Neutral Citation Number:
[2014] EWCA Crim 1722
Case No:
2014/0893/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 30 July 2014
B e f o r e
:
LORD JUSTICE TREACY
MRS JUSTICE SIMLER DBE
HIS HONOUR JUDGE BEVAN QC
(Sitting as a Judge of the CACD)
Between:
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R E G I N A
v
MICHAEL DEWDNEY
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Computer Aided Transcript of the Stenograph Notes of
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Mr J Farmer
appeared on behalf of the
Applicant
J U D G M E N T
1.
LORD JUSTICE TREACY:
2.
This is a renewed application for leave to appeal against sentence after refusal by the single judge.
3.
The applicant pleaded guilty on 14th January 2014 at Norwich Crown Court to an offence of causing serious injury by dangerous driving. That is an offence contrary to
section 1
A of the
Road Traffic Act 1988
. This provision came into force in November 2012. The reference to serious injury is to physical harm which amounts to grievous bodily harm for the purposes of the Offences Against the Person Act.
4.
In addition, the applicant admitted driving with excess alcohol which had been committed to the Crown Court under the provisions of section 41.
5.
On 7th February 2014 he was sentenced to 32 months' imprisonment for the dangerous driving offence, with four months concurrent for the excess alcohol. He was disqualified from driving for three years and until an extended test is passed.
6.
The offence took place at about 8 am on Saturday 20th April 2013. The road concerned is a B road in a rural or semi-rural area. The applicant had been out all night at pubs or clubs or otherwise socialising. He had been drinking and was subsequently found to be one-and-a-half times the legal limit. In addition, blood analysis showed the presence of ecstasy, amphetamine and cannabis.
7.
At the time of the accident the applicant was driving his car with three passengers. The site of the accident was at a humpback bridge which had a straight approach to it. The applicant was driving fast as he approached the bridge. At least one passenger told him to slow down. The applicant in fact increased speed as he approached the bridge and made comments showing that he intended to take the bridge at speed. He ignored further warnings to slow down.
8.
The vehicle took off on the humpback bridge and when it regained contact with the road the applicant lost control and the vehicle somersaulted off the road before coming to rest in a field.
9.
There had been three bystanders who had witnessed the accident. It was obvious to them what was going to happen. Two of them estimated the applicant's speed as being in the region of 80 mph. Another put it at well in excess of 50 mph.
10.
The consequences for those in the vehicle were very severe but luckily not fatal. Amber Read, a female rear seat passenger who had to be freed from the vehicle by emergency services, sustained a brain haemorrhage, bilateral contusions of the lungs, several fractures of the thoracic spine with bleeding around the spine and heart. There was a large wound to her scalp which required stitching. Following surgery to her back, she has been left with rods permanently inserted. These are visible and have resulted in scarring. In addition, there were fractures of her clavicle and chest bones.
11.
Joseph Cork had one fractured and three crushed vertebrae and a fractured spine. He also had cuts to his head and both hands. Jason Chapman had an injury to his right shoulder blade and lost an area from his scalp which required stitching. He suffered back spasms for several weeks.
12.
All three of the passengers suffered continuing consequences from their injuries by the time of sentence, which was some nine months after the accident. Their victim statements show continuing pain, together with employment and psychological problems.
13.
The applicant himself was seriously injured. He suffered a fractured skull and a brain haemorrhage, a fractured jaw requiring plating and a fractured arm.
14.
There are matters about the applicant's previous history and/or background which are relevant. In 2006 when he was 14 he was convicted of dangerous driving. In the same year when he was 15 he was convicted of aggravated vehicle taking. By the time of this accident he had nine points on his licence. In 2010 he had used a mobile phone whilst driving and in 2012 he had used a vehicle without insurance.
15.
There was evidence that he had been using his mobile phone on the journey which led to this accident, albeit not in the immediate run up to it.
16.
His record also shows convictions for battery in 2009 and being drunk and disorderly in 2012. Both of those offences are drink related. There is also a 2012 conviction for possession of a class A drug.
17.
On the other side of the coin, the applicant had a satisfactory work record and some favourable character references. Given the location of the accident the road in question was not likely to be heavily used, although the applicant had no means of knowing what lay on the other side of a steep humpback bridge.
