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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Braid, R. v [2002] EWCA Crim 737 (8 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/737.html Cite as: [2002] EWCA Crim 737

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Friday 8th March 2002

1. MR JUSTICE LEVESON: On 3rd October 2001 at the Crown Court at Lincoln this appellant pleaded guilty on rearraignment to an offence of causing death by dangerous driving. Following the preparation of a pre-sentence report on 26th October he was sentenced by His Honour Judge Heath to a term of two years' detention in a young offender institution. He was disqualified from holding or obtaining a driving licence for six years and thereafter until an extended retest was taken. He now appeals against that sentence by leave of the single judge.
2. As frequently occurs in these cases, the facts reveal a tragedy which devastates more than one family. At about 11 am on 5th June 2001 Dennis Bamford in his Vauxhall Cavalier motorcar dropped off his aunt in Skegness and then drove along the A158 and the A16 towards Grimsby. His wife Beverley was in the front passenger seat. Both of them wore seat belts. It was a clear sunny day. Visibility was good and the road surface was dry.
3. Shortly after midday Mr Bamford was driving on the A16 at about 55 to 60 mph when he saw an articulated lorry driving towards him followed by several cars. The lorry was being driven on its correct side of the road and in a normal fashion. The appellant was driving his Ford Escort motorcar behind the lorry when suddenly he pulled out to overtake. He was approaching a blind corner and was unable to complete the manoeuvre and unable, when he appreciated the presence of the oncoming car, to pull back into the line of traffic. As a result the appellant collided with Bamford's vehicle head-on. It was described by Mr Bamford as a severe impact which caused his wife to sustain head injuries from which she died.
4. When interviewed the appellant said that he regularly used the road concerned to travel to and from work. He said that he overtook three cars and found himself behind a lorry. When he overtook the lorry the other vehicle appeared. He began to brake and considered driving into a field to avoid the accident. He believed they were going to miss each other but at the last minute the other vehicle swerved towards him.
5. We must now describe the effect of the accident. Not only did Mrs Bamford die but Mr Bamford suffered serious injuries which required inpatient treatment in hospital for six days. He suffered a fractured left hip which required pinning and immobilisation. He was released from hospital after some four weeks with the use of a wheelchair, but he subsequently required readmission and further treatment. His mobility is affected and may never fully recover. His activities have been severely curtailed. In addition his family have been devastated. His daughter, then aged 17, has become the woman of the house and at her age has found it difficult. Their son, aged fifteen at the time, has learning difficulties and requires one to one attention at school. Not surprisingly Mr Bamford describes his wife's death as leaving a hole in everybody's life.
6. Similarly the accident has had a very real impact on the appellant and his family. At the time he was 20 years of age and of previous good character. To the probation officer he made no attempt to excuse his offence but explained that at the time he was suffering depression relating to his father's disease, namely that of Huntingdon's Chorea, and his own health concerns which related to whether he himself was susceptible to and likely to be affected by a similar disease: in its early stages, it apparently affects judgement. Secondly, he was taking prescribed antidepressants and additionally painkillers for toothache.
7. A psychiatric report prepared concluded that at the time of the offence the appellant's mental state had been impaired by underlying clinical depression caused by the rapidly continuing deterioration of his father and the probability that he himself has been affected by Huntingdon's Chorea. The clinical opinion was that his impairment led to a lack of concentration in an otherwise meticulous person and, maybe, a state of disassociation. There was evidence proving the condition of his father from which it is quite apparent that he (the father) has caused enormous difficulties both to the appellant and his mother.
8. There was a letter from the appellant's mother referring to the family situation and how it had affected the appellant. She expressed support for her son who she believed would carry the guilt of the offence around with him for the rest of his life. There were letters from his fiancee, employers and others, all of whom spoke of his maturity, his good sense, his safety as a driver and the burden upon him of his father's illness.
9. When passing sentence His Honour Judge Heath observed:

"I have to sentence you today in a case which is a tragedy. A tragedy for everybody. These cases always are. And particularly so is this case a tragedy. The driving, albeit over a short distance, was a very bad piece of driving indeed. Because it is plain from the photographs and the video that you simply could not see what was coming along that road. You thought you could, but it is plain that you could not and, in effect, you overtook blind.

