England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Monday, 23rd November 2009

1. MR JUSTICE GRIFFITH WILLIAMS: On 23rd July 2009 in the Crown Court at Nottingham Martyn Frederick Crew, who is 52 years old and was of previous good character, was sentenced by His Honour Judge Bennett to 14 months' imprisonment, disqualified from driving for 5 years and ordered to take an extended driving test for an offence of causing death by careless driving to which he had pleaded guilty previously and at the first opportunity. He renews his application for leave to appeal against sentence after refusal by the single judge.
2. The applicant has lived with his wife and three children in San Francisco since 2001. He flew to this country with two of his children, arriving at Heathrow airport on Christmas Day 2008 at about 10.30 am. Having hired a motor car, he drove with his children to Lincolnshire, intending to visit his mother. Shortly before 3.00 pm he was driving northwards along the A46 between Owthorpe and Kennington. The weather was fine and visibility was good. That part of the road is long and straight and of single carriageway. Traffic conditions were light.
3. Travelling in the opposite direction was 21-year-old Natasha Jackson who was alone and driving a Vauxhall Astra motorcar. There was a head on collision with forced Miss Jackson's car off the road down a steep bank and into collision with a tree. She died soon afterwards.
4. The explanation for the accident, as found by the sentencing judge and from which counsel, who appeared for the applicant in the Crown Court, did not dissent is that the applicant was tired by reason of his long flight and momentarily fell asleep; when his car veered to its nearside, he woke up and, we would add, in all probability, because he was used to driving on the right side of the road in the United States of America, he instinctively over-corrected the car's direction of travel, driving onto his offside and into collision with Miss Jackson's car.
5. Although the applicant had driven otherwise properly, it was accepted in the Crown Court - and in this court Mr Metzer does not seek to argue otherwise - that the offence falls into the most serious category identified by the Sentencing Guidelines Council in the Definitive Guideline on Causing Death by Driving. It follows that the starting point was 15 months' imprisonment with a sentencing range of 36 weeks to 3 years' imprisonment.
6. In the Crown Court, on the applicant's behalf, it was submitted that, in the absence of aggravating factors, the mitigation of the applicant's undoubted remorse and shame, his previous good character and his long unblemished driving record, the sentence should have been significantly shorter than the sentence passed. In counsel's written advice and grounds of appeal, it was submitted in reliance on the decision of this court in R v Larke [2009] EWCA Crim 870 that the appropriate sentence was a short suspended sentence, with an unpaid work requirement. As my Lord, Scott Baker LJ said when giving the judgment in Larke, these cases are not only tragic but present very, very difficult sentencing problems for the judge who has to pass sentence.
7. In the present case the parents of Natasha Jackson lost a daughter, whose life was full of promise. One cannot fail but be moved by the victim impact statements they have made. The applicant is a devoted family man, a very successful businessman, a man of much achievement. His family too suffer as a consequence of his offending and his imprisonment. But we emphasise that there must be an objective assessment of what is the proper sentence for this offence. The decision in Larke is not a guideline case. It was a decision on its particular facts. In that case the 74-year-old appellant caused an accident and the two consequential deaths by endeavouring to perform a U-turn which required a very careful look in both directions before doing so. She was guilty of a terrible misjudgment which this court said was momentary rather than continuing. In the present case, the carelessness was of a high order and, as the learned judge observed, bordered on dangerous driving. The accident occurred about 24 hours after the applicant had got up in San Francisco. In those 24 hours, on his own account, he had had some four-and-a-half to 5 hours sleep, during which he had twice been disturbed to attend to his 4-year-old son, who needed to be taken to the lavatory. As someone who is well used to travelling around the world, he must have known the risk he was taking, the risk which included injury or even death to his own children. His culpability was accordingly very high.
8. In this court we have been referred by Mr Metzer to a report from a US Attorney, David Gardner, who is a member of the State Bar of California. That report or opinion has been prompted by the applicant's concerns that his immigration status in the United States of America, may be prejudiced as a consequence of this conviction and the sentence. Mr Gardner stated that the sentence which Mr Crew received will be a significant factor which would lead a US court to conclude that he has committed a crime of morale turpitude. Under the Immigration and Nationalisation Act an individual who has been convicted of or admits having committed a crime of moral turpitude is "inadmissible unless the crime falls with the petty offence exception". We shall return to that later. Mr Gardner stated that an individual convicted of a crime of moral turpitude may also be subject to removal if the crime is committed within 5 years of admission as a permanent resident and a sentence of 1 year or more is imposed. That clearly does not apply in this case because the applicant has been resident in the United States of America for far longer than that.
9. Mr Gardner drew attention to an Aggravated felony defined as a crime of violence where the term of imprisonment imposed is for at least 1 year. A crime relating to vehicular homicide may be considered to be a crime of violence regardless whether the offence involves the intentional use of force.
10. Mr Gardner expressed the opinion that there is a basis for serious concern that the applicant's conviction and sentence will result in his immigration status in the United States being placed in jeopardy. The reason for those concerns are that the Definitive Guideline on Causing Death by Driving includes language and describes a number of factors which could, under United States law, be interpreted as the Federal equivalent of a crime of moral turpitude and aggravated felony involving the crime of violence. Mr Gardner stated that the imposition of a sentence of more than 12 months may be a clear indication to the US authorities of the seriousness of the offence. He stated that if the sentence was for 6 months or less, such a sentence would most likely avoid the possibility of the crime being considered to be an aggravated felony and could bring the conviction under the petty offence exception and thereby mitigate the potential adverse immigration consequences of a conviction for a crime of moral turpitude.
11. Of the petty offence exception Mr Gardner stated that "an individual will not be deemed inadmissible for one crime of moral turpitude if the maximum penalty for the offence does not exceed imprisonment for 1 year and if convicted of the crime the individual is not sentenced to a term of imprisonment of more than 6 months." As the maximum sentence for this present offence is 5 years' imprisonment clearly the petty offence exception does not apply. That undermines much of the opinion expressed by Mr Gardner.
12. Mr Gardner also drew attention to what he considers may be the position, so far as the applicant's lawful permanent resident status in the United States of America is likely to be. He says regardless of how the conviction will be treated under Federal Immigration Law an absence of more than 12 months from the United States by reason of a sentence could result in possible termination of the applicant's status.
13. We are not impressed by those concerns. They raise nothing more than a possible threat to that status. We consider it unlikely that the US immigration authorities would conclude that the applicant had abandoned that status by reason of his absence from the United States for a period of 12 months or more or indeed a period of less than 12 months. He has had permanent residence and a permanent home in California since 1991. He returned there when he was on bail for these offences. His wife and his children continue to live there. In the judgment of this court, it would be highly unlikely he could not discharge any burden placed upon him of satisfying the US immigration authorities that he had not abandoned his immigration status in the United States of America. We do not consider that the matters raised in the report of Mr Gardner in any way mitigate the sentence in this case.
14. Prior to 4th August 2008, when the new provisions came into force, careless driving, whatever its consequences, did not attract a prison sentence. But the maximum sentence, as we have already observed for that offence is 5 years' imprisonment. That is a matter which this court must take into account. Passing sentence the learned judge said this:

"I am of the opinion, therefore, that this case falls well into the top end of the range of guidelines to which have I have referred and had he been convicted of this offence after a trial, I would have sentenced him to two years' imprisonment. However, that is discounted, as I say, by reason of his plea of guilty. I take into account that he does not have a bad driving record in any way shape or form, he is otherwise a thoroughly decent man of positive good character and I take account of all the references which I have read, some of whom come from highly respectable people whose opinions I value. I also take into account that any sentence of imprisonment, for a man like this, will be very hard to bear and I take account of all that Mr Snell has urged on his behalf and no-one could have said more than he has."

15. In the judgment of this Court, His Honour Judge Bennett approached sentence in the case correctly and it cannot be said that the sentence of 14 months' imprisonment was arguably manifestly excessive. In reaching that conclusion, we have also had regard to the material which has been submitted to this court post conviction; these additional references merely underline the correction of his approach to sentencing this applicant.
16. We are however persuaded that the period of disqualification is manifestly excessive. The Definitive Guideline provides no guidance as to the length of disqualification and so it is important to bear in mind, first, the risk represented by the offender is reflected by the level of culpability which attaches to his driving, and secondly, the main purpose of disqualification is forward looking and preventive rather than backward looking. In that regard the applicant's previous unblemished driving record is clearly an important factor as is the absence of aggravating factors such as speed.
17. As to the extended driving test, the court's powers to make such a direction are discretionary. But having regard to the extent of the applicant's culpability and to the fact that this offence bordered on an offence of causing death by dangerous driving, we are of the view that such a direction was entirely appropriate.
18. We give leave to appeal the order of disqualification. We treat the hearing of the application as the hearing of the appeal. We quash the order of disqualification of 5 years and we substitute for it an order of disqualification for 2 years. In all other respects the renewed application is refused.