Leahy [2018] EWCA Crim 2858

Regina v James Leahy [2018] EWCA Crim 2858 concerned an appeal against sentence in the Court of Appeal Criminal Division which was allowed in part, reducing the custodial term from 28 months to 19 months’ imprisonment.

On 22 June 2018 at the Crown Court at Woolwich, His Honour Judge Raynor sentenced Mr Leahy to 28 months’ imprisonment for causing serious injury by dangerous driving. No separate penalty was imposed for driving whilst unfit through drugs. He was disqualified from driving for a total of 50 months, comprising three years’ discretionary disqualification and a 14-month extension under section 35A of the Road Traffic Offences Act 1988. There was uncertainty whether the requirements of section 36 had been fulfilled requiring disqualification until an extended driving test had been passed. Mr Leahy appealed with leave of the single judge.

At about 10am on a Saturday in June 2017 a collision occurred in Ship Lane, Sutton at Hone, Kent between a hire van driven by Mr Leahy and a motorcycle ridden by Mr Garry Layton, then aged 63. Ship Lane is a country road running between Swanley and Sutton at Hone with no road markings and mostly single lane with slightly wider passing areas. Mr Leahy was driving towards Sutton at Hone and Mr Layton was riding in the opposite direction towards Swanley. Mr Layton was a keen motorcyclist and instructor travelling at an appropriate speed on a road he had used for 30 years and knew well. Mr Leahy overtook a cyclist at a blind right-hand bend, causing his van to go over to the right-hand side of the road. As a result the front side of the van struck the motorcycle being ridden in the opposite direction by Mr Layton. Although Mr Layton had slowed as he approached the bend he was left with no room to avoid the collision. Footage from a head camera worn by Mr Layton showed that the road would have been wide enough for the two to have passed had Mr Leahy not been overtaking on the wrong side of the road.

Mr Layton was thrown to the ground by the force of the collision and taken to hospital where he was found to have sustained an open fracture of his right knee with a large laceration in the same area. X-rays confirmed a displaced fracture of the knee and distal femur. He was admitted to hospital and underwent an operation the following day in which screws were placed in his lower femur and patella. He had also suffered broken bones in his foot and his right toe was broken. When police arrived at the scene they questioned Mr Leahy who identified that he was taking medication. When asked if he was meant to be driving whilst on that medication he replied “No, but doesn’t everyone?” He failed a roadside test for drugs and was arrested. A urine specimen taken at the police station showed the presence of a number of drugs or metabolites including cocaine and a cocaine body breakdown product indicative of the use of cocaine sometime within 24 hours of the specimen being taken. In interview Mr Leahy agreed that he had moved on to the wrong side of the road to overtake the cyclist and that he was in a blind spot and could not see down the road as he did so. He said that he was not completely on the opposite side of the road and denied that he had driven dangerously.

At the plea and trial preparation hearing Mr Leahy entered a not guilty plea. After the trial was fixed a defence statement was served still contesting that the driving had been dangerous. On 22 May the matter returned to court and Mr Leahy changed his plea to guilty. He was given 20 per cent credit for his guilty plea at that stage. Mr Leahy was aged 48 at the time of the incident with no relevant previous convictions.

Two victim impact statements from Mr Layton were before the sentencing judge. The second, almost a year after the accident, described that he still walked with a limp when tired at work, that his knee ached and he had to take painkillers at night. His cycling activities had been curtailed and he still did not have the strength and flexibility in his knee to be able to cycle as extensively as before. He had had to use about £6,000 of his savings intended for his pension to supplement his statutory sick pay when off work. He described the whole event as deeply traumatic.

At the sentencing hearing the defence initially made an application to adjourn for the preparation of a psychiatric report. In the event Mr Leahy’s sister gave oral evidence as a result of which the judge considered an adjournment unnecessary. She testified that ten to fifteen years ago Mr Leahy had sustained a back injury when a police officer had run him over. Since then he had suffered chronic back pain, bouts of depression and had had a breakdown about ten years ago when he went into a psychiatric unit for about two weeks. She said he had not had much help with his psychiatric problems and that he also had a lot of emotional problems and family difficulties. The chronic back pain was being treated by prescription medication. There were ten separate medications which he was taking at the time including opiates and benzodiazepines.

