Larke, R v

LORD JUSTICE SCOTT BAKER: Ann Larke is aged 74, and on 9 January 2009 she pleaded guilty in the Magistrates' Court to two offences of causing death by careless driving, contrary to section 2B of the Road Traffic Act 1988 (as amended). She was committed for sentence to the Crown Court, and on 5 February of this year, was sentenced at Southampton by HHJ Hope to two years' imprisonment on each count concurrently, and disqualified from driving until she takes an extended re-test. She appeals against that sentence by the leave of the single judge.

The facts can be quite shortly stated. The tragic incident occurred on the A326 on Saturday morning of 23 August of last year, when the two deceased, 29 year-old Terry Stubbs and his 11 year-old step daughter Shannon were on a motorbike that collided with the appellant's Toyota Corolla. The appellant had parked her car in a lay-by and taken her dog for a walk. She returned to the car and endeavoured to perform a U-turn out of the lay-by, pulling out with the intention of going back in the direction from which she had come. This was a manoeuvre that she had carried out on many previous occasions. It was not a manoeuvre that was prohibited at the time, but it was obviously a manoeuvre which, if it was going to be carried out, required a very careful look in both directions before doing so.

As she pulled out, she pulled into the path of a Honda Civic. The driver of the Honda managed to brake just in time and swerved to the left to avoid colliding with the appellant's vehicle. However, the deceased on the motorbike behind the Honda did not have the time or opportunity to avoid a collision because the rider was left with nowhere to go. He hit the appellant's Toyota, and in the impact, the rider, Mr Stubbs, and Shannon were thrown from the bike and tragically both died at the scene. At the time of the collision, the weather was fine and dry and it was daylight. There were no contributory defects found in any of the vehicles involved. The speed limit on the road was the national one of 60 miles per hour, and both the Honda and the motorbike were indisputably travelling within that limit.

The appellant has an unblemished driving record going back to 1959. A pre-sentence report described her as a divorced woman living on her own in a bungalow that she owned in Hythe. Until she retired in 2005 she had worked with adults with learning disabilities. She spent some time driving them about in a minibus. Since retiring, she had done some voluntary work, and with three sons and five grandchildren she was a part of a very close-knit family.

She described her act of pulling out from the lay-by as a terrible misjudgment on her part. And so it was. She could offer no further insight into why the accident occurred. She knew the road well, and said that she had completed the same manoeuvre successfully on many previous occasions.

The author of the pre-sentence report describes her as genuinely devastated by what she has done, and that she accepts responsibility and expresses great remorse for causing the terrible collision which resulted in the death of two young people. The author of the pre-sentence report points out that although the appellant's lack of concentration and carelessness on that day had tragic consequences it was not an act of malice. She did not set out to drive carelessly. Rather, what the appellant did was an act of omission in failing to concentrate properly and to ensure that the main road was clear. Nevertheless, it was, in this court's judgment, carelessness of a high order, approaching, as the judge found, dangerous driving, where the standard of driving falls far below that of a reasonably competent driver.

Motor vehicles can, as this case tragically shows, be lethal instruments. It behoves anyone who drives a car, whatever their age and history, to ensure that they concentrate and are careful. Lord Devlin said half a century ago that part of the purpose of punishment is the emphatic denunciation by the community of a crime. Parliament has recently decided that when someone is killed as a result of careless driving, that significantly increases the appropriate penalty. The maximum sentence for causing death by careless driving is five years' imprisonment. Prior to 4 August 2008, when the new provision came into force, careless driving, whatever the consequences, did not attract the possibility of a prison sentence.

In this case, tragically, there were two deaths. As the Sentencing Guidelines Council has pointed out, where more than one person is killed, that will generally aggravate the seriousness of the offence because of the increase in harm.

Mr Ross, who has appeared for the appellant, points out that that is especially so in cases where death is foreseeable, and in particular where it is foreseeable to the perpetrator of the offence that more than one person might be killed, but that that was not the position in the present case.

The Sentencing Guidelines Council have divided the offence of causing death by careless driving into three categories, the most serious of which is where the offence is of careless or inconsiderate driving falling not far short of dangerous driving, which is the category into which the judge found that this case fell. Here the starting point is 15 months' custody, and the range, 36 weeks at the lower end to three years at the upper end. The judge put the case into this category, although it can be pointed out that the carelessness was momentary rather than continuing. But, on the other hand, there were two deaths.

The figures that we have mentioned from the Sentencing Guidelines Council's advice relates to the penalties to be imposed following conviction after a plea of not guilty. In this case, there was a plea of guilty at the earliest opportunity, considerable remorse on the appellant's part and an impeccable driving history. The appellant's age, as the judge accepted, was likely to make prison particularly harsh for her. We have no up-to-date prison report, but her counsel tells us that she is coping. There was, therefore, in the present case considerable mitigation to be balanced against what this court sees as the one aggravating feature of the offence, namely that there was a second death.

These cases are not only tragic, but present very, very difficult sentencing problems for the judge who is called upon to impose a sentence. We have seen, as did the judge, the victim impact statements from the deceased's family, and one cannot help but be greatly moved by them.

We have come to the conclusion that the sentence that was imposed by the judge, which was right at the upper end of the bracket, being one of two years following a plea of guilty (that is the bracket for the most serious category of causing death by careless driving) was, in the circumstances, manifestly excessive.

We have considered whether any assistance might be found in authorities. There are no authorities as yet from this court in relation to this offence, at least as far as we and counsel are aware, and it seems to us that the penalties imposed for other offences are in the circumstances only of limited assistance, if any, and we have to concentrate on the advice given by the Sentencing Guidelines Council. We think that two years' immediate custody was outside the appropriate range of sentence in this case. In our view, the dreadful consequences of the appellant's carelessness should be marked by a sentence of imprisonment, and that that is in accordance with the view taken by Parliament in enacting this new offence. But in the particular circumstances, bearing in mind all the mitigation, a suspended sentence would have been appropriate.

In our judgment, the right sentence in this case is one of 39 weeks' imprisonment, suspended for a period of 12 months. The order of the court about taking an extended driving test before being permitted to have a licence again will stand, although we note that the appellant has said that she never intends to drive a motor vehicle again.

Accordingly, the appeal will be allowed to this extent.

We are told that there has to be some form of requirement under the legislation. She has to live at her address, which is to be notified. I take it, it will be the same address she will be living at as before she was sentenced on 5 February?

MR ROSS: Yes. My Lord, I am grateful. Can I just point out one thing? I think my Lord in my Lord's judgment said "5 October", rather than "5 February".

LORD JUSTICE SCOTT BAKER: I meant to say "5 February".

MR ROSS: And would the court consider an appellant's costs order in this case?

LORD JUSTICE SCOTT BAKER: Yes. Thank you.

MR ROSS: I am very grateful.

LORD JUSTICE SCOTT BAKER: And the residence requirement will run for the period of the suspended sentence.

Thank you both very much for your assistance.