Adrian Knox-Hooke [2019] EWCA Crim 1348; [2020] R.T.R. 8, CA

In R v Adrian Knox-Hooke [2019] EWCA Crim 1348 the Court of Appeal (Lord Justice Leggatt, Mr Justice Popplewell and His Honour Judge Marson QC) allowed an appeal against sentence for causing death by dangerous driving, reducing the term of imprisonment from six years to four and a half years.

The appellant had pleaded guilty to causing death by dangerous driving and was sentenced on 1 February 2019 by Her Honour Judge Poulet QC at the Central Criminal Court to six years’ imprisonment. The mandatory driving disqualification was also imposed.

On 5 August 2017 at around 11.50 pm, Mr Rajesh Naik, aged 63, was returning to a car park after collecting his wife from the Sikh Temple on Gladstone Way in Harrow. To reach the car park he had to cross Gladstone Way, a one-way street. The road appeared safe to cross because traffic came from his left and that direction was clear. To his right was a Mercedes car stationary behind another vehicle at a T-junction waiting to turn onto Palmerston Road. Mr Naik stepped into the road and was immediately struck by the Mercedes, which had unexpectedly started to reverse. He fell and hit his head, and three days later died from his head injury. The appellant was the driver of the Mercedes. He had been in the area for some time having met with friends, and there were three passengers in his car. CCTV footage showed that after striking Mr Naik the appellant continued to reverse at an estimated 6 to 8 mph for approximately another 20 metres before stopping, probably because another car could be seen approaching. He then drove forward past Mr Naik, who was lying prone at the roadside. He drove quickly and a witness heard a screech as the Mercedes turned left without indicating. The appellant then parked at a distance. He must have felt the collision and known he had hit someone or something, though he later claimed he thought he had hit a bollard. The judge found that he must have seen when driving forward again that he had in fact hit a pedestrian, yet he did not stop and indeed sped off. A few minutes later the appellant returned on foot with another man. By then police and paramedics were present. He hung around for a few minutes but did not speak to anyone to admit his involvement. He later claimed he had no inkling he was responsible, a claim the judge rejected as unbelievable. The Mercedes, which belonged to the appellant’s mother and which he was insured to drive, was later traced and he was arrested. He pleaded guilty at the pre-trial preparation hearing. The appellant was 30 years old at the time of the offence. He had one relevant conviction six months earlier for using a mobile telephone while driving.

The judge applied the Definitive Sentencing Guideline for Offences of Causing Death by Driving and assessed the offence as falling at the upper level of Level 2, which has a sentencing range of four to seven years with a starting point of five years’ custody. The judge took six years as her starting point, which she increased to eight years because of the aggravating features of the appellant’s failure to stop at the scene and his conduct in returning to it without coming forward to admit his involvement. The judge accepted that the appellant felt genuine remorse at the sentencing hearing but considered that any credit for this was undermined by his continued refusal to acknowledge that he had been aware that he had hit and injured Mr Naik. Giving a 25 per cent discount for the guilty plea resulted in a sentence of six years’ imprisonment.

Miss Nwosu appeared for the appellant. She did not pursue orally the first written ground of appeal that the judge erred in determining that the offence fell into Level 2 as opposed to Level 3. The court regarded this as a correct and realistic concession. Level 2 is described as driving that created a substantial risk of danger and includes a group of determinants of seriousness which in isolation or smaller number would place the offence in Level 3. Two of the characteristics associated with Level 3 offences were present: a brief but obvious danger arising from a seriously dangerous manoeuvre, and failing to have proper regard to vulnerable road users, namely pedestrians in an area where the appellant must have been aware many people were about leaving the Sikh Temple and an event at a nearby banqueting hall. The court rejected the respondent’s submission that a third factor of driving while avoidably distracted was also a feature. That factor, the court held, is intended to cover cases such as using a mobile telephone at the time of the offence. The only distraction here was the explanation for the appellant’s bad driving in that he became impatient waiting to turn out of the road, and it was not a further aspect of bad driving. The offence was correctly categorised as falling within Level 2.

The appellant’s principal argument pursued orally was that having considered the offence fell within Level 2, there was no justification for departing from the five-year starting point. The court was satisfied that there was such a justification, consisting in the features which the judge properly identified as aggravating, namely the appellant’s irresponsible behaviour in failing to stop and help the man he had seriously injured and in failing to acknowledge his involvement when he returned to the scene on foot. However, the court held that there was a limit to the extent to which it was appropriate to punish someone who committed a driving offence for conduct which, however reprehensible, was not an aspect of the offender’s dangerous driving or part of the offence itself. In this regard it was relevant to keep in mind that the offence of failing to stop and report, which was the only criminal aspect of the relevant behaviour, carried a maximum sentence of six months’ imprisonment. It was also relevant that the appellant did afterwards show, as the judge accepted, genuine remorse for what he had done, as reflected in his statement in interview that his responsibility for taking someone’s life would haunt him until the day he died. The court considered that the very substantial uplift which the judge made to the sentence on account of the appellant’s conduct after the offence was committed was not justified and resulted in a sentence which was manifestly excessive. To reflect the aggravating features identified by the judge, including the previous driving conviction, an appropriate increase above the starting point in Level 2 was an increase of one year, making six years before the 25 per cent discount for pleading guilty. That discount made the appropriate sentence four and a half years’ imprisonment.

The court allowed the appeal, quashed the sentence passed by the judge and substituted a sentence of four and a half years’ custody. There was a consequent alteration to the mandatory period of disqualification, which was now for a period of seven years and three months, made up of a period of five years and a two year and three month extension. In short, the sentence was excessive because the uplift for post-offence conduct was disproportionate given its criminal maximum and the genuine remorse ultimately shown.