R v Robert Harrison

MR JUSTICE GOOSE: This is a renewed application for permission to appeal sentence by Robert Harrison, who is now aged 39, after leave was refused by the single judge.

On 14 June 2023, in the Crown Court at Chelmsford, the applicant was convicted of causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988. On 20 July 2023, the trial judge Her Honour Judge Loram KC, sentenced the applicant to 7 years’ imprisonment. He was also disqualified from driving for 8 years and 6 months, comprised of an obligatory disqualification period of 5 years with an extension period of 3 years and 8 months, being pursuant to section 35A of the Road Traffic Offenders Act 1988. The judge reduced that period of disqualification by a period of 7 months and 7 days, the intention being to give credit to the applicant for the period of time he had been subject of an order for Interim Disqualification. We shall return to the issue of disqualification later.

During the afternoon of 23 September 2021, at 1.45 pm, the applicant was driving a 7.5 tonne box lorry along the A1060 Bishops Stortford Road, towards Chelmsford in Essex. The applicant was a professional driver. During the journey the applicant’s vehicle reached Boyton Cross, Roxwell, where the road comprised a double-bend, first turning to the right and then to the left. On approach there were road signs on both sides warning traffic of the road layout. In addition, there were warnings on the road surface. The maximum speed permitted in this section was 40 miles per hour.

The applicant had been suffering from poor sleep in the days leading up to the accident. He was aware of the problem, having discussed it with his landlady, who had expressed her concern. Nevertheless, the applicant approached the scene driving at 55 miles per hour, which speed was established from the applicant’s tachograph within his commercial vehicle. The applicant failed to react to the right-hand bend, which caused his vehicle to mount the nearside kerb. He attempted to regain control of the vehicle and steered it back onto the road. However, the vehicle was out of control and swerved into the path of oncoming traffic. In the opposite direction the deceased, Mr Tristan Baker, who was with his 11-year-old stepdaughter, was driving a Ford Focus vehicle. The applicant’s heavy truck collided with the Ford Focus front offside to front offside. The result was a substantial collision in which both vehicles were considerably damaged. The deceased’s vehicle had its entire offside ripped off. The deceased suffered catastrophic injuries and died at the scene.

The deceased’s stepdaughter, whilst fortunately not suffering physical injuries, has been left with very considerable psychological effect which continue and will do so for the future. In victim personal statements taken into account by the judge on sentence, the profound effect upon his stepdaughter, her sister and their mother was obvious and long standing.

The applicant was frank in his admissions to the police in interview after arrest. His remorse was clear. In due course, it was accepted by the applicant that death had been caused by his driving, but he admitted that it was careless rather than dangerous.

The issue for trial, therefore, was whether the applicant had driven dangerously, thus, to cause the death of the deceased. The jury convicted the applicant on the evidence of the more serious offence.

The applicant had driven commercial vehicles professionally for a number of years, with an unblemished driving record. He was treated as having good character with character reference evidence in his favour for the purpose of the sentencing.

The judge concluded that the applicant’s driving fell within culpability B of the Sentencing Guideline for Causing Death by Dangerous Driving. This was on the basis that his driving was significantly impaired, because he had been deprived of adequate sleep or rest. This provided a sentence starting point of 6 years, with a range of 4 to 9 years. The judge treated as significantly aggravating factors of seriousness, that the applicant was driving an LGV commercial vehicle as a professional driver. Further, whilst not suffering from physical injuries, the deceased’s stepdaughter will suffer long-term psychological injury. Also, the applicant’s speed in excess of the limit of 40 miles per hour, whilst not being causative of the deceased’s death, was significant in the applicant’s driving leading up to the collision. The judge, therefore, raised the sentence from 6 years to 8 years, but then took into account the mitigating factors, including the applicant’s good character, unblemished driving record, his remorse and frankness with the police. To some extent there was also mitigation in the fact that the applicant had admitted that his driving had caused the death of the deceased. Taking into account these factors, the judge reduced the sentence from 8 years to 7 years which she imposed on the applicant.

On behalf of the applicant, Mr Rimmer, who appeared before the court below and for whose submissions we are grateful, argued essentially three grounds: Firstly, that the sentence was manifestly excessive; secondly, that the judge gave too much weight to the fact that the applicant was a professional driver in a commercial vehicle; thirdly, that insufficient weight was given to the applicant’s mitigation.

In support of this grounds, Mr Rimmer also submits that the judge should not have increased the sentence above the starting point in the Guideline of 6 years. To assist the Court, the prosecution, in their Respondent’s Note, have addressed the grounds raised by the applicant. Firstly, it is contended that the judge correctly identified the sentence guideline with its starting point. Secondly, the aggravating factors merited the increase in sentence, before mitigating factors reduced it to 7 years. The prosecution contend therefore, that the sentence imposed was both appropriate and not excessive.

We wish to endorse the observation made by the judge at the beginning of her sentencing remarks that:

“There is no sentence that can be passed in this case, or others like it, that would ever reflect the loss of the deceased to those who knew and loved him. Sentencing in cases of death by driving offences is always difficult.”

We are also entirely satisfied that the judge adopted the correct sentencing guideline and that the starting point of 6 years need be increased to reflect the aggravating factors which were expressed. Within the guideline, any driving for commercial purposes in large vehicles was expressly stated as an aggravating factor of seriousness. The judge also identified the long-term psychological impact on the deceased’s stepdaughter and that the applicant drove at excessive speed (though not causative of the death) towards the bend which led to the collision. Equally, we are satisfied that the judge took into account all mitigating factors and reduced the sentence to 7 years. In the circumstances, we can find no criticism of the sentence of 7 years, whether in principle or that it was excessive. On the contrary, we are satisfied that the sentence is neither arguably excessive nor wrong in principle. This appeal is without merit.

We turn finally to the issue of driving disqualification, the order for which was 8½ years, taking into account the period of custody in accordance with section 35A of the Road Traffic Act 1988; two issues arise. Firstly, that in attempting to give credit to the applicant for the interim disqualification period, the judge caused to fall into error when she was told that 7 months and 7 days’ credit could be given. This failed to recognise section 26(4) of the Road Traffic Offenders Act 1988 and the recent decision of this Court in R v Marshall [2023] Crim 964. The statutory maximum for an Interim Disqualification is 6 months and, accordingly, credit for more than that period was not permitted. However, we shall not interfere with the length of the disqualification, because to do so would render the applicant’s sentence more severe, which this Court must not do - see section 11(3) of the Criminal Appeal Act 1968. Also, we understand that the applicant did not drive any vehicles after the Interim Disqualification Order was made, accept that it would be unfair to address the disqualification period at that stage.