England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Date Thursday, 12th March 2009

1. LADY JUSTICE HALLETT: This case has aroused a great deal of public interest and comment. Unfortunately, some of it has been misinformed. It is important to state at the outset of this judgment the nature of the offence admitted by this applicant. He pleaded guilty to an offence of dangerous driving. He has never been accused of or admitted an offence of causing death by dangerous driving.
2. The facts of the offence that he admitted are as follows: at quarter past six on the evening of Christmas Day 2007 he drove along the M1 motorway at speeds of about 60 miles per hour with his wife and mother in the car. Over a period of about 10 to 15 minutes he received and read two text messages from a journalist and he composed and sent in reply three substantial text messages, on his mobile telephone.
3. At about the same time Mr Martin Gombar was driving along the same road in an Audi motor car. Unfortunately, he was unfit to drive through drink and his car had two defective tyres. This may help to explain what happened next. Mr Gombar crashed into the central reservation. He and his passengers made it to safety on the hard shoulder, leaving the Audi straddling two lanes. The motorway was dark and the Audi was unlit. According to a police officer who drove along the same stretch of road at about 50 miles an hour soon after the accident, knowing the Audi was there, the Audi was virtually impossible to see until one was almost upon it. Several vehicles narrowly avoided a major collision. One just clipped the Audi as it passed. Another vehicle managed to avoid the Audi but collided with the central reservation in the process.
4. Sadly, Mr Gombar made the fatal decision to return to his car. It seems therefore that there was little, if anything, the applicant could do to avoid colliding with him. It was not suggested that at this time he was paying insufficient attention or that, had he been driving more slowly, he could have avoided the collision.
5. Mr Gombar was killed. The applicant was knocked unconscious briefly and his wife and his mother were injured. Nevertheless, the applicant called the emergency services and he risked his life trying to flag down other vehicles to stop them colliding with the cars. He later handed the mobile telephone he had been using to the police for them to examine as part of their investigation. It transpired that he had finished texting some two minutes and 3 kilometres before he came upon Mr Gombar in the carriageway.
6. Mr Baker QC, to whom we are indebted for his extremely helpful submissions, informed the court that in the course of the police investigation into the death of Mr Gombar the applicant attended for interview, as requested, on three separate occasions, in January, April and October 2008. It was nearly a year after the crash that the applicant was eventually informed he would not be prosecuted for causing death by dangerous driving.
7. Mr Paul, who appeared on behalf of the Crown before us, informed us the reason for the delay was that considerable resources are required to investigate properly the use of a mobile telephone. The decision to analyse the applicant's use of his telephone was not taken until some time after the crash. Once the results of the analysis were available the decision was taken to charge the applicant with the offence of dangerous driving. Mr Baker was anxious to draw to our attention the fact that by that time the option of charging the applicant with a summary only offence of using a mobile telephone contrary to the Road Vehicle (Control and Use) Regulations of 1988 and section 42 of the Road Traffic Act 1988 was no longer available. Had it been, the applicant would have been in a position to offer to plead guilty to a summary only offence, for which a fine at level 3 has been laid down by Parliament. Imprisonment would not have been option. Mr Paul was unable to confirm or deny whether such a plea would have been acceptable.
8. Mr Baker developed this line of argument further, stating as he did so, that he now regrets not developing it fully before the trial judge. He accepted that the fact Parliament has provided a maximum penalty for a summary offence which might "cover or parallel" the actual offence charged, does not bind the sentencing court to the statutory maximum for the summary offence. Nevertheless he reminded the court of the principle set out in R v Bourgass [2007] 2 Cr App R 40 and reaffirmed to an extent by the present Lord Chief Justice (then President of the Queen's Bench Division) in R v Bright [2008] EWCA Crim 462, that, where the offences mirror each other, the statutory maximum for one may act as a "guide" to the sentencing court. Pausing there, for this line of argument to have any force Mr Baker would, of course, have to persuade us that the facts of the instant offence as charged do indeed mirror an offence of using a mobile telephone contrary to the Regulations. The applicant here pleaded guilty not simply to an offence of using a mobile telephone while driving but to using a mobile telephone in circumstances which amounted to dangerous driving.
9. Mr Baker rightly pointed out he did so at the first opportunity. The case was adjourned for reports, but when the applicant next appeared at the magistrates' court, despite representations from both the defence and the prosecution that the matter was suitable for summary trial, the case was committed to the Sheffield Crown Court. It there fell to Wilkie J to sentence the applicant. On 25th February 2009 he imposed a sentence of 12 weeks' imprisonment. Further, the applicant was disqualified from driving for 12 months and until an extended re-test was passed and he was ordered to pay prosecution costs. Given the relatively short length of the sentence, the Registrar did his best to ensure that this application for leave to appeal against sentence has been referred to this court at the earliest possible date.
10. The mitigation available to the applicant was powerful indeed. The applicant had the benefit of an extremely positive pre-sentence report, to the author of which the applicant had expressed considerable remorse. Despite having been a magistrate himself, he admitted that he had not thought through the potential consequences of his actions. He accepted full responsibility for his offending and he did not attempt to minimise or justify his behaviour. He felt that he had let down his local community, his employers and his family. He recognised the impact of his offending on possible victims of behaviour of this kind.
11. Mr Baker provided for Wilkie J very few testimonials for the applicant. This was because the applicant himself was reluctant to approach his friends and colleagues to speak on his behalf. We have had the benefit of considerably more testimonials which we were told were unsolicited. We shall attempt to summarise what people have said. The applicant came to this country at the age of 11, speaking no English. He worked his way up the retail ladder. He is described as a man of integrity and commitment and a role model to many within his community. His public service has been considerable, both at the local and national level, and in 1998 it was rewarded with a life peerage. The applicant retains strong links with his local community in South Yorkshire, where he chairs a number of local bodies and organisations, including, we note, Victim Support. He devotes much of his time to assisting dispute resolution and the promotion of inter-faith understanding nationwide to the extent that he has at times put his own life at risk. In the House of Lords he is a full-time and active member. He has been involved in a number of high profile initiatives both at home and abroad. He has been involved in humanitarian work in Darfur, Sudan and Nigeria.
12. We could go on. The authors of the letters speak with one voice: the applicant is a man of stature and international repute, he has done considerable good work over the years for society as a whole and he is capable of doing even more in the future. The authors accepted that the applicant has broken the law and may deserve to be punished, but they fear that a prison sentence may affect significantly the work that he can do for the community.
13. Mr Baker argued that this court should quash the sentence of imprisonment, essentially because it would be in the greater good. The applicant has but days to go to complete his sentence. His release date is 20th March. Mr Baker assured us that the applicant does not suggest he cannot survive that length of time. However, both he and those who know his work are concerned about the impact of a prison sentence on his ability to travel and to persuade. As a former serving prisoner, people may not listen to him with the respect and care that they once did.
14. Mr Baker conceded that some offences of dangerous driving may well merit an immediate custodial sentence, but he argued this was not one such. He relied in particular upon the following mitigating factors:

(1) the "limited" nature of the offence; the applicant's driving was not in fact described as erratic or dangerous by other road users and there is no evidence of excessive speed or any other form of bad driving;

(2) the delay in the decision to prosecute and its effect;

(3) the immediate pleas of guilty;

(4) the genuine remorse expressed ;

(5) the applicant's own significant personal injuries from the crash; not only was he knocked unconscious as we have indicated, he suffered lacerations to his face, which required significant stitching and will result in permanent scarring;

(6) his unblemished driving record over the last 30 years;

(7) and (8) his previous excellent character and the effect upon him and his family of this offence

(9) the applicant's conduct at the scene;.

15. Mr Baker described the applicant's conduct after the accident as exemplary. It was. He could not have done more. Similarly, his response to the police investigation was unusually frank and open. He provided every assistance, including handing over the incriminating mobile telephone. He made no attempt to deceive the police by handing over another mobile telephone he had with him at the time.
16. Although Mr Baker did not seek overly to criticise the police or the prosecution for taking nearly a year to reach its decision as to what charge to bring, nevertheless Mr Baker urged the court to bear very much in mind the stress of that period of nearly 12 months, during which the applicant had to live with the prospect of being charged with a very serious offence of causing death by dangerous driving, which he did not commit.
17. Finally, Mr Baker assured the court that although the applicant was in no way criminally nor morally culpable for causing the death of Mr Gombar, he has had to live with and will continue to live for the rest of his life with the burden of appreciating that it was his vehicle which ultimately contributed to causing Mr Gombar's death.
18. Mr Baker acknowledged that there is not one law for the rich and powerful and one law for the rest. Conversely, Mr Baker properly urged upon us that the applicant should not be punished more harshly because of his character and achievements. He put before us the applicant's personal circumstances to underline the point he wished to make, that 10 to 15 minutes of recklessness in a lifetime of achievement and public service have cost not only the applicant dear, but they may cost others and particularly vulnerable members of society dear. The circumstances of the offender are always relevant to the sentencing process, and Mr Baker submitted that in this case the applicant has already been punished severely for his recklessness.
19. Mr Baker acknowledged, as indeed did Mr Paul, that this was a difficult sentencing exercise. It is the kind of case which attracts strong and divergent views as to the appropriate level of penalty. There is little, if any, guidance on cases where texting at the wheel is the essence of the offence of dangerous driving as distinct from an aggravating feature of the offence of dangerous driving. The only guidance brought to our attention is the Sentencing Guidelines Council's Magistrates Courts Guideline, in which categories of dangerous driving are there set out. In ascending order of seriousness, culpability and harm they are:

(1) a single incident where there is little or no damage or risk of personal injury;

(2) an incident(s) involving excessive speed or showing off, especially on busy roads or in a built-up area, or a single incident where there is little or no damage or risk of personal injury but the offender was a disqualified driver;

(3) prolonged bad driving involving deliberate disregard for the safety of others or incident(s) involving excessive speed or showing off, especially on busy roads or in a built-up area by disqualified driver, or driving as described above while being pursued by police.

20. The first category has a starting point of a medium level community order; the second a starting point of 12 weeks custody; for the third category the Council recommends committal to the Crown Court. Mr Paul confirmed that both the prosecution and the defence in this case suggested to the magistrates' court that it was the appropriate venue for hearing this matter because it fell into the second category, the category for which a starting point of 12 weeks' custody following a contested trial would have been appropriate.
21. Mr Baker argued forcefully that this case does in fact fall into the second category. He accepts that there was here a prolonged course of bad driving, but suggests that any disregard for the safety of others was reckless rather than deliberate. Wilkie J proceeded on the basis that there was here a deliberate disregard for the safety of others. For our part, we are content to proceed on the basis that the applicant's disregard for the safety of others was reckless rather than deliberate but it was at the extreme end of recklessness and this offence straddles, therefore, the two most serious categories.
22. We bear very much in mind, as Mr Baker invited us to do, that the Sentencing Guidelines Council recommends for those first-time offenders who drive at a grossly excessive speed in a built-up area in a way which obviously puts people's lives at risk a starting point, before any consideration of mitigation, of 12 weeks' custody. Similarly, for those who drive with significantly excessive quantities of alcohol in the body the starting point is also one of 12 weeks' custody. Mr Baker sought to persuade us that this case fell into a less serious category than those two.
23. Having acknowledged the wealth of mitigation available to the applicant, we turn to the aggravating features of this case:

(1) the length of time that the applicant was dividing his attention between his telephone, his control of the car and the road;

(2) the fact that this was a fast road which required every driver to keep their wits about them at all times;

(3) the fact that it was dark;

(4) the fact that the applicant was not only using his telephone and receiving text messages, but he was answering them too, and answering them at significant length. It must have taken considerable focus to perform that operation, even with a familiarity with texting.

24. The cumulative effect of those factors is such that in our view the judge had no option but to impose a custodial sentence. As Wilkie J put it in his very carefully crafted sentencing remarks:

"It is now well established ... that reading and composing text messages over a period of time constitutes a gross, avoidable distraction ... it is a highly dangerous activity".

We reject Mr Baker's submission, therefore, that this case was not so serious as to justify a custodial sentence.

25. We turn to the question of whether or not such a sentence should have been suspended. The judge acknowledged that he thought long and hard about this question, as have we. He decided that by reason of the "prolonged, deliberate, repeated and highly dangerous nature of the driving", only an immediate custodial sentence was justified. We agree. For 10 to 15 minutes in the dark on a motorway the applicant put people's lives at risk and for no good reason. We hope the message has gone out loud and clear that texting at the wheel is dangerous. It does not matter who you are, if you are convicted of an offence of dangerous driving of this kind you may go to prison.
26. However, given the tenor of Wilkie J's sentencing remarks, it may be that had the applicant been remanded in custody for some weeks pending sentence, the judge may have felt able, in all the circumstances, to impose a suspended sentence. That is, therefore, one option open to us that was not open to him.
27. The applicant has now all but served his sentence, which, as we have indicated, was not excessive. Given our duty to the public we cannot go as far as Mr Baker requested and wipe from his record a perfectly proper sentence. However, given the very exceptional mitigation available to this applicant, some if it developed before us in open court and some contained in material before us that was not before Wilkie J (which we do not intend to rehearse in any greater detail), we are persuaded that we can take an exceptional course. Accordingly, we are prepared to order that the sentence of 12 weeks stands but that it be suspended for a period of 12 months.
28. We should like to conclude by expressing our deepest sympathy to the family and friends of Mr Gombar, who paid with his life for his errors of judgment.