Monington [2018] EWCA Crim 2016
Summary
R v Nathan Monington [2018] EWCA Crim 2016 concerned an appeal against a sentence of two years’ imprisonment imposed by the Crown Court at Cardiff following a guilty plea to causing death by careless driving.
On 16 April 2018 before His Honour Judge Bidder QC Mr Monington pleaded guilty on re-arraignment and was sentenced to two years’ imprisonment. He was also disqualified from driving for a total of five years and until passing an extended retest. Related counts of causing death by driving whilst uninsured and unlicensed were ordered to lie on the file. Leave to appeal against sentence was granted by the single judge.
On 21 February 2017 at about 7.40 pm Mr Monington was driving a Citroen Xsara motorcar on the A4119 westbound in Creigiau with two passengers, Mr Ryan Thomas in the front and Mr Thomas Cody in the rear nearside seat. The road was a single carriageway with one lane in each direction separated by central hazard lines and subject to a 60 mph speed limit. It was dark but illuminated, it had been raining heavily and the road surface was wet. Mr Monington drove through a series of sweeping bends with which he was familiar before arriving at the point of collision. He lost control of the vehicle which crossed into the opposite lane and struck a number of trees on an embankment sloping downwards from the road. The rear nearside of the car where Mr Cody sat sustained severe damage. Mr Monington and Mr Thomas were able to exit the vehicle but Mr Cody was found unconscious and severely injured. Despite CPR administered by a passing doctor and a member of the public, Mr Cody died at the scene aged 24 having sustained bilateral rib fractures, a penetrated left lung and haemorrhaging in both chest cavities. Mr Thomas sustained bruising, small cuts and a shoulder injury. Mr Monington suffered a fractured skull but no brain injury or significant ongoing effects.
Mr Monington was arrested the following day and admitted being the driver but stated he could not remember the collision or driving on the A4119. His blood sample revealed cannabis use below the statutory limit for a driving offence and his breath test for alcohol was negative. Police examination of the vehicle found no defects contributing to the collision. The prosecution expert determined that the collision occurred at a sweeping left bend which then turned right. The car left the road on the offside immediately after the road began to bear right and collided with trees causing it to rotate clockwise whilst sliding down the embankment. The rear nearside impacted a substantial tree adjacent to the offside edge causing the car to spin anti-clockwise and become airborne before colliding with further trees. The force of the rear nearside impact tore the rear axle from its mountings and bent the nearside wheel and hub assembly inwards, indicating a high-speed impact. No marks indicated emergency braking prior to the collision. The expert concluded the collision was caused by excessive speed such that Mr Monington could not negotiate the bend safely. He calculated the maximum speed at which a vehicle could negotiate the bend on the correct side of the road as between 45.47 and 57.96 mph, whilst the safe speed was 32.45 mph. The car was estimated to have been travelling at between 48.8 and 49.9 mph when it began to slide, which the expert emphasised was an underestimate because it did not account for the impact with trees.
Mr Monington held only a provisional driving licence granted in January 2008 and was therefore required to be supervised by a qualified driver, but neither passenger was qualified. The vehicle was a so-called pool car owned by Mr Dean Mitchell and shared among several young males. The court received a victim personal statement from the deceased’s mother Mrs Vicky Cody describing the devastating continuing impact of losing her son. Mr Monington was aged 26 at sentence and had three previous convictions between 2012 and 2015 comprising battery, grievous bodily harm with harassment resulting in a suspended sentence, and further grievous bodily harm with breach of the suspended sentence for which he received two years’ imprisonment in 2015. He was recalled following the commission of the current offence and released on licence in July 2017. The pre-sentence report recorded that he accepted he had not received recent driving tuition and expressed deep regret without minimising his culpability. He was assessed as posing low risk of reconviction and medium risk of harm to the public, though his previous conduct suggested a tendency towards reckless and irresponsible behaviour.
The judge stated that the fact Mr Monington was a provisional licence holder aggravated the offence in that his lack of tuition and experience was an additional contributing factor, although his inexperience could not be treated as mitigation given that he was driving without supervision. The judge found that Mr Monington drove into the bend at a speed substantially too fast for the road conditions and lost control causing the vehicle to slide off and collide with trees. Whilst there was no evidence of prolonged or persistent bad driving and he had not consumed intoxicants above the legal limit or sufficient to impair his driving, the speed at which he took the bend was very obviously greatly excessive. Applying the Definitive Guideline on Causing Death by Driving, the judge concluded this was a case which fell not far short of dangerous driving with a starting point of 15 months’ imprisonment within a range of 36 weeks to three years for an adult first offender convicted after trial. The judge noted there was another passenger who did not suffer serious injury and that Mr Monington suffered some but not serious injury. He accepted genuine remorse was shown. Mr Monington had no driving convictions but had a poor criminal record, had not responded well to community supervision and had committed the offence whilst on licence, though that aggravating feature should not be double-counted given his recall to custody. The guilty plea was not entered at the earliest opportunity as the prosecution expert report had been available and once mechanical defect was excluded there was no defence, but the plea was indicated well in advance of trial warranting 20 per cent credit. The judge determined the appropriate sentence before credit was 30 months and therefore imposed two years’ imprisonment.
