Ross Middleton [2019] EWCA Crim 663

R v Ross John Middleton [2019] EWCA Crim 663 was an application for leave to appeal against sentence refused by the Court of Appeal (Lord Justice Simon, Mr Justice Sweeney and His Honour Judge Sloan QC, the Recorder of Newcastle, sitting as a judge of the Court of Appeal).

Mr Middleton pleaded guilty on 6 June 2018 at Winchester Crown Court to possession of a Class B controlled drug, cannabis. On 15 October 2018, the day fixed for trial, he pleaded guilty upon re-arraignment to causing serious injury by dangerous driving on a written basis accepting that he had smoked cannabis the night before, that his blood sample showed THC-acid in his bloodstream, and that he did not know whether the drug or tiredness had affected his driving. On 8 November 2018 His Honour Judge Barnett sentenced him to one year and eight months’ imprisonment with a 70-month disqualification comprising five years plus a ten-month uplift. No separate penalty was imposed for the cannabis possession. Mr Middleton was also required to take an extended re-test. He had one previous conviction in 2004 for driving with excess alcohol, for which he was fined and disqualified for sixteen months reduced by four months on completion of a rehabilitation course.

On 3 November 2017 at around 8.45pm the victim, Mr Steven Ballard, aged 61, was cycling along a virtually straight, unlit stretch of the A33 near Basingstoke towards the Wheatsheaf Hotel. Conditions were fine and dry with clear visibility. Mr Ballard wore a helmet and reflective clothing and his bicycle had high quality front and rear lights. He was a cautious and regular cyclist with twenty years’ experience cycling in that area. Mr Middleton was driving in the same direction in his wife’s black Ford Fiesta when he struck the rear of Mr Ballard’s bicycle from behind with the nearside wing of the Fiesta. The impact buckled the rear wheel and threw Mr Ballard off the bicycle down an embankment where he came to rest in bushes in a ditch. He had suffered a broken pelvis requiring plates and screws, a broken lower vertebra, a severe laceration to his leg and multiple cuts and abrasions. Although Mr Middleton clearly knew he had hit someone, he did not stop. He drove on for approximately 0.8 of a mile past the well-lit Wheatsheaf Hotel, then pulled over into an unlit layby. CCTV footage from a kebab van parked in the layby showed Mr Middleton getting out and checking the substantial damage to the car. He then returned to the crash scene where there was an obvious trail of debris in the road. He drove just under one third of a mile to Popham Court Lane, a side road off the A33, where he deposited the car in the entrance to a field and walked back to the crash scene. Mr Ballard was still lying in the ditch. About seven minutes had elapsed since the crash. Mr Middleton then called an ambulance and remained at the scene until an emergency paramedic crew arrived. He pretended to the paramedics that he was a pedestrian who had stumbled across Mr Ballard.

Mr Middleton was walking away from the scene when the police arrived. An officer, having spoken to paramedic personnel, ran after him and caught up with him. He immediately noticed the smell of cannabis and that Mr Middleton appeared confused and was unsteady on his feet. Mr Middleton lied to the officer, saying that he had been walking from his house in Kings Worthy when he had chanced across Mr Ballard and dialled 999. The officer was immediately sceptical of this story due to the distance from Kings Worthy to the scene and suspected that Mr Middleton had hit Mr Ballard and that his car was parked nearby. The officer arranged for other officers to search for the car and the Fiesta was duly found. Mr Middleton was arrested at the scene for driving whilst impaired through drugs. He failed impairment tests and was later found to have traces of both cocaine and cannabis in his blood. The cannabis the subject of count two was found on his person. In police interview Mr Middleton admitted that he had been driving the Fiesta and that he had hit Mr Ballard. He said that he had attempted to overtake him. That explanation did not fit with the examination of the Fiesta and the bicycle, which showed that the Fiesta had hit the bicycle squarely in the rear.

Mr Ballard was in hospital for eleven days. He only remembered setting off for the pub on the Friday evening with his lights on. His next memory was waking up in hospital the following day. He spent six weeks on crutches and was still undergoing weekly physiotherapy at the time of sentencing. Four months after the accident he indicated in a statement that he had not worked since the accident, suffered from double vision, could no longer drive, could not stand fully upright, and found it difficult to read and write. In an update eleven months after the accident he indicated that he still had double vision and thus still could not drive, had difficulty reading, writing and using a computer, and that he had lost a lot of agility and some sense of balance, a lot of feeling on the left side of his body, and deterioration in his hearing.

