Siobhan Harper [2019] EWCA Crim 833
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In **R v Siobhan Harper** [2019] EWCA Crim 833, the Court of Appeal (Lady Justice Nicola Davies, Mr Justice Spencer and Mr Justice Morris) dismissed an appeal against a sentence of 20 months’ imprisonment for causing serious injury by dangerous driving, save for a technical adjustment to the disqualification order.
Ms Harper had pleaded guilty to dangerous driving (count 1), causing serious injury by dangerous driving (count 2), and driving with excess alcohol. Mr Recorder Lennard at the Crown Court at Aylesbury had sentenced her on 15 February 2019 to 20 months’ imprisonment on count 2 (with 15 per cent credit for a late plea), eight months’ concurrent on count 1 (to which she had pleaded guilty at an earlier stage), and three months’ concurrent for excess alcohol. She was also disqualified from driving for three years and ten months. Ms Harper was aged 33 at the date of sentence.
On 3 February 2018 Ms Harper had driven a Honda car in Milton Keynes while nearly two-and-a-half times over the legal alcohol limit, having consumed vodka. A passenger, her ex-partner, was in the car. A member of the public alerted police because Ms Harper was weaving on and off the road, onto grass verges and pavements, swerving around trees. This dangerous driving continued for about ten minutes. An 18-year-old cyclist, Cristin Dohotaru, was standing on a cycle path next to the carriageway, having stopped to send a text message on his way home from work. The Honda mounted the pavement and struck him from behind. He lost consciousness briefly and on coming round saw that the driver had wound down the window and was laughing at him. He sustained broken nasal bones, lost his two upper front teeth completely (later successfully re-implanted), and suffered abrasions, lacerations and a haematoma to the forehead. By the time police arrived Ms Harper had left the vehicle and was nearby holding a bottle of vodka. She lied to officers, denying that she had been driving. She maintained that lie in interview and in her defence statement, admitting only at a late stage that she had been the driver and had struck the cyclist. At the police station her breath-alcohol reading was 85 micrograms per 100 millilitres.
The victim impact statement described the injuries as horrible. The cyclist had been unable to breathe through his nose for a week, found eating very painful, missed school during an important examination period, and lost his part-time job. He had lost confidence crossing or walking alongside roads. The prognosis was that root canal treatment would be required and, if his teeth did not grow back properly, he would face the considerable expense of dental implants.
Ms Harper was of previous good character, save for two cautions. A pre-sentence report noted that she was a single parent to two children, a son aged 11 and a daughter aged 13, whose father played no part in their lives. She worked as a hairdresser. She explained that on the night in question she had been giving her ex-partner a lift after cutting her hair, that they had stopped at a public house where she drank vodka, and that she continued drinking from a bottle while driving. She said an argument developed and she decided to go off-roading. She claimed to have no recollection of hitting the cyclist and denied laughing at him. She had been drinking on top of sleeping tablets, Zopiclone. The report detailed other problems: a gambling addiction, recent anxiety over her mother’s cancer diagnosis (later cleared), care responsibilities for her brother’s child, a stormy and traumatic relationship with her ex-partner, and her son’s congenital facial abnormality. Arrangements had been put in place for the children to be cared for by the appellant’s mother in the North of England should custody follow. There was a recommendation for a community order with an unpaid work requirement and other requirements.
The Recorder described the driving as disgraceful and shameful, the act of an irresponsible and immature individual with no regard for the consequences for others, including her own children. He concluded that an immediate custodial sentence was necessary despite the disruption to the children, for which he held Ms Harper wholly liable. He adopted the Sentencing Council guideline for causing death by dangerous driving and identified the offence as level one, involving prolonged very bad driving and gross impairment through alcohol. He determined an appropriate range after trial of two to two-and-a-half years’ custody and selected a starting point of two years, at the bottom of that range. After 15 per cent credit for plea, he imposed 20 months’ imprisonment. He expressly considered the decision in Petherick [2012] EWCA Crim 2214 but concluded that he could not suspend the sentence.