18.
For the applicant it is submitted that this was not a sustained piece of dangerous driving. Whilst the level of alcohol was unlawful it was not excessive and whilst the injuries caused to two of the passengers could be described as involving serious physical injury, it was possible to imagine cases where non-fatal catastrophic injury might be caused.
19.
Accordingly, it was submitted by Mr Farmer that this was not the most serious case of its kind and that a starting point of four years and six months, which is close to the maximum of five years, was wrong in principle.
20.
This relatively new offence reflected a decision by Parliament to meet a gap identified by both in judgments of this court and in public concern between the maximum sentence of two years for dangerous driving and the maximum sentence of 14 years for causing death by dangerous driving. It had been felt for many years that legislation failed to provide for circumstances in which not only had the driving been of a character likely to cause injury to life and limb, but had actually caused serious and significant injury to others. The result has been this new offence carrying a maximum of five years.
21.
There is of course no sentencing guideline in place for this offence. However, there is a guideline of the Sentencing Guidelines Council relating to causing death by dangerous driving. We think it helpful to have regard to that guideline in relation to the levels of offending identified there.
22.
The least serious, Level 3, is driving creating a significant risk of danger. Examples given are of driving above the speed limit, driving when deprived of adequate sleep or rest, a brief but obvious danger arising from a seriously dangerous manoeuvre and driving whilst avoidably distracted.
23.
Level 2 is described as driving that created a substantial risk of danger. Examples given are greatly excessive speed, gross avoidable distraction such as reading or texting over a period of time, and driving whilst impaired as a result of alcohol or drugs.
24.
Level 1 is described as covering the most serious offences, encompassing driving that involves a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others. Examples given are a prolonged, persistent and deliberate course of very bad driving, the consumption of substantial amounts of alcohol or drugs leading to gross impairment, or a group of factors which in smaller number would place the offence in Level 2.
25.
The guideline recognises that the presence of aggravating factors or examples of seriousness will increase the starting point within a sentence range and may justify moving to the next level of seriousness.
26.
Given the level of the statutory maximum for the
section 1
A offence compared to that for the simple offence of dangerous driving, there will of necessity be a degree of compression in the sentences available to the court to reflect different types of dangerous driving and its consequences in the
section 1
A offence.
27.
It seems to us therefore that it is not a helpful exercise to indulge in considering the very worst imaginable type of case which would attract a sentence at the maximum. A more realistic approach is to identify a broader band of conduct which will represent the most serious offending within the ambit of the offence.
28.
It seems to us that whilst it might be arguable that the applicant's dangerous driving falls into the upper ranges of Level 2 rather than within Level 1, given the absence of prolonged very bad driving and gross impairment through the consumption of alcohol and/or drugs, the fact remains that this applicant did take a deliberate decision to ignore the rules of road safety in circumstances which inevitably caused very considerable danger to others. There may be a respectable argument that the driving did indeed fall within Level 1.
29.
However, even if the driving falls within the upper ranges of Level 2, there are a number of important aggravating factors. First, previous convictions for motoring offences, especially those involving bad driving. Secondly, and importantly in the context of an offence predicated upon the causing of serious injury to another, two of the passengers were seriously injured with continuing consequences for them and a third was significantly injured.
30.
Moreover, the offence was committed whilst the ability to drive was impaired not only by drink, but also by the consumption of drugs in circumstances where the offender had been up all night.
31.
In addition, the applicant had ignored warnings that he should moderate his speed and had responded to them by doing the very opposite. He accelerated harder as he approached the humpback bridge. This was deliberate risk-taking at high speed in very dangerous circumstances. We regard the culpability of the applicant in those circumstances as being extremely high, and within the context of this offence the harm done by his actions is again very high.
32.
In those circumstances, we consider that the judge was entitled to regard this offence as falling within the range of the most serious offences of this kind. Although the starting point of four years and six months was undoubtedly severe, we consider that it was deservedly severe. The judge then made some allowance for the applicant's personal mitigation and full allowance for early guilty pleas.
33.
In the circumstances the resultant sentence and disqualification were not manifestly excessive and this renewed application is refused.