England and Wales Court of Appeal (Criminal Division) Decisions

Neutral Citation Number: [2016] EWCA Crim 2017

No: 201602002/A2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2A 2LL

Friday, 18th November 2016

B e f o r e :

MR JUSTICE SINGH

RECORDER OF WESTMINISTER

(HIS HONOUR JUDGE McCREATH)

(Sitting as a Judge of the CACD)

R E G I N A

v

GARY LEE OLIVER

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J U D G M E N T

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1.       RECORDER OF WESTMINSTER: On 31st March in the Crown Court Newcastle‑upon‑Tyne, the appellant pleaded guilty to four counts of driving whilst disqualified and two counts of dangerous driving. He was sentenced to a total of 24 months' imprisonment.

2.       The single judge referred the case to the Full Court on the limited basis that the judge fell into error by imposing a period of disqualification from driving which was expressed as taking effect from the date of the appellant's release from custody. A further technical error was made in that the judge ordered that the appellant should take and pass the extended driving test in circumstances where he was already subject to such an order. We will return to these matters later in this judgment.

3.       At all material times the appellant was a disqualified driver. On 11th September 2015 he was seen by police officers driving a car on a road in Ashington. He saw the police officers and drove off. This was count 1 on the indictment, an offence of driving whilst disqualified.

4.       On the following day he was seen again driving the same car by other police officers who elected to follow him. They tried to block his route but the applicant evaded them by driving over a pavement where pedestrians were standing outside a public house and thereafter driving through two sets of red traffic lights and over a roundabout at something like twice the permitted speed limit of 30 miles per hour. He succeeded in avoiding arrest until 19th September when he was arrested and released on bail. These offences found their way onto the indictment as counts 2 and 3, counts of driving while disqualified and dangerous driving.

5.       On 13th November 2015 he was again seen driving a car by police officers, who tried to stop him. He drove off at high speed, overtaking other vehicles dangerously and narrowly missing oncoming traffic. He abandoned the car and made his escape. Later that evening he was seen behind the wheel of another car which he admitted having driven to a limited extent. These offences were counts 4 and 6, driving whilst disqualified and count 5, dangerous driving. He was sentenced on count 1 to 3 months' imprisonment to run consecutively to the other sentences; on counts 2 and 4 he was sentenced to concurrent terms of 2 months' imprisonment; counts 3 and 5 he was sentenced to 10 months' imprisonment consecutive to each other and to the other terms and on count 6, to a further sentence of 1 months' imprisonment, consecutive. He was also disqualified from driving for 4 years. The judge ordered the disqualification to commence on his release from custody. It is clear from her sentencing remarks that she intended to pass a sentence compliant with section 35A of the Road Traffic Offenders Act 1988. For reasons we will return to later she fell into error in the manner in which she did it.

6.       The appellant was born in October 1984. He has a lamentable record of offending, in particular in relation to offences involving driving. He has numerous convictions for driving whilst disqualified and associated offences together with two previous convictions for dangerous driving. There are other convictions for offences of less relevance to the matters before the court on this appeal.

7.       The grounds of appeal invite the court to show mercy to the appellant in the light of his current medical condition. In the summer of 2015 he was the subject of an attack involving chemicals being thrown into his face which caused him to lose his sight in one eye and some damage to the other.

8.       It is submitted that his time in custody has been made the worse because of the significant disability which these injuries have caused him thus increasing the impact of the sentence upon him. This court is not without sympathy for him. The court's sympathy is that much the less in the light of the unfortunate fact that these injuries predated the offences which brought him before the court and it follows when he committed the offences of dangerous driving, both of which caused a real risk of injury or worse to innocent passers-by, he had significantly defective vision. In these particular circumstances it is difficult to see how the interests of justice will be well served by invoking the court's mercy.

9.       Given the nature of these offences, the repetition of them whilst on bail and the appellant's appalling driving history, it is impossible to say that sentences passed upon him in their totality were in any sense wrong in principle or manifestly excessive.

10.   The statutory provisions contained within section 35 of the Road Traffic Offenders Act 1988, as amended, are not easy to construe. This court has given helpful guidance in provisions to sentences in the case of R v Needham [2016] EWCA Crim 455. The judgment in that case however was given on 28th April 2016, about 4 weeks after the sentence was passed in the case before us today.

11.   This is a case to which the provisions of section 35A apply. The court clearly intended to impose a disqualification to which these provisions applied as well as to impose a custodial term for the same offences. In those circumstances the court was obliged to pass what is described as a "discretionary disqualification period" as well as "an appropriate extension period" (see section 35A(2)).

12.   In the ordinary way this creates no problem because the court in most cases needs only to consider what the appropriate disqualification is and then to add an uplift of one‑half of the custodial term thereby ensuring the offender does not avoid consequences wholly or in part of a disqualification by reason of being in custody.

13.   Matters however are more complicated where the offender has been remanded in custody prior to sentence. In those cases the imposition of a discretionary disqualification period which does not take account of the time spent on remand would be likely to lead to the offender being disqualified for longer than would apply in the case of an offender who had not been remanded in custody.

14.   The court in Needham suggested that:

15.   In this case, if the appellant had not been in custody, the appropriate discretionary period would have been 4 years and the extension period 12 months, thus leading to a disqualification for 5 years. He had however been in custody on remand for four‑and‑a‑half months so that the remaining period which he would have to serve in custody after sentence would be seven‑and‑a‑half months. Arithmetical exactness will not always be possible in cases such as this and it would not be unreasonable, in all of the circumstances of this case, to round down the seven‑and‑a‑half months to 6 months for the purpose of calculating the overall disqualification period.

16.   Giving broad effect to the intention of the sentencing judge to impose a richly merited disqualification effective for 4 years or thereabouts would result in an overall disqualification of 4 years and 6 months, made up as a discretionary disqualification of 3 years and 6 months and an extension period of 12 months, that is to say one‑half of the custodial term. By this means the appellant would not suffer a disadvantage and the provisions of the statute would be properly complied with. Accordingly we quash the order of disqualification made by the sentencing judge and substitute for it a disqualification of 4 years and 6 months. The disqualification which he will now be subject to will last for four‑and‑a‑half years from sentence and crucially 3 years ten‑and‑a‑half months from release rather than the 4 years as expressed by the judge. In those circumstances the appellant will not be more severely dealt with on appeal than he was dealt with by the court below.

17.   Section 36(7) of the Road Traffic Offenders Act 1988 provides that where a person is disqualified until he passes the extended driving test: "(b)a court shall not make a further order under this section while he is so disqualified."

18.   This appellant was made subject to an order of this kind on 5th December 2003 and again, probably unlawfully in the light of the 2003 order, to another on 19th December 2012. He has never taken nor passed the extended driving test. Accordingly the order made by the judge in the instant case was unlawful and falls to be quashed by this court.

19.   To the extent of altering the terms of the disqualification and of quashing the order requiring him to take the extended driving test, and to that extent only, we grant leave and allow this appeal.