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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Sumner, R. v [2025] EWCA Crim 730 (15 April 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/730.html
Cite as: [2025] EWCA Crim 730

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Neutral Citation Number: [2025] EWCA Crim 730
Case No. 202304307 A1

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London
WC2A 2LL
15 April 2025

B e f o r e :

LORD JUSTICE JEREMY BAKER
MR JUSTICE GARNHAM
HIS HONOUR JUDGE EDMUNDS KC
(RECORDER OF THE ROYAL BOROUGH OF KENSINGTON AND CHELSEA)

____________________

REX

- v -

JONATHAN SHAUN SUMNER

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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

____________________

MR A REID appeared on behalf of the Applicant.
MS A POPE appeared on behalf of the Crown.

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HTML VERSION OF JUDGMENT
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Crown Copyright ©

    MR JUSTICE GARNHAM:

  1. On 29 August 2023 in the Crown Court at Chester the applicant, who was then aged 33, changed his pleas to guilty to counts of causing death by dangerous driving and causing serious injury by dangerous driving. On 10 November 2023, before His Honour Judge Simon Berkson at the same court, he was sentenced to a total of 8 years, 6 months' imprisonment. In respect of count 1 the applicant was also disqualified from driving for a period of 10 years, 7 months and until an extended retest was passed. We will turn to the issue of disqualification later in this judgment.
  2. The applicant now applies for leave to appeal against sentence, the Registrar having referred the application to the full court.
  3. The Facts

  4. At around 7.00 p.m. on 27 April 2020, George Wickham, who was then 18 years of age, and his mother Helen Wickham, who was 53, were cycling on country lanes near to their home in Brereton, Cheshire. They were regular cyclists and were familiar with the roads. They had been cycling in single file, it had been a sunny evening and the roads were quiet.
  5. The applicant was driving a large tractor, towing a field roller, some three metres wide. He was travelling in the same direction as George and Helen Wickham. The combined weight of the tractor and the trailer was 12 tonnes, and so the tractor and trailer unit were subject to a speed limit of 20 miles per hour.
  6. At around 7.25 pm, as George and Helen Wickham were cycling up a small incline on the A54 road, Mr Wickham heard the sound of a tractor approaching from behind him. He assumed that the tractor would pull around and overtake both he and his mother. The front part of factor went past the two of them in turn but the roller unit struck both of them, causing each to fall to the ground. Tragically, Helen Wickham was forced under the wheels of the roller unit.
  7. The applicant stopped a short distance ahead of the collision point, got out of the tractor and approached the two cyclists. George Wickham asked the applicant what he had been doing and the applicant replied, "I didn't see you." A number of people subsequently stopped at the scene to assist, but despite their efforts, sadly Mrs Wickham died at the scene. The emergency services were called. George Wickham had suffered an open fracture to his right femur in the collision and had to have surgery, during which a metal rod was inserted into his leg to stabilise the bone. A post-mortem examination confirmed that Helen Wickham had suffered catastrophic injuries as a result of being run over by the roller unit. The applicant was subsequently arrested for the offences.
  8. In his first interview, the applicant said that he had been blinded by the sun and only realised that he had been involved in the collision when he felt the roller unit move after he passed the cyclists. In further interviews, the applicant answered mainly "No comment" to questions asked by the police, but provided some responses in relation to the use of his mobile phone, which differed from earlier interviews. He said that the screen would have been visible to him as he drove and that he would have looked at it if a notification arrived. It subsequently transpired that the applicant's average speed during the course of this journey was some 31.3 miles an hour.
  9. The applicant was aged 33 at sentence. He was of previous good character. He pleaded guilty on the basis of a bases of plea. The basis of plea included the following:
  10. "As I passed through (a village called) Somerford. I accept that I picked up my mobile phone, opened the lock screen and used it. Just after leaving Somerford, prior to the accident occurring, I closed the lock screen on my phone and put it down. As I approached the scene of the accident, the sun was in my eyes. I couldn't see the road ahead, so I slowed down. I was going faster than 20 MPH as I left Somerford but believe I had slowed down to 20 MPH or less when the sun was in my eyes. The accident occurred as I was slowing down. I was not using my mobile phone at the time the accident happened."

    Sentencing

  11. In sentencing the applicant, the judge said this:
  12. "By your basis of plea you agree that you were driving the tractor unit at a speed in excess of the relevant speed limit of 20 miles per hour. It would seem on the calculations in this case to have been well in excess of the permitted speed. Further, you accept that you were using your mobile phone at a time approximate to the collision, (but) the court will sentence you on the basis that you were not using the phone at the time of the collision [...] You refer to the sun affecting your vision at the time of the collision. You clearly failed to properly address this common hazard. The sun visor had not been pulled down and you had not put your sunglasses on, which were present in the tractor. By your pleas of guilty you accept that the collision was your fault, you should have seen the two cyclists and had time and space to avoid this accident."

