Tomasz Burda [2019] EWCA Crim 1888
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Tomasz Burda [2019] EWCA Crim 1888 concerns an appeal by Mr Burda against elements of his sentence for dangerous driving, in which the Court of Appeal (Dame Victoria Sharp P, Sweeney J and Jefford J) allowed the appeal in part.
Mr Burda, a 40-year-old man of previous good character, pleaded guilty to dangerous driving contrary to section 2 of the Road Traffic Act 1988. He was sentenced to eight months’ imprisonment suspended for two years, an unpaid work requirement of 270 hours, an electronically monitored curfew from 8.00 pm to 7.00 am for six months, and disqualified from driving for three years with an extended re-test ordered. He appealed against the curfew and the length of disqualification, but not the custodial term itself.
On 27 March 2019, shortly after 9.00 pm, Mr Burda drove his BMW 3 Series north on the M6 from junction 1, passing an unmarked police car at considerable speed. The officers followed and reached speeds over 100 miles per hour, topping 127 miles per hour, simply to keep him in sight. He changed lanes repeatedly, undertaking a van and two cars. On approaching junction 2, where the speed limit reduced to 50 miles per hour in roadworks, he continued at approximately 127 miles per hour. He undertook again, braked hard three times, and crossed three lanes to exit at junction 3, where he was forced to stop at roadworks and was apprehended. The police car had displayed blue lights, though not sirens, throughout. The sentencing judge had no doubt that Mr Burda was aware he was being pursued. When stopped he was polite, co-operative and readily accepted his driving had been dangerous. In interview he explained that his wife had called to say their young daughter was very ill and needed hospital. The child had been recovering from scarlet fever but had contracted chicken pox, and that evening had an elevated temperature and muscle spasms. He offered this as an explanation but not an excuse.
Mr Burda is a Polish national resident in the United Kingdom since 2008, with no previous convictions or cautions. He holds a degree in mechanical engineering and had worked in the motor industry for years, most recently as a design verification engineer for Jaguar Land Rover. He lost that job following his interim disqualification. Positive character references were provided. The pre-sentence report assessed him as displaying genuine remorse, an avowed intention never to repeat such conduct, and only a 13 per cent risk of re-offending. The conduct was wholly out of character. The pre-sentence report had referred only to an unpaid work requirement as part of a community order; the curfew was an additional imposition by the sentencing judge.
On appeal, Ms O’Mara for Mr Burda argued that the curfew had a very significant impact on his life. She submitted that his former job had involved travelling abroad to test vehicles, which the curfew prevented, and that other roles in his profession required him to liaise with people in other countries, particularly China, necessitating arrival at work by 7.00 am, which the curfew also precluded. The court noted, however, that he had already lost his job through the driving disqualification, and there was no evidence of any specific job opportunity that the curfew prevented him from taking. More significant to the court was the impact on his family life. The curfew effectively prevented him travelling to Poland, where he had a 13-year-old son from a previous relationship whom he had previously visited monthly and brought to the United Kingdom during school holidays. He also had an elderly father undergoing treatment for leukaemia and wider family in Poland. A planned visit in September for a family wedding and the usual Christmas visit to Poland both became impossible.
The court accepted that the imposition of the curfew in Mr Burda’s particular circumstances, and in addition to a requirement to undertake nearly the maximum number of hours of unpaid work, was manifestly excessive. The appeal was accordingly allowed on that ground and the curfew was quashed.
As to the disqualification, Ms O’Mara argued that the sole purpose of disqualification was to guard against re-offending or protect the public, and that the low risk of re-offending should be reflected in its length. She accepted, however, that disqualification also has a punitive purpose, as recognised in cases such as R v Backhouse [2010] EWCA Crim 111 and R v Mohammed [2016] EWCA Crim 1380. The court considered both purposes together. The appellant submitted that the three-year period was excessive given that this was his first offence of any nature and the significant impact on his future job prospects. He worked in an industry where it was important to arrive at work early to liaise with people in other countries, and car plants and manufacturers were not located in city centres and were more difficult to reach without driving. His particular role as a design verification engineer required him to drive on public roads as part of vehicle testing. Although other jobs in car manufacturing or design might not require such driving, his inability to drive significantly diminished the number of posts for which he could apply and might undertake. It was also argued that the inability to drive had a significant impact on his family. His partner suffered from kidney disease, and it had been his practice to drive the family on many occasions rather than leave her to do so, in particular on visits to Poland.
Taking all these matters into account, the court was persuaded that the period of disqualification was manifestly excessive. The sentence was quashed and the period reduced to two years. The court noted that a remark of the sentencing judge might have indicated that he would have imposed a longer period but for the interim disqualification. For the avoidance of doubt, the court observed that any period of disqualification is automatically reduced by the period of interim disqualification pursuant to section 26(12) of the Road Traffic Offenders Act 1988.
In short, the appeal was allowed so as to quash the six-month curfew and reduce the disqualification from three years to two years, whilst the suspended sentence and unpaid work requirement remained undisturbed.