Disley, R. v

MR JUSTICE GREEN: On 23rd October 2017 in the Crown Court at Caernarfon the appellant pleaded guilty to four counts of causing serious injury by dangerous driving (count 1) and driving a motor vehicle whilst unfit through three different drugs (counts 2 - 4). He was sentenced on count 1 to 2 years' imprisonment and to sentences of 4 months on the other counts concurrent. He was disqualified from driving for a period of 4 years and until an extended re-test was passed.

The facts may be summarised as follows. On 25th February 2017, at 9.15 am the appellant was travelling northwest on the A5 driving an Astra convertible. The weather was poor. It was wet and it was windy. The complainant was driving in the opposite direction in a Toyota Yaris. He saw a car in front of him in his lane. The car was on the wrong side of the road. The complainant had no time to react and there was a head-on collision. He remembered very little after the incident and subsequently he had to be cut out of his car. He was initially totally confused as to what was going on but he felt a huge amount of pain as the roof of the car was cut away and his leg, which had been trapped, was released.

He was taken to hospital where he was transferred to a major trauma centre. He had two broken ribs, a fractured femur, a fractured pelvis, a fractured hip socket, lacerations to his left knee, laceration to his liver and contusions to his lungs and pancreas. He was an in-patient for nearly 2 weeks and there were subsequently complications.

A passing police community support officer and a vehicle which contained Royal Air Force Mountain Rescue personnel were first to arrive at the scene of the collision. One of the Air Force medics spoke to the appellant who was at that point in time outside of his car. He was bleeding from a gash to his arm. He gave a limited response to questions about what had occurred. When asked what had caused the accident he said: "Hell and the devil". When paramedics asked him to get into the ambulance he made a brief attempt to run away but he then stopped of his own accord and sat on a wall. He was coached into the ambulance where he became distressed.

Blood samples were taken from him at the hospital at 2.10 pm, the drugs reading in relation to cannabis were 2.2 micrograms, with the limit being 2, 41 micrograms of cocaine with the legal limit being 10, and 896 micrograms BZE with the legal limit being 50. He was significantly affected by drug consumption.

The appellant was interviewed. He confirmed that he had been celebrating his birthday. He had taken drugs from friends because, he said, he disapproved and then put them in his car. He was annoyed with his friends so he left to drive home. He said he was driving at approximately 40 miles per hour. He saw the car coming in the opposite direction and believed that the car was in fact upon his side of the road. The collision investigator report made clear that the complainant's car was at all times on the correct side of the road and the collision happened squarely within that side of the road - this was of course the wrong side of the road for the appellant.

The appellant explained in interview that he had attempted to swerve but he had been unable to avoid a collision, he had however managed to get out of the car. He understood that the other driver was injured and he said that he had taken the drugs at that point in time.

A pre-sentence report dated 14th November 2017 recorded that the appellant regretted his actions and that he showed genuine remorse for his conduct. He felt devastated as a result of his offending behaviour. He accepted responsibility. Committing these offences had, he explained, been a wake-up call for him and he could see that he needed help and assistance with his misuse of drugs.

The author of the report concluded that he presented a medium risk of re-offending based on statistical factors and a medium risk of harm to the general public. He was assessed as suitable for a community based sentence with drug requirements for 12 months, an accredited programme requirement for 35 days and unpaid work requirements.

The judge disagreed. He concluded that a custodial sentence was appropriate and he made the following main points. The appellant fell to be sentenced primarily for the offence of causing serious injury by dangerous driving and also three offences of driving while under the influence of three separate drugs. The court was aware of the victim impact statement. The complainant had written to the judge. He had been magnanimous, he had accepted as genuine the apology which the appellant had tendered.

In his police interview however the appellant gave an account which blamed the other driver, saying that the other driver was on his side of the road. This was a lie. This was compounded by the allegation that the other driver had not been wearing a seat belt. He gave an untruthful account of consuming the drugs in his car to avoid detection post-accident.

There were aggravating features caused by his consumption of drugs and the serious injuries inflicted on the complainant. He was 27 years of age at the time of sentence. He had previous convictions. He had been given a suspended sentence of 6 months suspended for 24 months which came to an end in May 2017. His current offences were committed during the period of that suspended sentence. In addition, he had previously been convicted of driving with excess alcohol on 10th October 2016. He had not been disqualified on that occasion.

