Sentence

Sentence


In September 2009, two appeals against sentence came before the Court of Appeal. In one, Darren Hall appealed a sentence of seven months detention in a young offenders’’ institution following his guilty plea to the offence of wanton and furious carriage driving contrary to section 35 of the Offences against the Person Act 1861 (a bicycle being deemed a carriage in Victorian legislation). He had in August 2008 been riding his bicycle on the pavement in Weymouth when, after turning a corner at speed, he collided with Mr Ronald Turner who died some days later from a pulmonary embolism attributable to the collision. Mr Hall was young (20 at the time of the collision) and stopped to render assistance (had Mr Hall been a motorist, the sentencing guidelines relating to causing death by driving make clear that this would be treated as a mitigating factor).


His appeal against his detention was dismissed by the Court of Appeal who observed that he ought to have realised that if he collided with an elderly or infirm pedestrian it was entirely possible that serious injury might ensue. “It was the sort of cycling which, in our judgment, created at least some risk of danger. It was, therefore, not far short of dangerous cycling”. The logic of this cannot be faulted, although it is worth pondering why cyclists not infrequently ride on pavements. They should not do so, but so long as the car culture sends out the message that cyclists are not welcome, or safe, on the roads but should be separated from, and thus out of the way, of motor traffic, the unfortunate practice is likely to persist. It is rather encouraged by the strategy adopted by many Highway Authorities of providing for cyclists by painting bicycle paths on the pavement instead of ensuring that traffic is calmed appropriately for shared use of the road.


In the other case Matthew Rice appealed a sentence imposed at Peterborough Crown Court of 20 weeks imprisonment and a two year driving ban for the offence of causing death by careless driving introduced by section 20 of the Road Safety Act 2006. Mr Rice had been driving home along a narrow country lane near Fenstanton in Cambridgeshire at about 6pm on a Friday in November. He was third in a line of three vehicles headed by a car travelling at 40 to 45mph. This was not a sufficient rate of progress for either Miss Buckingham (driving the car second in line) or Mr Rice. Mr Rice pulled out to overtake both the cars ahead of him but Miss Buckingham then pulled out to overtake as well. Mr Rice could no longer see what lay ahead but nonetheless remained behind Miss Buckingham to overtake the lead car. A fit cyclist, Mark Robinson, was riding in the opposite direction. His front light was seen by the driver of the lead car and was described by another witness as ‘quite brightly lit’. Miss Buckingham saw him just in time and was able to regain her correct side of the carriageway without a collision. Mr Rice did not see Mr Robinson until it was too late. The road was not wide enough for two cars and a bicycle and there was a head on collision, at a closing speed of about 70 mph, in which Mr Robinson tragically died.


Mr Rice was driving fast on the wrong side of the road in circumstances where he could not see what was coming towards him. In any ordinary sense of the word this is dangerous. Using the words aptly applied to Mr Hall’s cycling, it was the sort of driving which created at least some risk of danger and was, therefore, not far short of dangerous driving. However the Crown had agreed with the Defence that this was not close to the border of dangerous driving but was in the middle range of careless driving. Comparisons were then made with the fate of Miss Buckingham who had been convicted of careless driving and failing to stop and received a fine of £300 with a disqualification from driving for nine months. It was thought that the levels of culpability were the same with a difference only in the consequences. This seems charitable to Mr Rice; Miss Buckingham could see where she was going and, albeit late, saw Mr Robinson in time to avoid a collision. Had it not been for Mr Rice’s actions no accident would have occurred and (as any cyclist who has tried reporting a ‘close shave’ will know) it is inconceivable that she would have faced any prosecution.


There was further concern expressed about the far lower powers of sentencing available had the accident resulted in serious injury rather than death, though the Court did acknowledge that Parliament had singled out the consequence of death as calling for particular sanction. Of course the lack of draconian sentencing power, had the consequence been serious injury, results also from the peculiar reluctance to condemn as ‘dangerous’ actions which in any context, other than driving, would be unhesitatingly so described. Charging decisions are important. Judge Peter Moss when sentencing a man (R v Robertson Guildford Crown Court 10.11.09) who had used his car to run down and seriously injure a cyclist rightly expressed his sentencing powers (2 years custody) for dangerous driving as “absurdly low and incomprehensible” given the facts of that case, but he may have been assisted by a more imaginative decision to prosecute for assault occasionally actual bodily harm which carries a maximum of 5 years. Prosecutors here might learn from the course taken by Los Angeles prosecutors in the case of Dr Christopher Thompson, who was this month convicted on seven counts including assault with a deadly weapon after a road rage incident resulting in two injured cyclists.


In the event in Rice’s case, the Court of Appeal decided that it was not sufficiently clear that the Judge had considered suspending the custodial sentence and since the Court of Appeal thought that was the appropriate course, they duly suspended the sentence. This could be said to be different from Mr Hall’s treatment, though it may be that there was some good reason, which is not clear from the report, why a suspension of Mr Hall’s sentence would have been inappropriate.


The Court of Appeal then considered Mr Rice’s appeal against his two year driving ban. The Court sympathised with the predicament of a man who had chosen a life-style which made a driving ban a serious impediment to keeping his job and reduced the ban from 2 years to 12 months. This is the same period for which Mr Hall was disqualified from holding a driving licence as a consequence of his offence committed on a bicycle.


Finally it is to be noted that the sentencing guideline’s aggravating feature of failing to take extra care around vulnerable road users was not invoked against Mr Rice. True he did not know he was in the vicinity of a cyclist until it was too late but he was driving nearly literally blindly into a space which foreseeably contained a cyclist.


In May 2009, Denis Moore, received a suspended prison sentence at Durham Crown Court following his conviction of causing death by careless driving. He had struck and killed a cyclist, Mr Jorgensen, as a consequence of failing to accord him the right of way on a roundabout. As noted, the causing death by driving sentencing guidelines identify cyclists, amongst others, as vulnerable road users, and state that a driver is expected to take extra care when driving near them. Driving too near to a bicycle or horse is an aggravating factor. The guidelines go on to indicate that where the actions of the victim or a third party contributed to the commission of the offence that should be acknowledged as a mitigating factor. In passing sentence Judge Lowden referred to defence counsel’s submission that Mr Jorgensen’s lack of a helmet was a mitigating feature. It is not clear whether this is in fact what tipped the balance against an immediate custodial sentence but it would be deeply disturbing if it was. There appeared to be few other potentially mitigating features (and indeed Mr Moore had been habitually driving for years unsupervised with a provisional licence). The absence of a helmet clearly did not contribute to the commission of the careless driving, and the section 20 offence is more serious than careless driving because of the consequences, not the other circumstances, of the offence. Whether a helmet would in fact have made any difference is highly questionable and is unlikely to have been investigated at a sentencing hearing. But in any event, even if Mr Jorgensen was more vulnerable as a consequence of being helmetless, then, as Darren Hall’s case illustrates, the vulnerability of the victim is no mitigation.



Read next section ‘Presumptions of Liability’

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