You were not travelling at a grossly excessive speed, but your speed was in excess of the speed limit for that road. At the point of braking it was 71 and the speed limit is 60. You had just overtaken three vehicles. No criticism is made of that overtaking."

10. Having observed that he had pleaded guilty and was of previous good character the learned judge referred to the deeply moving letter from his mother and the other letters. He went on:

"You have also shown courage in carrying out your duties at work. Those who have taken the trouble to write on your behalf obviously think very highly of you. But, the Court of Appeal has said on a number of occasions that personal circumstances do not weigh heavily in the balance in cases of causing death by dangerous driving. And, sadly, it is my public duty in this case, given the seriousness of the driving and the tragic consequences that ensued from it, to pass a custodial sentence. I keep it as low as I can."

11. In advancing this appeal Mr Napthine makes five points. He identifies the relatively limited nature of the poor driving, the effect of his father's Huntingdon's disease and its impact upon the whole family, together with the fact that he himself is trying to come to terms with the prospect that he will suffer the same difficulties, the devastating effect that a custodial sentence has upon his family and the recommendation the pre-sentence report which proposed that the sentence should await his own test for Huntingdon's Chorea.
12. As to the personal circumstances the court endorses the view expressed by the sentencing judge. One of the reasons that this offence presents such a difficult sentencing decision is that those falling to be sentenced not infrequently have the highest personal credentials and so generate very real sympathy. The public however are entitled to require the courts to reflect the loss of a precious life and to demonstrate to all that dangerous driving is a very serious social evil which if it causes death will almost inevitably lead to a substantial custodial sentence.
13. The question is need this sentence have been as long as two years? In Lowry (1996) 2 Cr.App.R (S) 416 a 63-year-old man pleaded guilty to causing death by dangerous driving having overtaken another car at night while approaching a point in the road which rose to a slight crest and thereby blinding him to an oncoming car which caught fire and caused the death of a baby. That appellant had driven for 43 years without any conviction. It was accepted that he had simply overtaken at a time when he should not have done. He was sentenced to a term of three years' imprisonment as to which this court observed:

"We accept that, essentially, this was a case without any of the common aggravating features. It happened late at night, but there was no suggestion of alcohol. It was a case of misjudgment, but the act of overtaking on approaching the crest of a hill was a deliberate one and the results were disastrous.

Balancing the most excellent character of the appellant with all the other factors in this case, we accept that the sentence imposed...was manifestly excessive."

14. The court then went on to substitute for the term of three years a term of 18 months' imprisonment.
15. In this case the appellant should have appreciated that he was approaching a blind corner. This was not an accident at night and that appreciation, namely that he could not see far enough in front to ensure he could pass the articulated lorry safely, behind which he was driving, should have been apparent.
16. Nevertheless it does not have any of the aggravating features identified in the authorities and does exhibit many of the features which mitigate the sentence. In the circumstances we vary the term of two years' imprisonment and impose a like sentence for that imposed in Lowry, namely 18 months' detention in a young offender institution.
17. Mr Napthine also seeks to appeal against the term of six years' disqualification having regard to the circumstances of the accident which did not involve prolonged bad driving but was one serious error of judgement, however it is so characterised. We believe there is force in that submission. The sentence of six years' disqualification will be quashed and a sentence of three years' disqualification imposed in its place. To that extent this appeal is allowed.

MR JUSTICE LEVESON: You aware Mr Napthine that we have to deal with the recovery of defence costs. Presumably firstly the appellant has now lost his employment, so he has no income.

MR NAPTHINE: He has lost his employment. He has no income.

MR JUSTICE LEVESON: There is no evidence of any assets?

MR NAPTHINE: No.

MR JUSTICE LEVESON: In any event you have succeeded.

MR NAPTHINE: My Lord.

MR JUSTICE LEVESON: We make no order.