the group trying to punch him. He claimed he had driven straight home and gone to bed.
6. The appellant is aged 26. He has no previous convictions at all and was at the time a trainee accountant who was within a year of full qualification. He expressed remorse about his behaviour to the author of the pre-sentence report, but persisted in denying his presence at the second and more serious incident.
7. Mr Mohabir, who has been of great assistance to this court and to whom we are grateful, relies upon his character in mitigation and points to the fact that the sentencing judge accepted that there was an element of provocation in the behaviour of the complainant and his friends. The obvious aggravating feature in this case is that the appellant used his vehicle as a weapon. Instead of driving home, he waited and then drove at the complainant in circumstances in which the judge found it was lucky that nobody was killed or more seriously injured.
8. We have had our attention drawn to the case of Wildman [1998] 1 Cr App R(S), at 237 BAILII: [1997] EWCA Crim 1725. In that case the appellant was convicted of dangerous driving and inflicting grievous bodily harm. He had driven at a man of whom he was jealous and had caused very serious injuries which had resulted in a change in that man's personality. The appellant was acquitted of causing grievous bodily harm with intent and sentenced to four years' imprisonment on the lesser offence of inflicting grievous bodily harm. The Court of Appeal described that sentence as being the correct one.
9. Mr Mohabir has also drawn our attention to two well-known cases where very bad driving has resulted in death, R v Cooksley [2003] 2 Cr App R 18, [2003] EWCA Crim 996 and R v Richardson [2007] 2 All ER 601. He submits that a five year sentence would be comparable in its sentencing bracket to a conviction for causing death by dangerous driving with two serious aggravating features, such as drugs or alcohol, or evidence that the driver had been racing. But there is this important distinction to be drawn; however bad the driving in those cases, there is no suggestion that those appellants drove at someone intending to cause him really serious harm, which is the position in this case.
10. We consider that the two very appreciable points in mitigation, the good character and the provocation, must have been taken fully into account in arriving at the five year sentence. This was the correct sentence in this case and accordingly this appeal is dismissed.