England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27 February 2018

1. MR JUSTICE GREEN: There is before the court a renewed application for leave to appeal against sentence.
2. On 30th June 2017, in the Crown Court at Wolverhampton, the applicant pleaded guilty to a count of causing death by dangerous driving. The judge treated this as a category level 1 offence, which has a starting point of 8 years and a range of 7 to 14 years' imprisonment, taking into account the guilty plea and other mitigating factors the applicant was sentenced to a period of 5 years and 4 months. He was disqualified from driving for 9 years and 8 months and until an extended re-test was passed.
3. The facts may be summarised as follows. Shortly before 2.00 pm on the afternoon of 3rd February 2017 the applicant was driving his Ford Focus motor vehicle. He had held a driving licence for approximately two-and-a-half years and had owned the vehicle for most of that time. The vehicle can be described as a performance vehicle which the applicant had modified in order to increase its power.
4. On the afternoon in question the applicant was driving northbound on the A4036 dual carriageway. This is subject to a 40 miles per house speed limit. It is divided by a central reservation. The applicant drove uphill towards the junction known as the Gateway. It was at this point that he collided with a Ford Mondeo driven Mr Magan Mistry whose wife, Mrs Vijaya Mistry, aged 74, was a front seat passenger. The court has seen CCTV coverage of the moment of impact. It is clear that Mr Mistry moved into the right-hand filter lane. In the ordinary course he would turn right and cross the dual carriageway that the applicant was driving along. The lights were such that Mr Mistry was entitled to turn right, crossing the highway provided it was safe for him to do so.
5. It is evident from the CCTV that he drove cautiously and slowly. However, as he was entering the nearside lane of the northbound carriageway his vehicle was struck by the applicant's vehicle. The force of the collision caused his vehicle to spin. Mrs Mistry was not wearing a seat belt. She was ejected through the side window of the Mondeo and she ended up on the ground. She sustained fatal injuries.
6. The cause of the accident was the applicant's dangerous driving. Evidence before the court indicated that the applicant had for a distance of between a 1000 and 1500 metres been racing a white Citroen. Both vehicles roared away from three different sets of traffic lights. The last of these lights was shortly before the road went uphill towards the Gateway where what had been a three lane carriageway now reduced to two lanes. As he raced towards the Gateway the applicant moved from side to side in an attempt to force the Citroen over. Witnesses described the applicant pulling sharply in front of the Citroen and cutting it off. In order to achieve this the applicant undertook as well as overtook other cars on the road. His driving was described as fast and erratic. He made no attempt to slow or brake and he crashed directly into the Mondeo. His average speed at various points was estimated, having been caught on CCTV in two locations, so that it could be measured, at 73 miles per hour. The speed limit was 40 miles per hour.
7. An ambulance was in the vicinity and it came to the scene of the crash. Mr Mistry was taken to hospital. He suffered bruising to his ribs. He was discharged. He was then taken to a different hospital where his wife lay. By the time he arrived she had died. It ultimately emerged that Mr Mistry had also suffered a fracture to his ankle.
8. When the police arrived the applicant was candid as to what had happened. He accepted responsibility. He was aware that he had been speeding. Drugs and drink testing proved negative. In the course of interview he underestimated the speed that he had been travelling at but he acknowledged that he had been an idiot and that he and the other driver had been playing around. He accepted that he had not looked at the junction to see if any cars were seeking to cross in front of him. He accepted however that he was familiar with the road so that he knew that drivers did turn across the carriageway at that point.
9. Ms Kubik QC, appearing for the applicant today, says that the primary thrust of the argument on behalf of the applicant is that this should have been treated as a level 2 case within the guidelines. Ms Kubik cites the authority of this court in R v Paul [2013] EWCA Crim 2034, which addresses the distinction between levels 1 and 2. In that judgment Treacy LJ emphasised that the guidelines were to be treated flexibly and with a degree of nuance, which was fact sensitive - see paragraph 27. In that case the court held that the racing, which was the subject matter of the offending, was intermittent and that this was relevant to the analysis of persistence of the driving which otherwise was an aggravating factor tending towards a classification of a case as level 1 or 2. Ms Kubik argues that the race in the present case was also intermittent and not continuous. She argues that applying the guidance in Paul the judge in the present case should have treated this as a level 2 case.
10. She has also argued that there were significant elements of personal mitigation including the early frank admissions, the real remorse and concern shown for the victims and the early guilty plea.
11. In his sentencing remarks the judge recited the relevant facts. He rejected the submission that this was a level 2 offence. He thought that it was "obviously" a level 1 offence. He identified three broad categories of fact which were relevant to his conclusion. First, the offending encompassed driving which involved a deliberate and flagrant disregard for the rules of the road, the speed at which the applicant was travelling was excessive by a very substantial margin. Second, there was racing over persistent period of time of between 1000 and 1500 metres. Third, there was a course of dangerous driving which involved undertaking of other cars. The driving had to be seen in the context of the general layout of the road which was not a motorway. This was, as the judge explained:

"... a road in a town where people could be walking, people could be cycling, people could be going around driving at normal everyday speeds, well within the limit..."

The judge therefore concluded this was a level 1 case.

12. We observe that under the Sentencing Guidelines level 1 encompasses the most serious offences involving inter alia deliberate decisions to ignore or a flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others. In considering the seriousness of any offence the court is required to take account of a variety of different factors. The following are included as factors increasing the seriousness of offending: A prolonged, persistent and deliberate course of very bad driving, greatly excessive speed, racing, competitive driving against another vehicle, driving above the speed limit, driving at a speed that is inappropriate for the prevailing road, aggressive driving such as driving too close to the vehicle in front or persistent, inappropriate attempts to overtake or cutting in after overtaking and failing to have proper regard to vulnerable road users.
13. In our judgment, the single judge was correct to refuse leave. The conclusion of the sentencing judge that this was a level 1 offence was within the proper judgment of the judge to make. It was clearly in accordance with the guidelines. The judge took account of a range of aggravating and mitigating factors in coming to the conclusion that he should take as his starting point 8 years and then reduce it further to end with the sentence that he imposed.
14. For these reasons we refuse this application for leave.

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