Hastings [2018] EWCA Crim 2457

R v Hastings [2018] EWCA Crim 2457 was an appeal to the Court of Appeal (Criminal Division) before Lady Justice Hallett, Mr Justice Stuart‑Smith and Sir Roderick Evans, in which the court allowed an appeal against sentence for causing death by dangerous driving and reduced the custodial term from four years to three years and four months.

Mr David Robert Hastings, a professional lorry driver of previous good character, pleaded guilty on 8 March 2018 at the Central Criminal Court before His Honour Judge Farrell QC to causing death by dangerous driving. He was sentenced to four years’ imprisonment, disqualified for three years with a two‑year extension and ordered to take an extended retest. The appellant had held a valid driving licence since 1990, qualified as a heavy goods vehicle driver in 2007 and obtained a class 1 HGV licence in 2016.

On 16 December 2016 at approximately 3.20 pm the appellant was driving a Mercedes Axor goods vehicle (cab only, no trailer) on Fulham High Street in London. A power cut had disabled traffic signals and the pelican crossing at the junction with New King’s Road, causing significant congestion. The victim, Mr Goodison, aged 84, was waiting at the pelican crossing to cross the road. CCTV footage from inside the appellant’s cab showed that as he approached the crossing he took a mobile telephone from his pocket and answered a call from his employer, holding the handset to his right ear. The call continued for approximately two minutes while the vehicle moved slowly forward in queuing traffic. During the call the appellant could be seen twice with no hands on the steering wheel, one hand holding the phone and the other raised in the air as if stretching.

The appellant moved into the nearside lane closest to the kerb where the queue was shorter and stopped at the back of the queue. Mr Goodison remained by the kerbside and began to cross the road as the lead vehicles moved off. The appellant followed, moving across the bicycle waiting area. The deceased would have been visible to the appellant for at least 35 seconds as the vehicle moved to the halfway point of the bicycle waiting area. The appellant then stopped his vehicle on the stud line of the pedestrian crossing. Because he was so close to the stud line the deceased would not have been visible through the windscreen, but would have become visible in the kerbside and front view mirrors as he stepped into the road at 3.25.42 pm. The appellant glanced to his left for approximately one second, insufficient time to check all four mirrors fitted to the kerbside of the lorry. As the deceased stepped into the road the appellant had his head turned to the right, still talking on his mobile telephone. The appellant moved the lorry forward one second after Mr Goodison stepped into the road at an average speed of twelve miles per hour.

The lorry almost immediately connected with the deceased, pushing him across the crossing and crushing him to death. He was dragged under the passenger side front wheels. The appellant, realising something had occurred, stopped the vehicle, placed the mobile telephone first in his lap and then on the central console before getting out of the cab. He waited at the scene and cooperated with police officers. Paramedics from the London Ambulance Service and London Air Ambulance arrived within 20 minutes but Mr Goodison was pronounced dead at the scene at 3.59 pm. Neither the appellant nor the deceased had alcohol or drugs in his system. The vehicle had no defects and the mirrors were properly aligned. The appellant’s eyesight was compliant with regulations and he had complied with the relevant EU regulation as to driving hours. There was a delay in bringing the case to trial because of the extent of the investigation, reconstruction of sightlines and obtaining CCTV footage.

The sentencing judge applied the definitive guideline produced by the Sentencing Guidelines Council and placed the offence at level 2, for driving that creates a substantial risk of danger, with a starting point of five years’ custody and a range of four to seven years. The judge identified as factors leading to level 2 categorisation the use of the mobile telephone (a criminal offence in its own right), the failure to have proper regard for vulnerable road users at a crossing where the lights were not working and greater care was required, the failure to use mirrors before moving off as required by the Highway Code and other guidance, and stopping in a place he should not have stopped rather than waiting for a clear route through the crossing. The judge then made an upward adjustment to reflect the fact that the appellant was a professional driver driving a large vehicle in potentially dangerous circumstances, reaching a figure of six years before reduction for the guilty plea.

Mr Christopher Martin, appearing for the appellant, challenged the level 2 categorisation and contended that level 3 was appropriate, with a starting point of three years and a range of two to five years. He conceded the judge might have been entitled to find aggravating features took the case into level 2 but did not accept it then took the case beyond the starting point of five years. Mr Martin accused the judge of double counting, claiming he reached level 2 only by factoring in all aggravating factors including that the appellant was a professional lorry driver driving a heavy goods vehicle, but then made an upward adjustment from the starting point for the same fact. He submitted that being a professional driver was not listed as an aggravating feature in the definitive guideline. In response to questioning from the court Mr Martin claimed the judge made little or no allowance for the mitigation of good character and remorse despite expressly mentioning it, since the judge reached six years from the starting point of five years having factored in both aggravating and mitigating factors, which meant he must have reached a figure of over six years before making any allowance for the powerful mitigation. Character references from family, friends and work colleagues indicated the appellant’s remorse was utterly genuine and that the accident had changed him fundamentally from a happy, supportive, decent and trustworthy man to one who was morose and depressed and had required counselling.

The Court of Appeal agreed with the judge that the combination of factors justified placing the offence in level 2. The court understood Mr Martin’s argument that there may have been a small element of double counting in that it was the overall nature of the appellant’s driving of a heavy goods vehicle, including not using the special mirrors fitted to that kind of vehicle, that placed it in level 2. However, the court held that some upward adjustment was required to reflect all the factors. It was relevant and significant that the appellant had been trained and was very experienced in driving a heavy goods vehicle. He knew the additional risks involved in driving a large vehicle with limited visibility and why he should at all times avoid distractions and use his mirrors before moving off. If he made a mistake the consequences were likely to be, and in this case sadly proved to be, disastrous. He was also aware of the general risks involved in approaching a crossing where he might encounter other vehicles, pedestrians, motorcyclists or cyclists, and must have known that risk was substantially increased where the lights had failed and there was heavy congestion. Nonetheless he answered a telephone call and stayed on the telephone for approximately two minutes, on two occasions with no hands on the steering wheel and the rest of the time with just one hand on the steering wheel. He continued to move forward and failed to check his mirrors properly before doing so.

For all those reasons, having placed the offence in level 2, the court took the starting point of five years and made an upward adjustment to reflect the overall seriousness of the offence and all the aggravating features. The court then turned to the personal mitigation, which was powerful, bearing in mind (as Mr Stott for the prosecution invited the court to do) that the guidelines are directed at a first‑time offender. The appellant had a positive good character, an excellent driving record, his remorse was undoubtedly genuine and the impact of his offending would be with him for a very long time to come. In the court’s view these factors balanced out the aggravating features that would otherwise take the offence beyond the five‑year starting point. The court therefore took the figure of 60 months, from which a third was deducted to reflect the timely guilty plea, giving a figure of three years and four months. The court judged that a reduction of eight months was a significant reduction for a man of this kind and meant that proper regard had been paid to all the principles expressed in the definitive guideline.

In short, the Court of Appeal allowed the appeal and reduced the sentence from four years’ imprisonment to three years and four months, holding that the powerful personal mitigation balanced out the aggravating features that would otherwise have taken the offence beyond the starting point of five years for a level 2 categorisation.