Kabiria [2019] EWCA Crim 883

R v Kabiria [2019] EWCA Crim 883 was an appeal to the Court of Appeal (Criminal Division) heard by Mrs Justice Simler and the Recorder of London, His Honour Judge Hilliard QC, which allowed the appeal in part, reducing the period of disqualification from driving but leaving the custodial sentence undisturbed.

Mr Kabiria had pleaded guilty before magistrates to dangerous driving contrary to section 2 of the Road Traffic Act 1988, using a motor vehicle without insurance, and driving otherwise than in accordance with a licence. He was committed for sentence to the Crown Court at Oxford, where on 1 March 2019 Mrs Recorder Campbell sentenced him to six months’ detention in a young offender institution for dangerous driving, imposed no separate penalty for the other offences, endorsed his licence, and disqualified him from driving for five years and three months until an extended driving test was passed. The disqualification period had been amended following an indication by the Registrar that an extension period reflecting the custodial term was required. The appellant, then aged 19 but 18 at the time of the offences, held only a provisional licence and had no previous convictions.

On 15 August 2018 at about 3.30 pm Mr Kabiria was driving an Audi Quattro towards Oxford city centre. The vehicle attracted police attention when automatic number plate recognition cameras indicated cloned number plates. Officers in a marked police car followed cautiously and alerted a police helicopter and other units. When the appellant’s vehicle pulled out it sped off and officers lost sight of it, though another police car later located it and the original marked car caught up in traffic and pulled alongside. Far from stopping, Mr Kabiria reversed his vehicle, narrowly missing a car behind him whose learner driver appeared petrified. He then drove forward and mounted the pavement in Old Road near a bus stop, driving along it at speed. Members of the public on the pavement were forced to get out of the way, though the vehicle was not driven at them. Police decided not to pursue because of the risk to the public. The vehicle remained on the pavement for some distance, attempting to undercut traffic, before rejoining the road and narrowly avoiding another vehicle as it turned into Woodford Lane. It was driven towards Cowley Road at excessive speeds of 70 mph in a 50 mph area and 50 mph in a 20 mph area, and went through a red traffic light. Eventually Mr Kabiria parked the vehicle, ran into a Tesco store on Cowley Road in an attempt to evade arrest by mingling with shoppers, then left through the rear where officers pursued and detained him. The Audi was later confirmed to have been stolen in a house burglary in Essex. In interview Mr Kabiria said that someone had lent him the vehicle and he did not know it was stolen, but he answered no comment to questions about his driving.

A short-form pre-sentence report assessed Mr Kabiria as at low risk of reoffending but medium risk of harm to the public given the manner of his driving. The author considered him suitable for a community sentence with work on the impact of offending and how to avoid further offending if the court felt able to pass such a sentence, and assessed him as vulnerable in custody. He was unemployed but assisted his mother with her caring job. He had previously attended Oxford College playing football but had stopped after an injury when his father did not want him to continue. Miss Turudija-Austin, appearing for Mr Kabiria, submitted in mitigation that the driving lacked some aggravating features found in other cases, such as intoxication or actual harm or damage. He had accepted responsibility, expressed remorse, and pleaded guilty at the earliest opportunity. He had borrowed the car and panicked when the police pulled alongside because he knew he had no licence. He was young, of good character, had obtained a provisional licence in early 2018, had been taking driving lessons, and should be given an opportunity to re-evaluate his thinking and attitudes in the programme recommended by the Probation Service.

The Recorder in sentencing described the driving as so dangerous and so bad, observing that it was by luck and chance that nobody was severely injured or killed. Although she did not say so expressly, it appeared to the Court of Appeal that by passing no separate penalty for the insurance and licence offences she treated them as aggravating features of the dangerous driving charge. She took a notional sentence after trial for a more mature adult of 15 months’ custody, reduced that to ten months giving full credit for the guilty pleas, then reduced it further to six months to reflect the appellant’s mitigation and immaturity. She observed that given the nature of the driving it was not appropriate to suspend the sentence.

On appeal Miss Turudija-Austin advanced three principal grounds. First, the Recorder had taken too high a starting point for the immediate custodial sentence. Secondly, she had erred in failing to adopt the recommendations of the pre-sentence report. Thirdly, the period of discretionary disqualification was too long. There was no definitive sentencing guideline for dangerous driving in the Crown Court, so it was necessary to focus on the features of culpability and harm present in the case in order to assess whether the immediate custodial sentence was proper.

The Court of Appeal held that this was a bad case of dangerous driving which took place over approximately 15 minutes. The driving continued in a dangerous manner at high speeds, including travelling on the pavement for a significant distance, driving through a red traffic light, and reversing in such a way as to come close to colliding with another vehicle. There was an obvious risk of injury to others, both pedestrians who had to get out of the way and other drivers. The Recorder was entitled to regard as serious aggravating features the fact that the appellant had no full driving licence and no insurance, thereby increasing the sentence on the dangerous driving offence. Against those matters the Recorder had to take into account that no one was in fact injured, no damage was caused and, significantly, the appellant was relatively young and had no previous convictions. The Recorder correctly gave full credit for the guilty pleas. Given that the maximum sentence for dangerous driving was two years’ imprisonment, there was a comparatively broad band of conduct representing the most serious offending within the ambit of the offence which justified a sentence after trial at or near the statutory maximum. The Recorder had not taken a sentence at or near the maximum but rather 15 months’ custody for a mature adult before reducing it to reflect the appellant’s personal circumstances and mitigation. Although the Recorder ought properly to have reduced the notional sentence of 15 months to reflect age before giving credit for the guilty pleas, the resultant sentence of six months’ detention was neither wrong in principle nor manifestly excessive. Notwithstanding the mitigation available, the Recorder was amply entitled to conclude that the dangerous driving justified an immediate sentence of six months’ detention and that appropriate punishment could only be achieved in that way.

The Court of Appeal did, however, consider that there was greater force in the challenge to the discretionary disqualification period. The appellant had no previous convictions and no record of bad driving. He would be required to take and pass an extended driving test before he could drive lawfully in the future. In the circumstances the discretionary period of disqualification was significantly longer than was necessary and proportionate. The court therefore allowed the appeal to a limited extent, quashing the period of disqualification imposed below and substituting a period of 21 months, comprising a discretionary period of 18 months and an extension period of three months pursuant to section 35 of the Road Traffic Offenders Act 1988. That reduced period of disqualification would run from 27 December 2018 and the appellant would be required to take and pass an extended driving test. In short, the appeal succeeded only as to the length of disqualification, which was reduced from five years and three months to 21 months, but the six-month detention sentence remained unaltered.