The prosecution invited the judge to take into account the Definitive Guideline in relation to causing death by dangerous driving, together with the very profound effect of the offence on the victim, who was a vulnerable cyclist, and Mr Middleton’s actions in the immediate aftermath. The pre-sentence report recorded that Mr Middleton had told the author that he had felt under pressure around the time of the offences as he was holding down two jobs. He had bought cocaine and cannabis from old friends in order to relax and unwind. Mr Middleton had been unable to give an explanation as to why he had not seen the victim sooner, but when pressed he had accepted that his previous cannabis use may have affected his judgment, albeit that he insisted that he would not have driven if he had thought that he was still under the influence. The author observed that there was telephone evidence which showed that Mr Middleton had made and received calls during the relevant period and that it was possible that he had thereby been distracted. Mr Middleton had expressed remorse and had demonstrated victim empathy. He was assessed as presenting a low risk of re-offending, but a medium risk of harm to the public. The author recognised that the custodial threshold had been crossed but opined that if the court was considering an alternative to an immediate custodial sentence, consideration of a Community Payback Requirement of 180 to 200 hours might be appropriate. There were six character references, from Mr Middleton’s wife, sister and others, which spoke highly of him, of his remorse and of the reliance of others upon him. Mr Middleton, who with his wife has two young children, wrote to the judge himself expressing his apologies to Mr Ballard and his remorse. He explained the effect that the loss of his licence had had upon him and invited the judge to impose a suspended sentence.

In passing sentence, the judge rehearsed the facts. He underlined Mr Middleton’s drug consumption prior to driving and his short-lived attempt to avoid responsibility, albeit that he was the one who had summoned help. As to aggravating features, the judge recognised that Mr Middleton’s conviction for driving when under the influence of alcohol had been some time before, but still took it into account to some extent. He further recognised that there was no Definitive Guideline in relation to the offence in count one and that the sentences imposed for causing death by dangerous driving involved a greater maximum sentence of fourteen years’ imprisonment, whereas the maximum for the offence in count one was five years’ imprisonment. Having balanced out the aggravating and mitigating features, with the latter including Mr Middleton’s otherwise good character and other features that did him proud, the judge identified a notional sentence after trial of two years’ imprisonment, reduced after discount for the late guilty plea to twenty months’ imprisonment. He could not, he said, reduce it lower than that. He had considered long and hard whether, as implored by Mr Middleton’s counsel, he could suspend that sentence; but in view of the gravity of the offence and its aggravating features, he had concluded that he could not do so.

On paper there were, effectively, three grounds of appeal, namely, that the judge erred in having regard to the Definitive Guideline in relation to offences of causing death by dangerous driving and in thereby wrongly inflating the sentence; in giving too much weight to Mr Middleton’s previous conviction; and in failing to apply the Definitive Guideline on the Imposition of Community and Custodial Sentences when deciding whether the term of imprisonment imposed should be immediate or suspended. Miss Bright, on Mr Middleton’s behalf, concentrated on the first and third of those grounds.

The court dealt with the first ground shortly. In a number of cases, beginning with R v Dewdney [2014] EWCA Crim 1722, [2015] 1 Cr App R(S) 5, and R v Jenkins [2015] EWCA Crim 105, [2015] 1 Cr App R 70, the Court of Appeal has indicated that it is appropriate for a judge, when sentencing for an offence of this type, to have in mind the Definitive Guideline in relation to causing death by dangerous driving, provided that it is clearly understood that cases of this type do not involve a death and involve a maximum sentence which is significantly below the maximum sentence which applies in relation to causing death by dangerous driving. A recent example of a case in which those authorities and the approach indicated in them have been followed was R v Naher [2018] EWCA Crim 29. Accordingly, it was clear that, in principle, the judge was entitled, as invited by the prosecution, to consider the causing death by dangerous driving guideline. Miss Bright submitted, nevertheless, that in the particular circumstances of this case he was in error in doing so. The court disagreed. The judge was plainly entitled to take the course that he did, the more so as he specifically recognised the significance of the difference in penalty between the two offences. Accordingly, it was not arguable that he erred in principle in that regard; nor, indeed, that that in any way inflated the sentence. Equally, there was no arguable merit in the second ground.

