England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		19 December 2017

1. MR JUSTICE GREEN: On 7th August 2017, in the Crown Court at Southampton, the appellant was convicted on count 1, dangerous driving, contrary to section 2 of the Road Traffic Act 1988. On 8th August he pleaded guilty to the summary offence of driving without insurance. In relation to count 1 he was sentenced to a term of 12 months' imprisonment, in relation to the summary offence, no separate penalty was imposed. Having committed an offence during the 2 year operational period of a suspended sentence of 18 months' imprisonment, imposed on 19th March 2015 in the Crown Court at Basildon, for an offence of possession of a prohibited firearm the suspended sentence was activated in full consecutively.
2. The facts may be summarised as follows. The appellant had obtained a loan to acquire a Range Rover. Mr Dennis Ofusu acted as guarantor for the loan. The appellant owed Ofusu a substantial sum of money and Ofusu sought repayment. To this end he visited the appellant's home and spoke to his mother and uncle. However he was unsuccessful in his efforts. The appellant apparently took exception to these efforts. On 21st November 2016 he drove to Goals Football Academy on Millbrook Road where Ofusu attended and they spoke. An argument over the money ensued. The appellant told Ofusu that had they been in London he would have arranged to have him killed. A lorry driver parked in the vicinity, who was an independent witness, saw what happened next. The appellant returned to his vehicle and then drove into Ofusu who was standing on the pavement. He made contact with his left leg and as a result he ended up on the bonnet of the appellant's vehicle. He was hanging onto the windscreen wipers to so stop himself from falling off. The appellant continued driving at approximately 15 - 20 miles per hour. He started to move the windscreen wipers and shouted out of the window: "I told you I would kill you". His friends told him to stop. However, he mounted the kerb of the separation zone between the service road and the dual carriageway and then braked. Ofusu fell off the car. Half of his body landed in lane 1 of the dual carriageway and the rest on the grass verge. Millbrook Road was a busy dual carriageway leading out of Southampton to the west. The appellant reversed to where the Toyota vehicle had previously been parked. He then left with his friends on foot. However, an hour or so subsequently he returned and he walked past a police van. He was at this point in time wearing different clothes. However he was pointed out by Ofusu, who was giving a statement to the police.
3. The appellant was arrested. The injuries to Ofusu were not serious. He had a swollen little finger and a graze on his right knee.
4. In the course of his police interview the appellant claimed that Ofusu had jumped in front of him and was blocking his way and he denied driving into him.
5. In his sentencing remarks the judge summarised the facts and he observed that the appellant had a long list of motoring offences to his name committed during the operational period of the suspended sentence order. On page 4 of the transcript of the sentencing remarks the judge is recorded as saying as follows:

"The Suspended Sentence Order was imposed because you were in possession of a prohibited weapon. You have completed, as I understand it, the 180 hours unpaid work. I have to look at whether or not it would be unjust to impose the full terms of 18 months' imprisonment and I am bound to say that your record, particularly your driving record since that sentence was imposed, together with the offence of dangerous driving and the motivation behind it, lead me to the conclusion that there is no reason why that 18 month term should not activated in full, notwithstanding the work that you have done, unpaid in the community.

As far the dangerous driving is concerned, there is precious little mitigation available to you beyond the fact that by chance Mr Ofusu was not more seriously injured than turned out to be the case. The use of of a car deliberately as a weapon in those circumstances, in effect in order bully him, was wholly inexcusable and the sentence for dangerous driving will be one Ofusu 12 months' imprisonment. That will be served after you have completed the 18 months in terms of the suspended sentence which is now activated. A total therefore of two-and-a-half years' imprisonment. You will serve half that period less any time spent in custody. You will be released at the halfway point you will be subject to post-sentence supervision for a period of 12 months thereafter."