In passing sentence the judge took account of the guidelines for death by dangerous driving, although serious injury not death was the harm in the case before him. He said that in respect of seriousness this was not a prolonged or deliberate course of very bad driving but that Mr Leahy must have been aware of the risk of driving of this nature and of the absolute necessity for people to take bends slowly and to be aware of what was going on around them. He identified the relevant aggravating factors as the consumption of illegal drugs and the consumption of legal drugs where they impaired Mr Leahy’s ability to drive. The judge concluded that Mr Leahy’s driving was partly caused by the ingestion of cocaine and was contributed to also by having taken the prescription drugs. He observed that in respect of personal mitigation Mr Leahy had the benefit of a good driving record having been a driver for some time with no previous driving matters recorded against him. Regard was also paid to the remorse which he expressed.

The judge found Mr Leahy to fall within level 3 of the guidelines in that his driving created a significant risk of danger. The judge had regard to a number of cases which dealt with causing death by dangerous driving including R v Abbassi [2017] EWCA Crim 779, R v Bennett [2017] EWCA Crim 748, R v Sandulache [2015] EWCA Crim 1502 and R v Vincer [2014] EWCA Crim 2743. He took account of the severity of the injuries to Mr Layton and observed that within a range of harm this was not the most serious case. He considered that the appropriate sentence after a trial would have been three years’ custody which he reduced to 28 months by giving credit of 20 per cent for the guilty plea and rounding it down.

The essential ground of appeal was that taking a starting point of three years after a trial was manifestly excessive given the nature of the harm which was caused, the nature of the offending and the particular mitigating factors.

The court held that there was some force in that submission. Mr Justice Popplewell, giving the judgment of the court, said that the judge had correctly followed the guidance given in R v Dewdney [2015] 1 Cr App R(S) 36 to consider the sentencing guideline for causing death by dangerous driving. It fell within category 3, involving a significant risk of danger. It did not involve more than a single exercise of judgment in deciding to overtake when it was dangerous to do so. It was clearly aggravated by Mr Leahy’s use of cocaine sometime in the previous 24 hours, which was a contributing factor, and by his driving when on prescription drugs which he knew was contrary to medical advice and which was also a contributing factor. That aggravation was to a significant extent balanced by the personal mitigation of his good record, his remorse and his own difficulties.

The court observed that a category 3 offence of causing death by dangerous driving attracts a starting point of three years’ custody with a range of two to five years and that offence carries a maximum sentence of 14 years’ custody. The offence of causing serious injury by dangerous driving carries a maximum sentence of five years’ custody. The difference between the offences lies in the harm caused. The court emphasised that in a case of causing serious injury by dangerous driving it is always necessary to give weight to the seriousness of the injury in the context of the offence.

Whilst not in any way seeking to minimise the impact on Mr Layton, the court considered that his injuries were towards the lower end of the scale of injuries which are properly described as serious, which is the threshold for the offence. The court considered that the gravity of this offending would properly be reflected in a sentence of two years’ imprisonment after a trial. After discounting by 20 per cent for his guilty plea that would result in a sentence of about 19 months.

The court substituted a period of 19 months’ imprisonment in place of 28 months. It also adjusted the disqualification period to run for 45 and a half months, being the three year discretionary period and an extension period under section 35A of the Road Traffic Offences Act 1988 of nine and a half months. The court confirmed that there should be imposed a requirement that an extended retest is passed and if and in so far as that was not imposed by the judge it was imposed on appeal.

In short, the appeal was allowed in part, with the sentence reduced to 19 months’ imprisonment to reflect that the serious injuries sustained fell towards the lower end of the scale for this offence and that the starting point of three years adopted below had been manifestly excessive.

Abbassi [2017] EWCA Crim 779
Bennett [2017] EWCA Crim 748
Sandulache [2015] EWCA Crim 1502
Vincer [2014] EWCA Crim 2743; [2015] 1 Cr. App. R. (S) 51
Warrilow [2014] EWCA Crim 2523; [2015] 1 Cr. App. R. (S) 36