Mr Evans on behalf of Mr Monington submitted the sentence was manifestly excessive because the judge erred in treating the driving as falling not far short of dangerous and that the case should have been treated as falling within the second category of other cases of careless or inconsiderate driving. He argued there was no evidence supporting the judge’s categorisation and that Mr Monington had simply misjudged a difficult bend where arguably there should have been a specific warning sign or reduced speed limit. He submitted the actual speed was about 10 mph below the speed limit and 8 mph below the top end of the maximum speed range for the bend.
The Court of Appeal re-emphasised that no prison sentence can sufficiently reflect the loss of life and that the court’s role involves assessing the offender’s culpability and harm caused by applying the Definitive Guideline subject to the statutory maximum. The court rejected the submission that the judge misapplied the Guideline. The fact that speed fell below the 60 mph limit was of no consequence as that limit did not indicate a level at which it could not be careless or unsafe to negotiate the bend, particularly when it had been raining heavily and the road was wet. Culpability was not reduced by the absence of a warning sign or reduced speed limit given the road markings included hazard lines and the collision occurred after Mr Monington had driven through a series of bends which he knew and ought already to have prompted appropriate speed. There was no merit in the argument that he was only 8 mph below the upper bound of maximum speed for the bend because it was careless verging on dangerous for an inexperienced driver to drive so close to this upper estimate in wet conditions. In any event the court described the argument as specious because the maximum speed was expressed as a range with a lower end of 45.47 mph, meaning Mr Monington drove well inside that range at about 4 to 5 mph above the lower bound. For an inexperienced driver to drive at or towards the very limit at which the bend could be negotiated in the wet was undoubtedly careless driving falling not far short of dangerous. The prosecution expert had also explained his speed assessment was in reality an underestimate. The court observed that Annex A of the Guideline gives driving at a speed highly inappropriate for prevailing conditions as an example of dangerous driving even where not aggressive or competitive, and that the difference between a highly inappropriate speed and an excessive speed amounting to careless driving not far short of dangerous is a matter of degree. The court was satisfied the judge was fully justified in treating the excessive speed as falling within the top category of carelessness and that his conclusion of a 30 month sentence following trial could not be faulted, making the two year sentence after credit not excessive.
In short, the appeal was dismissed, the Court of Appeal holding that the judge had been entitled to categorise the driving as careless falling not far short of dangerous given the excessive speed at which an inexperienced driver negotiated a sweeping bend in wet conditions, and that the resulting two year sentence was not manifestly excessive.
On 16 April 2018 before His Honour Judge Bidder QC Mr Monington pleaded guilty on re-arraignment and was sentenced to two years’ imprisonment. He was also disqualified from driving for a total of five years and until passing an extended retest. Related counts of causing death by driving whilst uninsured and unlicensed were ordered to lie on the file. Leave to appeal against sentence was granted by the single judge.
On 21 February 2017 at about 7.40 pm Mr Monington was driving a Citroen Xsara motorcar on the A4119 westbound in Creigiau with two passengers, Mr Ryan Thomas in the front and Mr Thomas Cody in the rear nearside seat. The road was a single carriageway with one lane in each direction separated by central hazard lines and subject to a 60 mph speed limit. It was dark but illuminated, it had been raining heavily and the road surface was wet. Mr Monington drove through a series of sweeping bends with which he was familiar before arriving at the point of collision. He lost control of the vehicle which crossed into the opposite lane and struck a number of trees on an embankment sloping downwards from the road. The rear nearside of the car where Mr Cody sat sustained severe damage. Mr Monington and Mr Thomas were able to exit the vehicle but Mr Cody was found unconscious and severely injured. Despite CPR administered by a passing doctor and a member of the public, Mr Cody died at the scene aged 24 having sustained bilateral rib fractures, a penetrated left lung and haemorrhaging in both chest cavities. Mr Thomas sustained bruising, small cuts and a shoulder injury. Mr Monington suffered a fractured skull but no brain injury or significant ongoing effects.
Mr Monington was arrested the following day and admitted being the driver but stated he could not remember the collision or driving on the A4119. His blood sample revealed cannabis use below the statutory limit for a driving offence and his breath test for alcohol was negative. Police examination of the vehicle found no defects contributing to the collision. The prosecution expert determined that the collision occurred at a sweeping left bend which then turned right. The car left the road on the offside immediately after the road began to bear right and collided with trees causing it to rotate clockwise whilst sliding down the embankment. The rear nearside impacted a substantial tree adjacent to the offside edge causing the car to spin anti-clockwise and become airborne before colliding with further trees. The force of the rear nearside impact tore the rear axle from its mountings and bent the nearside wheel and hub assembly inwards, indicating a high-speed impact. No marks indicated emergency braking prior to the collision. The expert concluded the collision was caused by excessive speed such that Mr Monington could not negotiate the bend safely. He calculated the maximum speed at which a vehicle could negotiate the bend on the correct side of the road as between 45.47 and 57.96 mph, whilst the safe speed was 32.45 mph. The car was estimated to have been travelling at between 48.8 and 49.9 mph when it began to slide, which the expert emphasised was an underestimate because it did not account for the impact with trees.
