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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 >> Foster, R v [2009] EWCA Crim 1184 (20 May 2009)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/1184.html
Cite as: [2009] EWCA Crim 1184, [2010] 1 Cr App Rep (S) 36, [2010] 1 Cr App R (S) 36
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE ANDREW SMITH
MRS JUSTICE SLADE DBE
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| R E G I N A | ||
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| KENNETH MARTIN FOSTER |
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- MR JUSTICE ANDREW SMITH: This is an appeal against a sentence of 18 months' custody passed on 17th February 2009 for an offence of causing death by dangerous driving of which the appellant was convicted on 23rd December 2008. He was also disqualified from driving but there is no appeal about that.
- Mark Gibbs died as a result of an accident on the Epping New Road in Essex on 16th April 2007 at about 5.00pm. He was driving his motor bike when a Jaguar driven by the appellant crossed to his side of the road and collided head on into him. Mark Gibbs was in no way at fault in his driving. He was airlifted to hospital but died within a few hours. We have read a statement made by Mark Gibbs' partner, the mother of his younger child, giving some picture in touching and dignified terms of the devastating effects of his death upon his family and those close to him. He was clearly an admirable man.
- The appellant is aged 64. He is a retired chartered accountant. He had a distinguished career. He has no previous convictions in relation to driving or anything else. He undoubtedly feels deep and genuine remorse for the consequences of the accident that he caused.
- Since 2005, the appellant had been caring for his late wife, who suffered from motor neurone disease. By April 2007 Mrs Foster had deteriorated to the point that she had lost her power of speech. On 16th April 2007, the appellant had driven his wife to hospital, where she had been told that her treatment should not be continued. She was not going to survive and there was some discussion about her wishes about resuscitation. In fact, Mrs Foster died some months after the accident.
- The accident occurred while the appellant was driving his wife home from the hospital. It was not the prosecution's case that the appellant was at fault because he was not in a state to drive at all in view of what he and his wife had been told.
- A central issue at trial was whether the appellant had come to cross to the wrong side of the road because he had blacked out. The jury's verdict shows that they rejected that explanation. However, the judge, having presided over the trial, concluded that the appellant had generally convinced himself that that is what had occurred. We deal with the appeal on the basis that that he was genuinely so convinced. We also deal with it on the basis of the trial judge's conclusion that the collision in fact resulted from the appellant being inattentive to his driving as a result of some distraction. It is impossible to say what distracted him. Whatever the cause, it was, as the judge put it, for "a matter of seconds at the most".
- The verdict of the jury, which we must and do respect, means that in those moments the appellant's driving fell far below the standard of a reasonable driver and was dangerous. The consequences were terrible. However, it is difficult to imagine a case in which the dangerous nature of the driving was less culpable than here.
- The judge considered the definitive guideline of the Sentencing Guidelines Council about offences of causing death by dangerous driving. The guideline identifies three levels of offending and this case undoubtedly falls well short of the highest and middle level. The judge put it in the lowest of the three categories, which is described as driving that created a significant risk of danger. The guideline explains that such an offence is likely to be characterised by one or more of various factors, one of which is "driving whilst avoidably distracted" (emphasis added). It suggests a starting point for the punishment for such offending of three years' custody with a sentencing range of two to five years.
- There are identified in the guideline a number of features that might aggravate an offence. None is present here. There is a note in the guideline that sentences should take account of relevant matters of personal mitigation, including a good driving record and genuine remorse, such as are manifested in this case. It also mentions specifically giving assistance at the scene. The appellant did not assist Mr Gibbs at the scene but we do not hold that against him. Others were trying to help Mr Gibbs and Mr Foster was trying to look after his wife, which is understandable in view of her condition. The guideline includes another important note about sentencing for offences in this lowest category, which states that, where the driving is markedly less culpable than for the lowest of the three categories, reference should be made to the starting point in the range for the most serious level of causing death by careless driving, which category contemplates a starting point of 15 months' custody and a sentencing range of 36 weeks to three years' custody.
- We hesitate to interfere with the judgment of the trial judge, the more so because of the care with which he expressed himself in his sentencing remarks. However, in our judgment, this was a case in which the appellant clearly was distracted from attention to his driving for a very short period indeed and, importantly, when his emotions as a result of the hospital visit must have made him susceptible to distraction. Given that, and given the other mitigating features of this case, we consider that it would be appropriate, without disrespecting the jury's verdict, to take the starting point for sentence to be the 15 months' custody for the most serious level of careless driving suggested by the note to which we have referred; and moreover we consider it is right to reduce that to 12 months because of the appellant's good character and other matters of personal mitigation.
- In view of this conclusion, we must consider whether the sentence should be suspended, a course which is permissible because of the reduction of the term to 12 months' imprisonment. The appellant has spent nearly three months in prison. If it be a merciful sentence to suspend that term of imprisonment, we consider this to be a proper case for mercy. In coming to this decision, we do not for one moment lose sight of the tragedy of Mr Gibbs' death, to which we referred at the start of this judgment, but we cannot see that any purpose would be served by requiring the appellant to spend longer in prison. Nor do we lose sight of the definitive guideline but in the end the regard that courts must have to the guideline does not compel the courts to sentence by rigid rules.
- We reduce the term of imprisonment to 12 months. We suspend the sentence for a term of two years. Subject to any observations counsel wishes to make, there will be a supervision requirement for 12 months. The appeal is allowed in those terms.
- MR ETHERINGTON: My Lady, the only other matter is this, and entirely a matter for discretion of the court, I accept: the appellant has been privately represented, as he was at trial. I appreciate the appeal against sentence is a different matter to an appeal against conviction and that it has succeeded in part. If the court thought fit to order his costs on the tax basis, then I have no doubt he would be very grateful and I make the application, but it is entirely a matter for the court. (pause)
- LADY JUSTICE HALLETT: No, Mr Etherington, I am afraid we are against you. Thank you very much for your assistance. I think there are some people behind who may wish to understand the full impact of the sentence.
- I suddenly thought, does the appellant need to speak to the liaison probation officer before he is released, given the conviction? (pause) The Registrar very kindly is going to inform Mr Gardener. He will provide the assistance he can.
- MR ETHERINGTON: And I have Mr Kelly sitting behind me. I am sure he will assist me in the matter.
- LADY JUSTICE HALLETT: Thank you very much.