Butt, R. v

MR JUSTICE LEVESON: On 3rd August 2004, in the Crown Court at Blackfriars before His Honour Judge Pearl, this appellant pleaded guilty to dangerous driving and on 31st August was sentenced to a term of eighteen months' imprisonment for that offence. He was disqualified from driving for two years and thereafter ordered to take an extended retest. He now appeals against sentence by leave of the single judge.

The facts of this offence are, of course, all important. At 10.30 pm on 22nd September 2004 two police officers on mobile patrol in a marked police car were driving up North End Road in west London when they came across a Nissan Micra motorcar stationary in the middle of the road. Smoke was coming out of the bonnet and they thought that the car had broken down. They looked into the car and saw the appellant in the driver's seat and a female in a rear passenger seat. Both appeared to be drunk, and the appellant was slumped in the driver's seat with what is described as a "sneer-like grin" on his face. His eyes were bloodshot and glazed, and he appeared to be trying to get the car into gear. As he was doing so, he was revving the engine so much that smoke continued to come from underneath the bonnet. One of the officers went to speak to him to ask him to turn the engine off and motioned with his hand to turn the ignition off. The appellant looked directly at him and continued to rev the engine. The officer continued to knock on the window and tried to open the passenger door but it was locked. By this stage the officer had been joined by his colleague. They both indicated to the appellant that he should turn the engine off. He continued to rev the engine and managed to get the car into gear. With the police officers by the side of the car, he then sped off down the road. So the officers were required to run back to their vehicle and set off in pursuit, after switching on police lights.

The appellant then drove down a number of residential roads at speed, including going down the wrong way down a one-way street, before he reached the junction of the A4, along which he proceeded to drive the wrong way down the dual carriageway, which was then restricted to one lane because of roadworks. Oncoming traffic had to take evasive action. He crashed into two cars, bringing his own car to a stop.

The officers arrived at the scene and found the appellant was injured as a result of the collision. The drivers of the two cars were unhurt. An ambulance was summoned and the appellant, who was bleeding from a facial injury, was taken to hospital. His passenger had a nose bleed.

A sample of his blood was taken some two-and-a-half hours after the accident. It contained no less than 78 milligrams of alcohol per 100 millilitres of blood, the legal limit being 80. A back calculation was carried out. The scientist estimated that at the time of the accident the most likely figure would have been 120 milligrams of alcohol in a 100 millilitres of blood, that is 50% over the limit. Traces of heroin and Temazepam were also found in his blood. Thus this man, with excess alcohol and affected both by heroin and prescription drugs, was responsible for this piece of driving in this car.

At the time of this incident the appellant was just short of 30 years of age. He had appeared before the court on a number of occasions, including once for driving with excess alcohol, for which he was sentenced to a six-month community rehabilitation order and disqualified from driving for a period of twelve months on 23rd December 2003.

A pre-sentence report recommended a drug treatment and testing order if a non-custodial disposal was considered appropriate. There was, it reported, an intermediate to high risk of his reoffending unless he addressed his addiction to drugs.

A pre-appeal report, as directed by the single judge, reveals that he has sought to address this addiction.

The learned judge observed that this was as dangerous a piece of driving as could be created. It was a miracle that nobody was injured. His recollection of events, said the judge, was less than clear because of his drink and drugs. In the circumstances the learned judge took a starting point of the maximum for dangerous driving and discounted it for his plea of guilty to one of eighteen months.

In his grounds of appeal, Mr Myers argued that the learned judge was wrong to take the maximum sentence for dangerous driving, that is to say two years' imprisonment, as the starting point for sentence. He argues, both on paper and with tenacity and skill before this court, that the authorities are replete with examples of cases of far greater gravity, including speeds in excess of 100 mph, prolonged driving over many miles, deliberate infliction of damage (often to police cars), deliberate driving with the intention of causing injury. We are content to take these examples in turn. Specific circumstances will always define gravity. Thus speeding, even well in excess of 100 mph, if, for, example on a quite motorway is not in the same division of danger as driving up the wrong side of the A4. Further, this driving was indeed prolonged in the sense that this was not momentary dangerous driving, but rather the deliberate embarking upon a course of escape from the police in circumstances when the driver had absolutely no right to be anywhere near the steering wheel of a motorcar. Deliberate infliction of damage could properly generate other charges as could, and indeed inevitably would, deliberate driving with the intention of causing injury.

Furthermore, this argument as to the circumstances in which it is appropriate to use the maximum as a starting point does not reflect the long-standing approach adopted by this court in cases of this nature. In R v Amber and Hargreaves, decided on 24th November 1975 and reported in Current Sentencing Practice at paragraph A1-4C01, the court was concerned with offences of corruption in relation to the bribery of prison officers. Lawton LJ observed:

Having regard to the passage of time, this enunciation of principles bears repetition. In this case, as the learned judge observed, it was providential that no one was seriously hurt. Had someone been killed (as was by no means unlikely), a sentence in many years would inevitably have resulted. It is not a reflection on the quality of the driving that such did not happen.

We recognise that the sentence for dangerous driving on its own is now out of line with the sentence for causing death by dangerous driving; when the two-year maximum for dangerous driving was set by Parliament, the maximum for causing death by dangerous driving was five years, almost one-third of the maximum now available of fourteen years. It may be that Parliament could legitimately review this maximum but, as it is, we do not condemn the approach of the learned judge. This offence is very considerably aggravated by the combination of alcohol, heroin and prescription drugs. Having regard to all the circumstances, the sentence in the round, taken together is neither manifestly excessive nor wrong in principle. This appeal is dismissed.

LORD JUSTICE MOORE-BICK: The appeal will be dismissed. There will be no recovery of defence costs order.