England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16 June 2009

1. LORD JUSTICE MOORE-BICK: HHJ Lorraine-Smith will give the judgment of the court.
2. HIS HONOUR JUDGE LORAINE-SMITH: On 22 January 2009 in the Crown Court in Leicester this applicant was convicted of causing death by dangerous driving. On 12th February 2009 he was sentenced by the trial judge, HHJ Watson, sitting at Birmingham, to five years' imprisonment and disqualified from driving for seven years. He was ordered thereafter to take an extended re-test.
3. He renews his application for leave to appeal against sentence after refusal by the Single Judge. We grant his application for leave to appeal.
4. The facts were as follows. The accident occurred at about 3.15 on the morning of 30 June 2008 on the A1 southbound at Tickencote near Stamford. The appellant was a taxi driver and was a partner in a business called Stamford Cabs. He was returning to base after dropping off a fare and was travelling at about 88 miles an hour. The road is a dual carriageway and the speed limit is 70 miles an hour. That stretch of the A1 was not illuminated by street lighting.
5. The appellant overtook a Renault Clio, which was travelling in the inside lane, at about 70 to 75 miles an hour. He pulled out well in advance of it, gave it a suitably wide berth and then began to pull back into the nearside lane.
6. The deceased, Mr Garcia, was riding a motorcycle in the inside lane ahead of the Clio at speeds of between 35 to 40 miles per hour. The appellant saw the motorcycle and began to take avoiding action but was not able to avoid colliding with it. The Clio, which by now was travelling behind, ran over Mr Garcia's body and he died as a result of his injuries.
7. There was an open line between the appellant's mobile phone and that of his business partner at the time of the collision, and he was in conversation with her. He was holding his mobile telephone to his ear at the time of the accident. That, it would appear, was one of the main issues in this trial and the trial judge found that the jury must have been satisfied that that was the case. In fact, the appellant's Bluetooth system was not charged up and that is why he was using his mobile phone in the early hours of that morning.
8. The appellant remained at the scene and, following the arrival of an ambulance and the police, he was arrested. When interviewed, he denied using the phone at the time of the accident. He said he had only seen the motorcyclist a split second before the collision, that he looked in front of him when he overtook the Clio and thought there was nothing there. He said he did not know where the motorcyclist came from.
9. When sentencing the appellant the judge said that he was driving at 88 miles per hour and the jury by their verdict must have concluded that he was using his mobile phone at the time, and he had lied to the police about that matter. The line had been open for 18 minutes. He was distracted and in all probability had the phone in one hand and so had just one hand on the driving wheel. This was in the early hours of the morning. That he had had a long working day perhaps mattered not, the important combination of features were the time of night, the speed and the use of a handheld mobile telephone.
10. The deceased was wearing a high visibility jacket and his rear light was lit. The judge did not consider that it mattered whether the deceased was travelling at a slower speed than you might expect on the A1, nor whether the driver of the Clio had noticed him. She said that the appellant should have seen him and that his driving was so dangerous that an accident was inevitable.
11. Addressing the various levels as defined in the Guidelines, as published by the Sentencing Guidelines Council, she found that the use of the mobile phone created a significant risk of danger, level three, but that the fact that the applicant was a taxi driver who had shown that he knew he should not have a handheld mobile phone in his hand raised the risk level to substantial, level two. We have had some difficulty in following exactly how the judge reached that conclusion.
12. She identified the mitigating features as being his particularly impressive driving record, and the fact that he was 32 and had no previous convictions for driving offences, and she accepted that the appellant was devastated by what had happened. But the judge then went on to say this:

"But it is unfortunate that in the pre-sentence report, where you were given every opportunity to indicate that in the light of the verdict of the Jury that you accepted responsibility for what had occurred on this particular night, you did not do so. That, I am afraid, is another factor which counters the mitigating factors in this case to a significant degree.

You have been unable to face up to your responsibility for causing the death of Mr Garcia on that evening, and for that reason the starting point in the guidelines is five years' custody and that is where it will remain."

13. The appellant had contested this case as he was entitled to do. In so doing he had lost substantial potential credit for a plea, but there was no doubting the effect upon him of the case in general. That was clear from what he told the probation officer, and from character references to the court, and the judge herself accepted that he was devastated by what had happened.
14. Against that background we do not consider that the judge was right to find that this inability to face up to his responsibility for causing the death of Mr Garcia within a mere three weeks of the end of the trial should, as she said, counter the mitigating factors in this case to a significant degree. With that in mind we think that the sentence she finally decided upon was too long. We have therefore granted leave and we allow this appeal. The sentence of five years will be quashed and a sentence of four years' imprisonment substituted for it.
15. The appellant's previous driving record was said by the judge to be particularly impressive. That we do not consider was reflected in the period of disqualification. He had been a professional driver for some years. He clearly drove a great deal and yet he had no previous driving convictions.
16. With that in mind, we reduce the period of disqualification to one of four years. He will have, thereafter, to take an extended test. Thus this appeal is allowed. The period of imprisonment is reduced to one of four years and the period of disqualification also to one of four years.
17. LORD JUSTICE MOORE-BICK: Mr Clews, you do not currently have a representation order. We think you should have one.
18. MR CLEWS: I am very grateful. Thank you very much.
19. LORD JUSTICE MOORE-BICK: We are very grateful for your assistance. You can leave the court in the knowledge that it was your presentation of this application that persuaded us.
20. MR CLEWS: I am very grateful. Thank you very much.
21. LORD JUSTICE MOORE-BICK: Thank you very much, indeed.