The court therefore turned to the third ground, the suggestion that the judge failed inappropriately to take into account the Definitive Guideline on the Imposition of Custodial Sentences and in particular to perform the balancing exercise set out therein. This was an extremely experienced criminal judge, but it was correct that he did not express himself in the terms of the balance mandated in the guideline. Accordingly, the court proposed to test whether this ground was arguable by conducting the exercise required by the guideline afresh. Miss Bright pointed out that the guideline mandated consideration of a balancing exercise requiring the balancing, on the one hand, of factors indicating that it would not be appropriate to suspend a custodial sentence, namely, whether the offender presents a risk or danger to the public, whether appropriate punishment can only be achieved by immediate custody, or whether there is a history of poor compliance with court orders; and, on the other hand, the factors indicating that it may be appropriate to suspend a custodial sentence, namely, that there is a realistic prospect of rehabilitation; that there is strong personal mitigation; and that immediate custody will result in significant harmful impact upon others. Miss Bright submitted that Mr Middleton did not present a risk or danger to the public, as his risk of re-offending was assessed as being low by the author of the pre-sentence report. Nor, albeit that he had the previous conviction in 2004, did Mr Middleton have a history of poor compliance with court orders. Miss Bright realistically accepted, however, that the remaining factor was engaged, namely the question, which clearly weighed significantly with the judge, given the terms of his sentencing remarks, of whether appropriate punishment can only be achieved by immediate custody.

On the other side of the balance, Miss Bright submitted that there was a realistic prospect of rehabilitation; that there was strong mitigation to the extent that Mr Middleton was aged 37, a married man with two young children, of previous effective good character other than the one matter in 2004; that he was self-employed; that he was responsible for others; and that both the letter which he wrote to the sentencing judge and the letters which were written on his behalf together presented a picture of genuine remorse, of fulsome apology and of general decency of behaviour which ought to weigh strongly in the balance. As to the third factor of significant harmful impact to others, there was reference in the pre-sentence report to the possibility of Mr Middleton’s wife and children losing their accommodation as a result of his incarceration, but it was clear from what Miss Bright now told the court that that had not come to pass and was not, at least at the moment, a strong possibility. Miss Bright submitted that it was plainly arguable that each factor on the side of the scales in favour of suspending the sentence had considerable weight in Mr Middleton’s favour.

The court, however, had to weigh that against the single factor weighing against a suspended sentence, namely, that appropriate punishment can only be achieved by immediate custody. This was undoubtedly a very serious offence of its type. Mr Middleton drove whilst significantly impaired when he had a previous conviction for driving under the influence of alcohol. He drove straight into the back of the victim, who was clearly highly visible, and he drove off initially, although he knew that there had been a collision. When he returned, albeit having summoned help, he tried initially to avoid his responsibility. Not only was the driving of a very seriously dangerous type, it would equate to level two in the guideline for causing death by dangerous driving. There had been very considerable and serious consequences for the victim. He suffered very serious injuries which required substantial hospitalisation. He had suffered ongoing effects of a life-changing variety, in particular, in the limitation of his life to what it was previously, both at work and at home. Therefore, it seemed to the court that, carrying out the requisite balancing exercise, the weight in the factor that appropriate punishment can only be achieved by immediate custody significantly outweighed the combined weight of the three factors weighing in favour of suspension. In those circumstances, it seemed to the court that, even if it was correct that the judge failed to conduct the balancing exercise or certainly only referred to having done so in the most cryptic terms, when the exercise was appropriately carried out, the result of it was clear and all one way, namely, that in this case it would not be appropriate to suspend the custodial term. Accordingly, there being no dispute with the length of the term itself, the court concluded that this ground was also unarguable.

In short, the court dismissed Mr Middleton’s application for leave to appeal against sentence, holding that the sentencing judge had been entitled to have regard to the causing death by dangerous driving guideline and that a sentence of immediate custody was inevitable given the serious dangerous driving, the previous conviction, the attempt to avoid responsibility and the very serious, life-changing injuries sustained by the victim.

Dewdney [2014] EWCA Crim 1722, [2015] 1 Cr App R(S) 5
Jenkins [2015] EWCA Crim 105, [2015] 1 Cr App R 70
Naher [2018] EWCA Crim 29

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