Ilyas, R v

MR JUSTICE GOOSE: On 9 February 2018, the appellant, Yasir Ilyas, was sentenced in the Crown Court at Aylesbury by Her Honour Judge Tulk after he was committed for sentence by the Magistrates' Court following pleas of guilty. The court imposed 8 months' detention in a Young Offender Institution for an offence of dangerous driving, contrary to section 2 of the Road Traffic Act 1988. For offences of using a motor vehicle on a road or a public place without third party insurance, contrary to section 143 of the Road Traffic Act 1988, and for driving otherwise than in accordance with a licence, contrary to section 87 of the Road Traffic Act 1988, no separate penalty was imposed and his licence was endorsed. A further offence of failing to stop a mechanically propelled vehicle when required by a constable in uniform, contrary to section 163(3) of the Road Traffic Act 1988, was remitted back to the Magistrates' Court. The appellant was also disqualified from driving for a period of 28 months under section 35A of the Road Traffic Offenders Act 1988 and ordered to take an extended retest before being permitted to drive after his disqualification.

The appellant appeals his sentence with leave from the single judge on two grounds. Firstly, that the judge took insufficient account of the appellant's personal mitigation when passing sentence. Secondly, the judge was wrong or it was manifestly excessive not to suspend any custodial sentence.

On 26 November 2017, at about 8.00 pm, the appellant was driving a red Honda vehicle in Wycombe. Police recognised the vehicle from a previous incident and began to follow the appellant, activating the lights on the police car. They signalled to the appellant to stop but he continued driving. The appellant whilst being followed by the police increased his speed, driving at 50 miles per hour in a residential area with a speed limit of 30 miles per hour. The police followed at a safe distance whilst the appellant drove dangerously, further increasing his speed. When he reached a roundabout controlled by traffic lights which were showing red against the appellant, he continued to drive and ignored the signal. He pulled onto the roundabout, into the path of a Vauxhall Astra, causing a collision and bruising injuries to the occupants of that vehicle. Due to the momentum of the appellant's vehicle a second collision occurred with another vehicle being driven by a taxi driver with a passenger. When the three vehicles came to a stop the appellant climbed out of the passenger side window of his vehicle and ran off, being pursued by the police until he was detained shortly afterwards. Damage to the Astra was caused to a value of £8,000. It is unclear what additional damage was caused to the taxi vehicle.

In sentencing the appellant the judge correctly stated that there is no guideline from the Sentencing Council for dangerous driving. The judge identified the culpability factors: the appellant was a disqualified driver without a licence or insurance, he had bought the vehicle to drive to college after he had been disqualified and he was seeking to avoid a pursuing police vehicle. The harm factors were also identified: the bruising and pain caused to the occupants of the Astra and the £8,000 of damage to that vehicle.

The judge imposed a sentence which took into account the offences of driving without insurance and driving without a licence to aggregate the sentence to one of 8 months in a Young Offender Institution. The judge then stated at page 3D of her sentencing remarks:

The judge then imposed a custodial sentence and disqualification order.

It is submitted on behalf of the appellant that the judge failed to take into account or give sufficient weight to the appellant's personal circumstances, in particular that he had no previous convictions. Although he had nine penalty points for three occasions of speeding, which had caused him to lose his driving licence, it was submitted that those three occasions occurred in a short period of time in a single journey. Further, the appellant was a university student in the course of his education, he lived at home with his parents but after losing his licence found his journey too long on public transport, which made him late for his lectures. Further, the content of the pre-sentence report dated 16 January 2018 proposed a suspended sentence order with unpaid work.

All of these factors, it is submitted, should have led the judge to suspend any sentence of imprisonment imposed. It is accepted by the appellant that the custodial term of 8 months was an objectively appropriate length. Alternatively, a shorter custodial term might have been imposed which would have allowed the appellant to continue with his studies.

We are satisfied that the terms of detention of 8 months was correct in the circumstances of this offence of dangerous driving. This is properly conceded on behalf of the appellant. However, we do not consider that the judge used the correct approach to the decision upon whether to suspend the sentence of detention. Indeed, the judge ought to have considered the Sentencing Council guideline on Imposition of Community and Custodial Sentences Definitive Guideline given that the detention period to be imposed was 8 months. The guideline for the imposition of custodial sentences at page 7 requires the court to consider four steps. Firstly, has the custody threshold been passed? Secondly, is it unavoidable that a sentence of imprisonment be imposed? Thirdly, what is the shortest term commensurate with the seriousness of the offence? Fourthly, can the sentence be suspended?

Whilst the judge clearly considered the first three steps, she did not appear to give full account to the fourth step. The judge emphasised that the offence was deliberate and cynical and that both punishment and deterrence were important considerations in her decision not to suspend the sentence.

The factors to be weighed in deciding whether it is possible to suspend the sentence are set out on page 8 of the guidelines. Of those factors which indicate that it would not be appropriate to suspend a custodial sentence only one could be said to apply, namely that punishment can only be achieved by immediate custody. Of those factors which indicate that it may be appropriate to suspend the custodial sentence two factors can be said to apply, namely a realistic prospect of rehabilitation and strong personal mitigation.

We are satisfied that had the judge correctly considered the definitive guideline for the imposition of community and custodial sentences, she ought to have suspended the period of detention. Also consistent with the guidance, the custodial term should usually be for the same term as would have been imposed in an immediate sentence, namely 8 months' detention. In this case, however, the appellant has now served the equivalent of a 3-month sentence of detention.

Accordingly, we are satisfied that the sentence of detention of 8 months in a Young Offender Institution was manifestly excessive in that the period of detention should have been suspended when applying the Sentencing Council guideline.

Accordingly, we allow this appeal against sentence, we quash the sentence of 8 months' detention and impose a suspended sentence order of 5 months' detention in a Young Offender Institution suspended for 12 months.

Whilst the pre-sentence report had made a suggestion of a requirement for unpaid work, in the circumstances where the appellant has now served part of his period of detention we do not impose any further requirement.

MR JUSTICE SIMON: Mr Ilyas, your appeal has been allowed. I hope you understand. You will be released when a formal order comes from the Court of Appeal. You must not drive, you understand, for a period of 28 months and until you have passed an extended retest. You must understand that very clearly.