Kahar [2018] EWCA Crim 2522

Regina v Mohammed Kahar [2018] EWCA Crim 2522 concerned an appeal against sentence imposed by the Crown Court at Snaresbrook for dangerous driving. The Court of Appeal (Criminal Division) dismissed the appeal.

Mr Kahar was convicted after trial on 28 June 2018 of dangerous driving contrary to section 2 of the Road Traffic Act 1988. On 5 July 2018 he pleaded guilty to two summary offences: driving without a licence and driving without insurance. He was sentenced to twelve months’ detention in a young offender institution for the dangerous driving, with no separate penalties for the other offences. The court ordered disqualification for eighteen months from 28 June 2018 (the date of an interim disqualification) continuing until he passed an extended driving test. He appealed against sentence with leave of the single judge, having failed to renew an application for leave to appeal against conviction.

On 18 December 2017 at approximately 1 a.m., police on routine patrol in a marked car received information about a stolen Volkswagen Golf. They stopped a white VW and asked the driver to answer a few questions. The driver, later identified as Mr Kahar, drove off at high speed instead. He had neither a driving licence nor third party insurance. The officers activated blue lights and a siren and gave chase through residential streets subject to a 30 mph speed limit. The effective width of these roads was reduced over many sections by parked vehicles. Dash cam footage showed Mr Kahar travelling at speeds between 70 and 80 mph and overtaking other vehicles. He was plainly aware that the police were pursuing him. In an attempt to escape, he mounted a pavement and sped along it between parked cars. He then drove on the wrong side of the road, causing oncoming cars to take evasive action. A bus heading towards him had to take evasive action, an incident the judge described as terrifying to see. The police followed Mr Kahar until they lost sight of the car, then drove around the area searching for him. When they found the car, Mr Kahar jumped out and ran off. More officers arrived to assist and Mr Kahar was caught and arrested. The issue at trial was mistaken identity; Mr Kahar contended that he had not been the driver.

Mr Kahar was born on 31 December 1998, so was almost nineteen years old at the time of the offence and nineteen and a half when convicted. He had no previous convictions, but four months after the index offence he was convicted of driving without a licence and whilst uninsured again. In the pre-sentence report, Mr Kahar maintained that the dangerous driving had been a case of mistaken identity and that he had only been a passenger in the car. He claimed that when all the occupants ran off he had been unable to get away because he was wearing a knee brace. The author assessed a medium likelihood of re-conviction and proposed a community order with an unpaid work requirement.

The sentencing judge noted that thankfully nobody had been injured by Mr Kahar’s persistent and dangerous conduct, but undoubtedly it must have been terrifying for the drivers of oncoming cars to face his car on the wrong side of the road. She concluded that the offence passed the custody threshold and that only an immediate custodial sentence was appropriate. It was a persistent course of driving at excessive speeds through residential streets and driving head-on towards oncoming traffic. After taking Mr Kahar’s age and mitigation into account, the judge sentenced him to twelve months’ detention.

In the grounds of appeal, it was submitted first that the sentence ought to have been suspended given Mr Kahar’s personal mitigation, age, and case law on immaturity and the applicability of the youth sentencing guidelines. That aspect was not pursued before the Court of Appeal. Secondly, in the light of R v O’Connor [2012] EWCA Crim 785, it was submitted that the length of the sentence was manifestly excessive given that there had been no serious aggravating features such as a collision and Mr Kahar had not been under the influence of alcohol or drugs.

Holgate J, giving the judgment of the court, referred to R v Clarke [2018] EWCA Crim 185, in which Lord Burnett of Maldon LCJ had re-emphasised that attaining the age of eighteen is not to be treated as a cliff-edge event for sentencing purposes, as people mature beyond their eighteenth birthdays and at different rates. However, in this case the pre-sentence report did not suggest that Mr Kahar was immature in relation to his age and there was no other evidence before the court to suggest otherwise. The judge, who had the advantage of seeing Mr Kahar during the trial, took into account his age at the time of the offence.

The court considered O’Connor, Lauciskis [2015] EWCA Crim 2185, and Kilara [2012] EWCA Crim 2110 (to which the single judge had referred). The court noted that none of these decisions were guideline cases and should not be treated as such, and that detailed comparisons with such decisions are inappropriate. However, in Kilara the court stated that the range for a single offence of the kind involved there is well-settled, namely three to twelve months after a trial. In that case the offender had driven along residential roads at speeds over 50 mph where the speed limit was 30 mph. No alcohol was involved and no collision or damage occurred. The car was insured and the offender had a licence. Nonetheless, the court stated that a starting point of twelve months’ imprisonment for an adult would have been appropriate.

The court held that in the present case there was a prolonged, persistent and deliberate course of very bad driving in a residential area at speeds approaching 80 mph on roads where traffic was restricted to 30 mph. Although no collision took place and no damage was caused, Mr Kahar either chose to ignore or showed a flagrant disregard for the rules of the road and an apparent disregard for the great danger he posed to other road users. This was made plain by the particularly high speeds at which the car was driven and the various unlawful and dangerous manoeuvres he performed. Mr Kahar drove in this manner in an attempt to escape from the police whom he knew to be chasing him over a substantial period of time. Twice when he was stopped by the police he tried to get away. His offending was further aggravated by the lack of a licence and insurance. The sentence imposed by the judge for someone aged nineteen who had never been in trouble before might perhaps be considered to be severe, but the driving was so dangerous and so sustained in duration that the court did not consider the sentence to be manifestly excessive. Likewise, the offence was so serious that there was no justification for the sentence to be suspended. For these reasons, the appeal was dismissed.

However, the court corrected the form of the disqualification order having regard to R v Needham [2016] EWCA Crim 455. The order was corrected so that it referred to disqualification first for the mandatory period of twelve months from 28 June 2018, the date the interim order was made, and in addition a further period of disqualification for six months pursuant to section 35A of the Road Traffic Act 1988. Beyond that, Mr Kahar may not drive until he passes an extended driving test.

In short, the appeal against sentence was dismissed as the prolonged, persistent and dangerous driving at very high speeds in residential streets, aggravated by the absence of a licence and insurance, fully justified the twelve-month custodial sentence, although the form of the disqualification order was corrected in accordance with Needham.

O’Connor [2012] EWCA Crim 785
Clarke and Others [2018] EWCA Crim 185; [2018] 1 Cr. App. R. (S) 52
Needham and Others [2016] EWCA Crim 455; (2016) 2 Cr. App R. (S) 26; [2016] 1 WLR 4449
Kilara [2012] EWCA Crim 2110
Lauciskis [2015] EWCA Crim 2185