  13. The judge said he had read the Pre-sentence Report and a psychiatric report detailing the applicant's depression and PTSD following the incident and the autism spectrum disorder to which the applicant was subject. He noted the applicant's remorse and the fact that he had pleaded guilty some weeks before the date originally fixed for the trial. The judge imposed concurrent sentences for the two offences, uplifting the sentence for causing death to reflect the offence of causing serious injury by dangerous driving, and to reflect totality.
  14. The judge referred to the sentencing guidelines for both offences. Those guidelines were published after the maximum sentence for causing death by dangerous driving was increased to life imprisonment and the minimum period of obligatory disqualification was increased to five years. Pursuant to section 86 of the Police, Crimes, Sentencing and Courts Act 2022, those increases only apply where the offence was committed on or after 28 June 2022.
  15. That fact must be kept in mind, when applying the guidance to cases which pre-date the change. The guidelines distinguish cases solely according to the culpability of the driver, since the harm, namely death, is common to all cases to which the guidelines apply. Category A factors include cases where there was a "deliberate decision to ignore the rules of the road and disregard the risk of danger to others", a prolonged, persistent, deliberate course of dangerous driving, prolonged use of mobile phone, lack of attention to driving for substantial periods of time and speeds significantly in excess of speed limits or highly inappropriate for the prevailing road or weather conditions. Category B includes: "Use of mobile phone where not culpability A and driving at a speed that is inappropriate for the prevailing road or weather conditions, where not culpability A."
  16. For causing injury by dangerous driving the guidelines recognise two classes of harm. Category 1 covers particularly grave injury and Category B, all other cases. The culpability criteria are similar to those for causing death by dangerous driving.
  17. The judge decided that count 1 fell into category A, giving a starting point of 12 years and a range of 8 to 18 years; count 2 fell into category 2A, giving a starting of 3 years and a range of 2 to 4. Having allowed for aggravating and mitigation factors and giving credit of 15 per cent for plea, the judge imposed the total sentence of 8 years, 6 months on count 1, and 25 months, concurrent, on count 2. He disqualified the applicant from driving for 10 years, 7 months.
  18. Argument

  19. On behalf of the appellant, Mr Alistair Reid contends that the judge wrongly characterised both offences as falling into culpability category A, when they should have been categorised as category B. He said that the judge's starting point was, therefore, substantially higher than it should have been and that that resulted in a total sentence that was manifestly excessive. Mr Reid argues that the term "deliberate decision" amongst the factors indicative of level A culpability, signifies a specific and intentional choice to drive in a manner which the offender knows to be dangerous in the circumstances present at the time. He says that in Mr Sumner's case this factor was absent. He accepts that driving at excessive speed and the use of mobile telephone can both be deliberate acts, but they can still amount, he says, to Category B culpability factors. Where those factors fall on the scale of culpability will always be a question of interpretation and analysis when determining a sentence.
  20. Mr Reid says that notwithstanding the tragic consequences of his actions, the defendant did not make a deliberate decision to ignore the rules of the road and disregard the risk of dangers to others. He argues that in the applicant's case the "use" of his mobile telephone was a matter of being distracted by the screen illuminating upon receipt of an unread WhatsApp message. He accepts that the applicant exceeded the speed limit by approximately 10 miles an hour, and that he failed to ensure he had a clear view of the road and was not dazzled by the sun. He said that even considering these factors in combination with each other, the appropriate level of culpability to reflect the defendant's driving was Category B. Accordingly, he says that the judge's starting point for sentencing was substantially higher than it should have been, and after considering mitigation, applying credit for the guilty plea, the sentence of 8 years, 6 months' custody was manifestly excessive.
  21. Discussion

    Sentence

  22. The applicant was driving at more than 10 miles an hour over the relevant speed limit for his vehicle, namely 20 miles an hour. He failed to make appropriate adjustment for the bright sun, whether by pulling down his sun visor, putting on his sunglasses or slowing down to so slow a speed that he could cope with his very restricted vision. These were serious omissions which resulted in the most dreadful of accidents.
  23. We accept that they do not amount to a deliberate decision to ignore the rules of the road and that this was not a prolonged, persistent, deliberate course of dangerous driving. We also accept, as did the judge, that there was no use of a mobile phone at the critical time. Given their position riding their bicycles and the defendant's use of a tractor, George and Helen Wickham were properly to be regarded by the judge as vulnerable road users. The applicant was guilty of a lack of attention to driving for a substantial period, as is demonstrated by his complete failure to see either cyclist in the road in front of him at any point prior to his striking them. Furthermore, the facts of the incident demonstrate that his speed at more than 50 per cent greater than the speed limit for his vehicle, was significantly too great for the prevailing conditions, including the bright sun. In our judgment, count 1 fell either towards the very top of culpability B bracket or at the bottom end of category A.
  24. There was, however, substantial mitigation. The applicant had no previous offences and a good driving record. The judge accepted that he had shown genuine remorse. He had some mental health difficulties, including depression and PTSD, which whilst not being relevant to culpability, the judge rightly took into account.
  25. It is necessary to acknowledge that the maximum for causing death by dangerous driving had increased since this offending and that therefore the appropriate range should be reduced for offences committed prior to the coming into effect of that change. Reflecting that factor, it is our view that a sentence after trial of 10 years to reflect both counts would have been entirely appropriate. The judge correctly took count 1 as the lead offence, and had increased the sentence for that offence to reflect the fact that he was going to make the sentence on count 2 concurrent. It was then appropriate to make a reduction of 15 per cent to reflect the applicant's plea, making a final figure of 8 years, 6 months. We see no properly arguable grounds for appealing that sentence.
  26. Disqaulification

