Noorzaman Oriakhel [2019] EWCA Crim 1401; [2020] R.T.R. 9, CA.

**R v Noorzaman Oriakhel** [2019] EWCA Crim 1401; [2020] R.T.R. 9 concerned an appeal against a sentence of sixteen months’ imprisonment imposed by the Crown Court at Snaresbrook following conviction for causing serious injury by dangerous driving contrary to section 1A of the Road Traffic Act 1988.

Mr Oriakhel was convicted after trial on 25 April 2019. The sentence of sixteen months’ imprisonment was imposed. He appealed against sentence by leave of the single judge.

On the morning of 17 July 2018 the appellant was driving a van on the Romford Road in East London heading towards Stratford. The road was very busy. He became involved in a verbal dispute with a cyclist. The appellant drove his van towards the cyclist, who moved onto the pavement to escape collision. As the appellant drove towards the cyclist he mounted the pavement and struck Miss Karolin Krell, a pedestrian. She was thrown to the ground and sustained serious injuries which had a lasting effect. At the time of sentencing she had recovered neither physically nor mentally from the incident. Her professional work as an osteopath had been badly affected. The appellant drove off after the collision. Another cyclist pursued and caught up with the van. The appellant shouted at him that it was all his fault and blamed stupid cyclists. The appellant was told to stop and did so. He was arrested by police. At trial the appellant disputed the charge but was convicted.

The sentencing judge took account of the following matters. At the time of the offending the Romford Road was extremely busy. The appellant was annoyed with a cyclist who was riding more slowly than the appellant considered he ought to. This led the appellant to lose his temper and behave in a most extraordinarily dangerous manner. Witnesses who saw the incident were deeply shocked by the appellant’s conduct. The appellant had not attempted to hit the victim but it was a mark of his rage that he did not care who was in the way. The appellant was fully aware that he had had a collision but drove off, leaving others to attend to the victim. The dangerous driving was short-lived, lasting only a few seconds. Once detained the appellant still blamed cyclists. He lacked remorse. He did not admit his culpability to the author of the pre-sentence report. He claimed that all the witnesses had lied. However, it was the appellant who had lied, both to the police and in court when he claimed that it was the cyclist who was at fault and that his vehicle had never left the carriageway. There was a victim personal statement before the court. The impact for the victim was substantial. It caused her serious injury to her spine and has caused lasting pain. Her prognosis was uncertain. There were no official guidelines for the offence of causing serious injury by dangerous driving but guidance was to be had from the guideline on causing death by dangerous driving, which provided assistance when assessing culpability. The judge accepted that there was substantial mitigation. The appellant was a man of good character until this moment of rage. His early life in Afghanistan had been traumatic and had had a lasting impact upon him. He had no record of criminal convictions. He had been a professional driver and now ran his own dry-cleaning business. The consequences of a custodial sentence would be severe for his business and there would be a harmful effect upon his family. The judge stated that those mitigating features allowed him to reduce the sentence considerably from what would otherwise have been in the region of two years’ imprisonment. The judge concluded that the offence was so serious that only an immediate custodial sentence could be justified and imposed sixteen months’ imprisonment.

On appeal Miss Roxburgh submitted that the judge gave insufficient consideration to whether the sentence could be suspended. The relevant Definitive Guidelines on Imposition of Community and Custodial Sentences were apparently not before the court. It was said that had the judge addressed himself to the guidelines he would have answered the relevant questions posed therein in the appellant’s favour and suspended the sentence. The court was told that the issue of whether to suspend the sentence was argued before the judge.

Lord Justice Green, giving the judgment of the court, accepted that the judge did not expressly address himself to the relevant guidelines on the imposition of custodial sentences. It was apparent from the sentencing remarks that he did nonetheless consider that immediate custody was appropriate. It was relevant that the issue of suspension had been argued before him. The court set out the questions a judge is required to consider under the guidelines: whether the custody threshold has been passed; whether it is unavoidable that a sentence of imprisonment be imposed; what is the shortest term commensurate with the seriousness of the offence; and whether the sentence can be suspended. On the basis of the findings of the judge, the Court of Appeal addressed those questions. It was clear that the custody threshold was passed and there was no dispute about this. It was unavoidable that a custodial sentence should be imposed. The judge had addressed himself to the shortest term commensurate with the seriousness of the offence and concluded that it was sixteen months’ imprisonment. In considering whether to suspend the sentence, the court considered factors relevant to the imposition of an immediate non-suspended sentence, including that the offender presents a risk or danger to the public, that an appropriate punishment can only be achieved by immediate custody, and that there is a poor history of compliance with court orders. Factors indicating that it might be appropriate to suspend a custodial sentence include a realistic prospect of rehabilitation, strong personal mitigation, and that immediate custody would result in a significant harmful impact upon others. The court judged that it was evident that the judge addressed himself to the question of suspension, but not formally to the guidelines. Had he done so, he would have needed to consider how they applied to the question of suspension. The court stood back and considered for itself whether, applying the questions relevant to suspension, the judge ultimately erred. It was apparent that there were factors present in the case which indicated that it could have been appropriate to suspend the sentence. In addition, the appellant was not classified as presenting a material risk or danger to the public. Nor was he a person with a history of poor compliance with court orders. The pre-sentence report indicated that there were factors demonstrating that it might be possible for the court to suspend the sentence. The author of the pre-sentence report concluded that appropriate community orders could be made to reflect the offending in question. Miss Roxburgh highlighted the deep and serious impact which the custodial sentence had exerted upon the appellant’s wife and family. The court had no doubt that the effect had been serious. The remaining question which arose from the guidelines was whether appropriate punishment could only be achieved by an immediate custodial sentence. This was the real nub of the case. The factors against suspension included the need to send a clear deterrent message to drivers who are prepared to let their rage compel them to react to cyclists and mount a pavement in pursuit that in such circumstances immediate custody will follow. The appellant had shown no remorse or real appreciation of the seriousness of the offending. The offending had had a serious impact upon the victim. The appellant’s attempt to evade responsibility revealed a lack of care towards the victim. Notwithstanding the many positive features relating to the appellant, the court concluded that the judge was entitled to impose an immediate custodial sentence and not to suspend the sentence. He did not, therefore, err. The court made one final observation. The appeal would not have arisen had the sentencing judge made clear that he was aware of the guidelines and had addressed himself to the relevant questions therein. Had this occurred, no one could have argued that the judge had, even arguably, misdirected himself.

In short, the Court of Appeal dismissed the appeal, holding that the sentencing judge was entitled to impose an immediate custodial sentence notwithstanding the existence of factors that might have supported suspension.