Miguel Rahiece Cunningham [2019] EWCA Crim 956

Miguel Rahiece Cunningham [2019] EWCA Crim 956 concerned an appeal by leave against sentence imposed in the Crown Court at Wolverhampton for aggravated vehicle taking. Mr Cunningham pleaded guilty on 24 January 2019 before His Honour Judge Berlin to aggravated vehicle taking contrary to section 12A of the Theft Act 1968 and received sixteen months’ imprisonment, no separate penalty for driving without insurance contrary to section 143 of the Road Traffic Act 1988, and was disqualified from driving for five years and eight months with an extended retest requirement. The Court of Appeal (Jeremy Baker J and Sir Kenneth Parker) allowed the appeal in part, reducing the disqualification period but upholding the custodial term while correcting the form of the sentence to reflect the appellant’s age.

On 21 December 2018 a Range Rover motor vehicle was stolen from outside its owner’s address in Smethwick, West Midlands. On 26 December 2018 police officers observed the vehicle travelling in the opposite direction bearing false registration plates indicating a 2012 registration when the vehicle was in fact registered in 2015. The officers turned to follow after noticing a broken driver’s side window. The Range Rover initially proceeded at reasonable speed but then the appellant overtook a vehicle and set off. A pursuit lasting approximately twelve minutes followed through both industrial and residential areas at speeds ranging from 20mph to 60mph, although the sentencing judge observed speeds of up to 70mph on CCTV footage. During the pursuit the appellant drove through three red traffic signals, drove on the wrong side of the road, and overtook stationary vehicles waiting at traffic lights. He went around bollards the wrong way and cut through junctions without stopping. Other cars were forced to swerve to avoid collision. The offending took place at midday on Boxing Day when there was considerable traffic, though fewer pedestrians. The appellant eventually leapt from the still-moving vehicle, which collided with a bus shelter. Fortunately no persons were present at the shelter. The appellant made off but was detained with the assistance of other officers and arrested.

In interview, having viewed CCTV footage captured by the police car, Mr Cunningham accepted that his driving had been dangerous but asserted he did not know the Range Rover was stolen. The judge rejected this assertion and proceeded on the basis that the appellant knew the vehicle was stolen, though he accepted the appellant had not stolen it himself.

In sentencing, Judge Berlin noted that the appellant was twenty years of age with a very bad though not lengthy criminal record. He had previously received a three-year custodial sentence for drug offences and had been recalled on licence when arrested for the index offence. The judge described the offending as an “absolutely shocking piece of driving in a stolen car”. He emphasised that the Range Rover was a large and powerful vehicle driven at speeds of 60mph to 70mph in areas where 30mph limits would have applied. The judge observed that other cars had to swerve to avoid the vehicle and that the appellant had jumped from the moving vehicle, which then ploughed into a bus shelter. The judge remarked that the appellant would not necessarily have known whether anyone was present at the bus shelter. The judge assessed the offending as at the top end of such offending and took a starting point of twenty-two months’ custody, reduced to reflect the appellant’s age and lack of maturity. He then allowed slightly more than twenty-five per cent credit for the guilty plea, arriving at sixteen months’ custody. The disqualification period of five years and eight months comprised a five-year discretionary period plus eight months under section 35A of the Road Traffic Offenders Act 1988.

Mr Wright, appearing for the appellant, submitted that the custodial term of sixteen months was manifestly excessive. He emphasised that the appellant had no previous convictions for aggravated vehicle taking or dangerous driving, indeed no previous driving offences at all, and that this absence of relevant antecedents had not been adequately reflected in sentence. Mr Wright also relied on the appellant’s youth and immaturity at age twenty, the fact that he had not stolen the vehicle himself, and the fact that no injuries had been caused. He further submitted that the five-year disqualification period was excessive and would have a considerable effect on the appellant’s prospects following release, pointing again to the absence of any history of driving offences or breaches of earlier disqualification orders.

The Court of Appeal rejected the appeal against the custodial term. Sir Kenneth Parker, giving the judgment of the court, held that the starting point of twenty-two months was not excessive in all the circumstances. The court emphasised that this was indeed a shocking piece of driving which put other road users at risk. It was fortuitous that no injuries or greater damage resulted from the episode. The offence had been committed whilst the appellant was on licence for other serious offences, albeit not driving-related. Having regard to the high culpability, the learned judge had been right to take the starting point he did, which sufficiently reflected the appellant’s individual characteristics upon which Mr Wright had relied. Although the sentence might be described as severe, it could not properly be characterised as manifestly excessive.

The court saw greater force in the submissions relating to the period of disqualification. Having regard to the offending and the features upon which Mr Wright had relied, particularly the absence of any previous driving offences or breaches of disqualification, the court considered that the five-year period was indeed excessive and that a period of three years’ disqualification would have been appropriate. The total period of disqualification was therefore adjusted to three years, with the additional eight months under section 35A of the Road Traffic Offenders Act 1988, giving a total of three years and eight months to be substituted for the period of five years and eight months.

Finally, the court noted that the judge had pronounced a sentence of imprisonment. The imposition of such a sentence was impermissible under section 89 of the Powers of Criminal Courts (Sentencing) Act 2000 for a person under the age of twenty-one. The court made clear that, having regard to the appellant’s age, the appropriate sentence should have been one year and four months’ detention in a young offender institution. In short, the appeal was allowed in relation to the period of disqualification, which was reduced to three years and eight months, but dismissed in relation to the custodial term, which was corrected to sixteen months’ detention in a young offender institution.