  27. Finally, we address the issue of disqualification.
  28. As the applicant committed the offences on 27 April 2020, the maximum sentence available for causing death by dangerous driving was 14 years' imprisonment. In the absence of special reasons, disqualification from driving for a period of not less than 2 years was obligatory for both count 1 and count 2 (See s34(4) of the Road Traffic Offenders Act 1988 (the RTOA), as it then applied). For both such offences the imposition of a further disqualification until passing an extended driving test was also required (s36 of RTOA). Where the offence of causing death by dangerous driving was committed before 28 June 2022 and a custodial sentence of 7 years or more was imposed on or after that date, as was the position in the present case, there was a conflict of authority as to whether release on licence should be granted on serving half or two-thirds of the custodial term. Furthermore, pursuant to section 35 RTOA, the release provisions determine the length of the extension period to be added to the discretionary period of disqualification, following R v Needham [2016] EWCA Crim 455.
  29. In Rex v Barnes, Berouain [2024] EWCA Crim 1548, this court held that when on or after 28 June 2022 a custodial sentence of 7 years or more was imposed for such an offence, then whenever that offence had been committed, the offender would be released on licence after they had served two-thirds of the sentence, pursuant to section 244ZA(4) of the Criminal Justice Act 2003. Accordingly, the extension period of disqualification was required to be two-thirds of the custodial term, pursuant to section 35A(4) of RTOA. At the sentencing hearing on 10 November 2023 the judge correctly announced that the applicant's release date, and therefore, the extension period of disqualification would be after he had served two-thirds of the custodial term. However, the judge appears to have miscalculated that extension and imposed a shorter, and therefore, unlawful extension of 5 years, 7 months. The correct period was 5 years, 8 months. That was added to a discretionary disqualification period of 5 years, which the judge selected having been told by counsel for the Crown that that was the minimum term required by statute.
  30. In fact, prosecution counsel was mistaken in that assertion. The minimum period prior to the amendments in 2023 was 2 years.
  31. The total disqualification imposed of 10 years and 7 months was imposed only for the offence of causing death by dangerous driving. Following correspondence from the DVLA, at a slip-rule hearing on 22 November 2023, for the offence of causing serious injury by dangerous driving (count 2), the judge imposed a disqualification of 7 years, 8 months, being a discretionary period of 2 years and an extension for the correct period of 5 years, 8 months. At that hearing the judge appears to have agreed with the statement made by counsel for the applicant that at the original sentencing hearing he had "imposed a 5-year disqualification extended by 5 years, 8 months to reflect the period the applicant will remain in custody". We do not accept that by those remarks the judge was tacitly or otherwise varying the extension period imposed in respect of the offence of causing death by dangerous driving to 5 years, 8 months.
  32. Accordingly, the disqualification for that offence would remain at 10 years and 7 months, as is recorded in the Crown Court records for the hearing and as was notified to the DVLA. It would follow that although the provision of section 35A(4) RTOA 1988 are mandatory, section 11(3) of the Criminal Appeal Act would preclude this court from correcting the position unless the overall effect of our decision was to impose a sentence which was no more severe than that imposed by the judge. In fact, we would go further. The judge adopted the discretionary figure of 5 years to add to what should have been the extension period of 5 years, 8 months because he was wrongly informed by counsel that that was the minimum required by statute. In fact, as we have said, that minimum was 2 years. Absent that error, we are confident the judge would have imposed a discretionary disqualification of 2 years, as he did eventually on count 2.
  33. In our judgment, that would have been the appropriate discretionary figure. The applicant drives as part of his work and we do not regard it as appropriate that the disqualification should continue beyond the period of his imprisonment except as mandated by statute, but we add that to the correct figure for the extension period, producing a total of 7 years, 8 months' disqualification.
  34. In those circumstances, to that limited extent, the appeal is allowed. The total period of qualification will now be 7 years, 8 months. Otherwise, the appeal is dismissed and the remainder of the sentence imposed is unchanged.
  35. __________
     

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