Mr Monington held only a provisional driving licence granted in January 2008 and was therefore required to be supervised by a qualified driver, but neither passenger was qualified. The vehicle was a so-called pool car owned by Mr Dean Mitchell and shared among several young males. The court received a victim personal statement from the deceased’s mother Mrs Vicky Cody describing the devastating continuing impact of losing her son. Mr Monington was aged 26 at sentence and had three previous convictions between 2012 and 2015 comprising battery, grievous bodily harm with harassment resulting in a suspended sentence, and further grievous bodily harm with breach of the suspended sentence for which he received two years’ imprisonment in 2015. He was recalled following the commission of the current offence and released on licence in July 2017. The pre-sentence report recorded that he accepted he had not received recent driving tuition and expressed deep regret without minimising his culpability. He was assessed as posing low risk of reconviction and medium risk of harm to the public, though his previous conduct suggested a tendency towards reckless and irresponsible behaviour.
The judge stated that the fact Mr Monington was a provisional licence holder aggravated the offence in that his lack of tuition and experience was an additional contributing factor, although his inexperience could not be treated as mitigation given that he was driving without supervision. The judge found that Mr Monington drove into the bend at a speed substantially too fast for the road conditions and lost control causing the vehicle to slide off and collide with trees. Whilst there was no evidence of prolonged or persistent bad driving and he had not consumed intoxicants above the legal limit or sufficient to impair his driving, the speed at which he took the bend was very obviously greatly excessive. Applying the Definitive Guideline on Causing Death by Driving, the judge concluded this was a case which fell not far short of dangerous driving with a starting point of 15 months’ imprisonment within a range of 36 weeks to three years for an adult first offender convicted after trial. The judge noted there was another passenger who did not suffer serious injury and that Mr Monington suffered some but not serious injury. He accepted genuine remorse was shown. Mr Monington had no driving convictions but had a poor criminal record, had not responded well to community supervision and had committed the offence whilst on licence, though that aggravating feature should not be double-counted given his recall to custody. The guilty plea was not entered at the earliest opportunity as the prosecution expert report had been available and once mechanical defect was excluded there was no defence, but the plea was indicated well in advance of trial warranting 20 per cent credit. The judge determined the appropriate sentence before credit was 30 months and therefore imposed two years’ imprisonment.
Mr Evans on behalf of Mr Monington submitted the sentence was manifestly excessive because the judge erred in treating the driving as falling not far short of dangerous and that the case should have been treated as falling within the second category of other cases of careless or inconsiderate driving. He argued there was no evidence supporting the judge’s categorisation and that Mr Monington had simply misjudged a difficult bend where arguably there should have been a specific warning sign or reduced speed limit. He submitted the actual speed was about 10 mph below the speed limit and 8 mph below the top end of the maximum speed range for the bend.
The Court of Appeal re-emphasised that no prison sentence can sufficiently reflect the loss of life and that the court’s role involves assessing the offender’s culpability and harm caused by applying the Definitive Guideline subject to the statutory maximum. The court rejected the submission that the judge misapplied the Guideline. The fact that speed fell below the 60 mph limit was of no consequence as that limit did not indicate a level at which it could not be careless or unsafe to negotiate the bend, particularly when it had been raining heavily and the road was wet. Culpability was not reduced by the absence of a warning sign or reduced speed limit given the road markings included hazard lines and the collision occurred after Mr Monington had driven through a series of bends which he knew and ought already to have prompted appropriate speed. There was no merit in the argument that he was only 8 mph below the upper bound of maximum speed for the bend because it was careless verging on dangerous for an inexperienced driver to drive so close to this upper estimate in wet conditions. In any event the court described the argument as specious because the maximum speed was expressed as a range with a lower end of 45.47 mph, meaning Mr Monington drove well inside that range at about 4 to 5 mph above the lower bound. For an inexperienced driver to drive at or towards the very limit at which the bend could be negotiated in the wet was undoubtedly careless driving falling not far short of dangerous. The prosecution expert had also explained his speed assessment was in reality an underestimate. The court observed that Annex A of the Guideline gives driving at a speed highly inappropriate for prevailing conditions as an example of dangerous driving even where not aggressive or competitive, and that the difference between a highly inappropriate speed and an excessive speed amounting to careless driving not far short of dangerous is a matter of degree. The court was satisfied the judge was fully justified in treating the excessive speed as falling within the top category of carelessness and that his conclusion of a 30 month sentence following trial could not be faulted, making the two year sentence after credit not excessive.
In short, the appeal was dismissed, the Court of Appeal holding that the judge had been entitled to categorise the driving as careless falling not far short of dangerous given the excessive speed at which an inexperienced driver negotiated a sweeping bend in wet conditions, and that the resulting two year sentence was not manifestly excessive.