As for mitigation, the judge was impressed by the fact that the appellant had pleaded guilty and he would receive maximum credit for that. There was genuine remorse, and he had made a direct apology to the complainant. He had a good work ethic. He acknowledged the effect of drug taking. He had no previous experience of custody.

The judge concluded that no action would be taken on the breach of the suspended sentenced. The punishment imposed, which was a period of custody was, in the judge's view, sufficient. In any event the suspended sentence had, at the date of sentence for the index offence, come to an end and the court had regard to totality. The judge concluded that the starting point was one of 3 years' imprisonment. The judge then reduced that to take account of mitigation including the guilty plea. This led to a sentence of 2 years' imprisonment. The judge imposed concurrent sentences of 4 months with respect to the three related drugs matters. The total was therefore one of 2 years' imprisonment.

Mr Roberts, on behalf of the appellant, submits that the sentence imposed was manifestly excessive. The actual dangerous driving was a momentary loss of control and not aggravated by factors such as racing or evasion of the police or a flagrant disregard for other road users. The consumption of the drugs had been the previous night and the appellant drove under the misguided belief that he was safe. The victim's injuries though serious were not life changing. The judge failed to give adequate credit for the appellant's remorse or the attempts to rehabilitate himself. The starting point was, in all the circumstances, too high.

We can commend the appellant for his efforts to address his drug problems. But we are unable, on this appeal, to accept these submissions. The judge addressed himself to all relevant factors. He did not omit anything material and he did not take into consideration an irrelevant matter. The only question is therefore whether the judge acted within his discretion. He had regard to totality. He balanced mitigating and aggravating features.

When we stand back and examine this case from the perspective of totality this was a serious offence. The appellant was mal-affected by drugs. It is pure luck that he did not come to be tried for death for dangerous driving. It is true that the injuries to the victim could have been worse but they were nonetheless serious. The appellant had relevant previous convictions. On the plus side he did upon reflection show genuine remorse. Ultimately we consider that this sentence was squarely within the discretion of the judge. There is no basis upon which we can properly interfere.

We turn to various matters which the Registrar has brought to our attention about the sentence imposed by the judge. We can deal with these briefly. The first concerns the disqualification order. Since a custodial sentence was imposed in addition to disqualification then pursuant to section 35A Road Traffic Act 1988 the entire period of disqualification should have been ordered to be served following on from release from custody. The registrar observes that the judge did not make clear what the starting point for the disqualification period was, nor did he explain whether the period of disqualification was extended in any way or as to the offence to which it applied. Nor did he follow the guidance set out by the Court of Appeal in R v Needham & Ors [2016] EWCA Crim 455, where the court emphasised the need for clarity and precision in setting out these matters.

In these circumstances, since we have dismissed the appeal we need to clarify the sentence of the judge in relation to disqualification so that it can be properly applied. In our judgment, we take the view that the judge was seeking to impose 4 years' disqualification as a figure to reflect the totality of the offending and the sentence to be imposed.

We take the view that we may, somewhat technically, repair the defect in the judge's analysis in the following way. In relation to count 1 we impose disqualification for 3 years extended pursuant to section 35A of the Road Traffic Act by a period of 12 months. We leave the other sentences untouched.

The next matter raised by the Registrar is that it was impermissible for the judge to make no order with respect to the breach of the suspended sentence order once the offender was before the court for being in breach. In those circumstances a court is under a duty to deal with the offender in one of the ways listed in paragraph 8 of schedule 12 to the Criminal Justice Act 2003. This can include activating the sentence in full or in part. If the court considers that it would be just to do so it must order the payment of a fine or must impose more onerous community requirements or extend the supervision or operational periods. It is apparent from the judge's ruling that he wished to impose no additional penalty for the breach of the suspended order because in substance the sentence of 2 years' custody was sufficient from the perspective of totality.

To reflect the law, but also the judge's intention, we conclude that we should activate the suspended sentenced of 8 months for the affray but we direct that it be concurrent to the sentence of 2 years' imprisonment for the index offence. To that extent only the appeal is permitted.

MR JUSTICE GREEN: In this case we gave judgment earlier this morning. In that judgment we referred to the appellant as having been subject to an 8 month suspended sentence. In fact this was in error; the suspended sentence was of 6 months suspended for 24 months. Accordingly we correct the previous judgment; the 6 month sentence is activated but it is to be served concurrent with the other and longer sentence. Accordingly although it makes no difference to the total sentence it is proper that that correction be recorded.