Haider Mirza [2019] EWCA Crim 1322
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Haider Mirza [2019] EWCA Crim 1322 concerned an appeal against sentence by the Court of Appeal (Criminal Division) comprising Lord Justice Leggatt, Mr Justice Popplewell and His Honour Judge Marson QC. The court reduced the custodial sentence from 40 months to 28 months and correspondingly reduced the period of disqualification.
Mr Mirza had pleaded guilty in the magistrates’ court and been committed to Derby Crown Court for sentence. On 14 February 2019 His Honour Deputy Circuit Judge Wassall sentenced him on four offences: causing serious injury by dangerous driving contrary to section 1A of the Road Traffic Act 1988, for which he received 40 months’ imprisonment; failing to stop and report a road accident, four months concurrent; and driving without a licence and without insurance, for which no separate penalty was imposed save for endorsement. He was disqualified from driving for 44 months, comprising the mandatory minimum of two years plus a discretionary extension of 20 months to reflect the custodial term, with an extended retest required under section 36 of the Act.
The incident occurred on 5 November 2017 at approximately 7.30 in the evening on Normanton Road in Derby, a well lit inner city road with shops and residential buildings. There was light rain and it was slightly misty. The victim, Mr Yousef, emerged from a shop, waited several seconds at the roadside checking for traffic, and began crossing the road from the appellant’s nearside at a point where the road curved slightly to the left. When Mr Yousef was over three quarters of the way across, the appellant’s Audi A3 struck him full on, lifting him up and hurling him onto the pavement further down the road. At the moment of impact the appellant was travelling at approximately 40 mph in a 30 mph limit zone and was almost entirely on the wrong side of the road. It was unclear why the car was on the wrong side; it may have been because the appellant had manoeuvred past a parked car further down the road and not regained his own carriageway, or it might have been a misguided attempt to avoid the victim by passing him on that side. The impact broke the car windscreen but Mr Mirza did not slow down or stop; he drove on and left the scene.
Witnesses attended to Mr Yousef and an ambulance was called. He was taken to hospital with a fracture of the skull, multiple rib fractures, a pneumothorax and bruising to the underlying lung, a fracture of the right shoulder blade and a fracture of the right kneecap. He required surgery on his right knee. The injuries were life changing. By the time of the appellant’s sentencing some 18 months after the incident, Mr Yousef was still suffering recurrent pain in his shoulder and right leg and was still attending hospital appointments. He had previously worked in a factory earning approximately £1,600 per month, some of which he sent to his mother in Sudan. He was now unable to work and was on benefits. He had no home and relied on the charity of friends for accommodation. One leg was shorter than the other. He could no longer play football, which he had previously enjoyed.
The appellant, in full knowledge that he had struck a pedestrian, took steps to avoid detection. A witness at the scene attempted to note the registration number but could only remember part of the plate. The police eventually traced an Audi in the area with a similar registration and discovered that the owner of that vehicle had purchased the personalised number plate from the appellant. The police were unable to progress matters at that stage and decided to issue a witness appeal. In January 2018 CCTV footage of the incident was released to the press. On 25 January 2018 Mr Mirza and others were arrested. In interview he made no comment but provided a prepared statement in which he denied involvement. The police downloaded the content of his mobile phone and found messages sent by him on the evening of the incident and the following day which made clear that he had been the driver of the Audi which struck Mr Yousef. The messages also indicated that his girlfriend was anxious that her fingerprints might be on the car and might implicate her. He told her not to worry because he had disposed of the car, a clear recognition of disposal of incriminating evidence. The car was never found.
The appellant was re-arrested on 12 December 2018 and again made no comment in interview. He pleaded guilty when charged and brought before Derby Magistrates’ Court the following day. He was 20 at the time of the incident. He had relevant driving convictions both before and since. In 2017 he received a non-custodial sentence for failing to give his name and address after an accident in which he collided with the rear of a vehicle causing injuries to the driver which required physiotherapy. On 28 July 2018, some nine months after the hit and run on Mr Yousef, he pulled out in front of a car causing it to brake heavily to avoid a collision before speeding up to red traffic lights. A police car observed the incident and caused him to stop beyond the lights. When an officer got out to speak to him he sped off and drove down a one-way street before being caught. When stopped he gave a false name. He received a 16 month disqualification. A few days later in August 2018 he was driving erratically in a car he had taken and was followed by the police. He ran off on foot and was subsequently sentenced to a further disqualification for taking a vehicle without consent and driving without insurance and whilst disqualified.
The sentencing judge did not have a pre-sentence report but there was a letter from the appellant expressing remorse and a large number of character references attesting to the fact that he worked as a volunteer at a local community centre and was well respected for his good works. In his sentencing remarks the judge recited the facts and the injuries to Mr Yousef, observing that serious and life changing as they were, they might have been even more serious. He referred to the failure to stop, the disposal of evidence and the other driving offences committed before and since. He indicated that he felt unable to afford significant weight to the avowed remorse and character references in light of the long period during which the appellant had sought to avoid detection and his denial right up until he was charged at the magistrates’ court. The judge said that an appropriate sentence for all the offending after trial would be five years and, giving full one third discount for the guilty plea, arrived at 40 months.
The grounds of appeal were twofold. First, it was argued that the starting point of five years was manifestly excessive given that five years was the maximum penalty for causing serious injury by dangerous driving and that this was by no means the worst sort of case of dangerous driving coming before the courts. It would not qualify as Level 1 under the guideline for causing death by dangerous driving. Secondly, it was argued that insufficient credit was given for the appellant’s remorse, what was said in the character references and his personal mitigation, including his youth and the fact that this was to be his first custodial sentence.
The court considered there was some merit in these points. Mr Justice Popplewell, giving the judgment of the court, noted that in R v Dewdney [2014] EWCA Crim 1722 Treacy LJ had explained that it was not helpful to make comparisons with the worst sort of case which might come before the courts, but that consideration of the three levels of culpability set out in the guideline for causing death by dangerous driving should afford a guide to sentencing, bearing in mind the different maximum sentences of 14 years and five years respectively. The court held that this was driving which fell within Level 2 of that guideline, being driving that created a substantial risk of danger. It was not at Level 1, which was reserved for the most serious offences encompassing driving that involved a deliberate decision to ignore or flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others.
The offence was aggravated by the life changing nature of the injuries, the failure to stop, the disposal of evidence to avoid detection, the lack of licence and insurance, and the driving record of this appellant both before and after the incident. On the other hand, the appellant was only 20 at the time and this was to be his first custodial sentence. In the court’s view a sentence after trial of 42 months would have been appropriate, which after discount for plea would fall to be reduced to 28 months. Accordingly the court quashed the sentence of 40 months and substituted 28 months. The extended disqualification period therefore fell to be reduced to reflect the reduced custodial sentence. The extension period was reduced to 14 months, making a total disqualification period of 38 months in place of the 44 months imposed by the judge. The court also clarified that the victim surcharge would apply. In short, the appeal was allowed to the extent of a reduction in the custodial sentence from 40 months to 28 months and a corresponding reduction in the disqualification period from 44 months to 38 months.