6. It is now argued on the appellant's behalf that the judge failed to take due account of the fact that the appellant had complied with virtually all of the conditions attached to the previous suspended order. It is argued that this failure means the overall sentence was too high and the judge erred. It is argued that it is illogical to give at least some credit for adherence to the SSO requirements. If no credit is given there is nothing to distinguish the appellant from others who failed to observe the conditions of a SSO and who were then warned and brought before a court.
7. Today, in concise submissions before us, Mr Gammon argued that the second offence was in substance less serious than the first offence, that the appellant had complied with the SSO requirements for 20 out of 24 months out of the suspension period and in terms of principle some reduction, albeit modest, should be made to reflect that level of adherence. If there is no reflection at all it deters adherence to requirements attached to SSOs.
8. We turn to our conclusions. There are five general points we would make about the approach adopted by the judge in this case. First, the judge did address himself to the facts relating to observance with the SSO. It cannot therefore be argued he ignored a relevant consideration. He took account of the facts and asked whether it was "just" to give some credit for them. He concluded that it was not.
9. In arriving at this conclusion he identified three relevant factors: (i) the appellant's prior convictions, which included the possession of the Taser, but in particular his very poor driving record since the SSO was imposed; (ii) the offence of dangerous driving itself and; (iii) the motivation behind the dangerous driving ie the use of the vehicle as a weapon.
10. The second general point is this. The real question which arises is therefore whether the judge correctly considered it just to accord no credit at all. As to this the judge stated that the SSO had failed to deter the appellant from committing further offences, the lengthy list of motoring offences all committed during the operational period established this. These were factors the judge was, in our view, entitled to take into account, but this still leaves open the question whether these factors warranted the giving of no credit.
11. The third point is that the punitive component of the prior sentence was a suspended prison sentence, in conjunction with the requirement to perform 180 hours of unpaid work and this latter ingredient of the punishment was completed in full. The appellant has thus served part of the punishment imposed upon him on the previous occasion.
12. As was argued by Mr Gammon, if no credit at all is accorded the person is in substance in no different position to the offender who flouts all the requirements imposed under a SSO. We see some force in this argument.
13. The fourth point is that in relation to the dangerous driving the judge imposed a sentence of 12 months' imprisonment. Given the seriousness of the behaviour giving rise to this offence this might be thought to be on the lenient side. A significantly higher sentence could have been imposed given the deliberate use of the vehicle as weapon, coupled to threats to kill and the real possibility the complainant could have been far more badly injured than he was.
14. The next and fifth point is that in arriving at the final sentence the judge did not expressly identify totality as the overarching guiding principle. It is possible that this is what he was seeking to achieve when he considered the overall question of justice and he sought to activate the SSO first and then impose 12 month sentence for dangerous driving consecutively. However, the judge did not explain that this was the approach he was adopting.
15. On balance we have formed the view that the judge erred in according no credit at all for the previous observance of the requirements attaching to the SSO. We consider that in principle where there has been substantial adherence accorded to the requirements attached to the earlier order this should be reflected in the ultimate sentence imposed. We take the view that the judge was entitled to reduce the credit but not to discount it altogether. In our judgment, the judge should have given at least 3 months' credit. The judge's decision not to give credit at all is not justified fully by the factors he refers to. These do not explain why no credit was given as opposed to some reduced credit. The judge does not for instance set out the facts of the previous motoring offences and in some appropriate way calibrate them against the fact that the appellant had substantially adhered to the requirements attached to the SSO. We recognise that the judge might have had totality in mind but it is not clear to us that this is necessarily the case.
16. We consider that the judge was entitled to impose consecutive sentences. The facts relating to the dangerous driving are quite different to those giving rise to the activation of the SSO. We consider that the judge was entitled to impose the sentence for 12 months for the dangerous driving. The net effect is we set aside the sentence imposed. We activate the SSO and impose a sentence of 18 months' imprisonment. We impose the sentence of 12 months' imprisonment for the dangerous driving and we make the two sentences consecutive to each other. To this extent the appeal is allowed.
17. LORD JUSTICE HOLROYDE: Mr Gammon, the reduction by 3 months of the activated suspended sentence has consequences for the period of disqualification. That should be reduced it seems to us by one and-a-half months. The total I think accordingly becomes thirty-seven-and-a-half months plus the requirement of the extended driving test.
18. MR GAMMON: I can make him aware of that and he will be notified of the date that he can apply for his licence.

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