R v Ruben Matthew Marks

The appellant appeals against sentence by limited leave of the single judge, with leave being limited to the unlawful element of the sentence.

On 14 October 2022, the appellant pleaded guilty to a count of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988.

Subsequently, on 29 June 2023, he was convicted of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861.

He was sentenced to 9 years and 3 months’ imprisonment for the offence of causing grievous bodily harm. No separate penalty was imposed in respect of the driving offence. The appellant was also disqualified from driving and an extended re-test was ordered.

Given the narrow issue raised by the appeal, it is not necessary for us to recount the facts, which are summarised in the note prepared by the Court of Appeal Office. In short summary, the appellant drove at speed at the victim, causing a bleed on the brain, a significant wound to his left leg which required a skin graft and fractures to his right pelvis and left elbow.

During the sentencing hearing, the judge referred to the case of R v Butler [2023] EWCA Crim 676 and suggested that it was preferable to order the lesser count to lie on the file than impose no separate penalty. However, prosecution counsel raised the issue of the driving disqualification, suggesting the disqualification may only be available if the count was not ordered to lie on the file. After further discussion, the judge imposed no separate penalty in relation to the driving offence.

The cases of R v Butler (citation as above), referred to by the judge during the hearing, and R v Ismail [2019] EWCA Crim 290, make clear that, where a defendant is charged with alternative offences and in circumstances where they plead guilty to the lesser offence but are subsequently convicted of the more serious offence, the proper approach is for the court to order the lesser offence to lie on the file rather than to impose no separate penalty on that offence. This is because a guilty plea does not amount to a conviction unless and until a sentence is passed. The practice therefore avoids a defendant being convicted of two alternative offences for the same criminal conduct. However, a decision to impose no separate penalty for a particular offence represents the court’s sentence for that offence and gives rise to an additional conviction.

In these circumstances, we quash the sentence of no separate penalty for the count of causing serious injury by dangerous driving and direct that the count lie on the file. The disqualification order remains, but is to be treated as imposed by the Court pursuant to section 164 of the Sentencing Act 2020.  The order for an extended re-test is quashed on the basis it applies only to the obligatory disqualification which was imposed under section 36 of the Road Traffic Offenders Act 1988 in relation to the count of dangerous driving, which is now to lie on file.