On appeal, Mr Gavin Holme for Ms Harper did not challenge the length of the custodial term but submitted that the Recorder should have suspended it having regard to her personal mitigation and the effect of immediate custody on her dependent children. He relied on the fact that relocation to the North of England would take the children away from school, friends and day-to-day activities, on her son’s health issues, on the likelihood of losing the family home, and on the difficulties Ms Harper had experienced in the six months before the offence, including a miscarriage and domestic violence. He submitted that she had come to terms with many of these problems by the time of sentence. The Single Judge had noted that the Recorder made no express reference in his remarks to the Sentencing Council guideline on the imposition of community and custodial sentences or to the factors relevant to suspension, though Mr Holme confirmed that he had been referred to both that guideline and to Petherick at the hearing below. A brief pre-appeal report indicated that Ms Harper had settled well in custody, was working full-time in the prison hairdressing salon, and had shown remorse. A letter from the appellant’s mother and a letter from her daughter showed that both children had been adversely affected by the separation, though Mr Holme informed the court that the children had settled better than expected and that the long-term plan was for Ms Harper to move with the children to the North of England when released.
Mr Justice Spencer, giving the judgment of the court, held that the sentence of 20 months’ immediate imprisonment was neither wrong in principle nor manifestly excessive. The Recorder had been correct to have regard to the guideline for causing death by dangerous driving to identify the appropriate level of offending. This was undoubtedly a level one offence involving prolonged, deliberate very bad driving aggravated by substantial consumption of alcohol leading to gross impairment. The maximum sentence for causing serious injury by dangerous driving is five years’ imprisonment, as compared to fourteen years for causing death by dangerous driving, and that distinction, underlined in a number of authorities, meant that the bands of sentencing for the lesser offence would necessarily be compressed. Allowing for all of Ms Harper’s personal mitigation, the starting point of two years after trial, reduced to 20 months, was entirely justified. Dangerous driving of this seriousness causing injury and aggravated by alcohol would normally attract a significantly higher sentence.
As to suspension, the court held that although the Recorder did not refer in terms to the guideline, it was perfectly plain that he had the relevant factors well in mind. He had balanced the factors for suspension, namely a realistic prospect of rehabilitation, strong personal mitigation and significant harmful impact on the children from immediate custody, against the key factor that appropriate punishment could only be achieved by immediate custody. He had contrasted that finding with the harmful impact on the children and had referred specifically to Petherick. That decision recognised and emphasised that the likelihood of interference with family life inherent in a sentence of imprisonment being disproportionate is inevitably progressively reduced as the offence is the graver. This was a very serious offence. As the Recorder rightly said, Ms Harper could easily have killed herself, her passenger or any member of the public that night; in the event she ran down and seriously injured an innocent member of the public. He rightly observed that it was Ms Harper and no one else who was responsible for the adverse impact of her imprisonment on the children, given that she had grossly neglected her responsibilities as a mother in embarking on the extended drunken escapade. All the mitigation that could properly be advanced had been fully reflected in the comparatively modest period of custody imposed, and it had to be immediate imprisonment.
The court did, however, identify a technical matter raised by the Registrar concerning disqualification from driving. The Recorder had correctly applied section 35A of the Road Traffic Offenders Act 1988 in imposing a total disqualification of three years and ten months on counts one and two, comprising the mandatory two years for the offence of causing serious injury by dangerous driving, extended to three years because of the seriousness of the offence, plus ten months representing one-half of the custodial term. However, he had not imposed any separate disqualification for the offence of driving with excess alcohol, which also carried a mandatory disqualification of twelve months, and no special reasons had been found. The court redressed this by imposing a concurrent disqualification of 22 months for the excess alcohol offence, comprising the mandatory twelve months plus ten months representing one-half of the custodial term. As this did not lengthen the overall period of disqualification there was no question of infringing section 11(3) of the Criminal Appeal Act 1968 and Mr Holme took no issue. To achieve this it was necessary formally to allow the appeal to the very limited extent of quashing the sentence for excess alcohol and substituting a sentence of three months’ imprisonment and a 22-month disqualification. In short, the appeal was allowed only to correct a technical deficiency in the disqualification order, the sentence of immediate imprisonment being upheld as entirely appropriate.