Pavel Makevic [2019] EWCA Crim 1788

Pavel Makevic [2019] EWCA Crim 1788 concerned an appeal against a sentence of four years and nine months’ imprisonment imposed by His Honour Judge Coupland at Lincoln Crown Court following a guilty plea to causing death by careless driving when over the prescribed limit, contrary to section 3A(1)(b) of the Road Traffic Act 1988.

Mr Makevic had pleaded guilty on rearraignment after the jury was sworn on 4th February 2019 and was sentenced on 7th February 2019. He was also disqualified from driving for five years and five months, comprising three years extended by two years and two months, and until passing a driving test. A victim surcharge order of £170 was imposed.

The offence occurred on 15th November 2017 at approximately 9.35 pm on Broadfield Lane, Boston, Lincolnshire. Mr Makevic drove his BMW 735i over a level crossing in a residential area subject to a 30 mph speed limit. He collided with the rear of a pedal bicycle ridden by Mr Albert Harding, aged 74, who had just left his nearby home. No one witnessed the collision itself. Mr Harding was thrown onto the bonnet and into the windscreen and landed on the pavement. Despite CPR administered by Mr Makevic and later by paramedics, Mr Harding died in hospital that night from his injuries. The area was well lit by street lighting and lighting at the level crossing. The road surface was dry and marked with hazard markings before the crossing, which was on a slightly raised area. Mr Makevic was breathalysed at the scene, recording 46 micrograms of alcohol per 100 millilitres of breath. At the police station the lower of two readings was 53 micrograms, one-and-a-half times the legal limit of 35. Collision investigation established from skid marks that the BMW was travelling at a minimum speed of 37 mph at the time of the collision, more than 20 per cent above the speed limit. The investigator noted that this was a minimum speed, as braking would have begun before the skid marks commenced.

Evidence from Mr Rob Jennings, who had been travelling in the opposite direction moments before the collision, indicated that a car, which the prosecution contended was Mr Makevic’s BMW, had turned from Liquorpond Street and accelerated very fast, reaching what he estimated to be 40 mph. The speed struck him sufficiently that he remarked to his son that someone was in a hurry to kill themselves. Almost immediately after the car passed, he heard the sound of a vehicle sliding on the level crossing. Mr Jennings stated that there were no other vehicles or headlights in his lane behind him, a fact said to indicate that no vehicle could have dazzled Mr Makevic. In interview, Mr Makevic said he had not seen the cyclist and claimed he had been dazzled by the lights of another car. He stated he had been driving at 25 to 30 mph and had braked hard at once upon seeing the cyclist at the level crossing. He acknowledged consuming two beers that evening but denied it had affected his driving. He had no Lithuanian or UK driving licence at the time. The BMW had no defects that contributed to the collision, though an LPG system had been installed to a dangerous standard; this played no part in the accident.

The judge observed that the approach to the level crossing was well lit and well marked and that Mr Harding was there to be seen. He found that the presence of the level crossing required care. He noted that Mr Makevic was travelling above the speed limit and substantially above a safe speed for that part of the road. He concluded that speed was likely higher than 37 mph because that figure did not include speed lost by braking before skidding began. The judge found that the risk created by excessive speed was exacerbated by alcohol consumption at one-and-a-half times the legal limit, which was likely to have affected perception of risk. Although the judge accepted that the evidence and reconstruction demonstrated it was possible to be dazzled by another car on the crossing, he did not accept on the balance of evidence that Mr Makevic was dazzled or that this was the reason for the collision. He concluded that even if there had been dazzle, had Mr Makevic been driving properly and paying proper attention, the dazzling would have made no difference. If he had been driving at the right speed and paying attention, he might have avoided the collision altogether or it would have been less serious. The judge noted that Mr Makevic sought in the aftermath to minimise what he had done and rejected that. He said the collision occurred because Mr Makevic was not paying sufficient attention to the road despite the risks he had created. While accepting there was no intent to cause harm, the judge found that driving with that much alcohol at that speed in that location created a substantial risk. He concluded that while the distance travelled was not long, the manner of driving went far beyond momentary inattention.

The judge placed the level of alcohol in the middle category of the guideline, towards the bottom of the bracket, but placed culpability in the middle category towards the upper end because of speed, drink and lack of attention. He identified aggravating factors as the lack of a driving licence, the dangerous condition of the vehicle (although it did not cause or contribute to the collision, it could have made it far worse), and Mr Makevic’s blame of others including the deceased. In mitigation, the judge noted that Mr Makevic remained at the scene, attempted to help, was of previous good character, had positive references, had a young daughter with a serious medical condition and a sick mother, and had expressed genuine remorse. He had never been to prison before. The judge gave 20 per cent credit for the guilty plea, higher than would normally be given at that stage, reflecting the fact that the case against Mr Makevic changed considerably on the day of trial. He concluded that the sentence after trial would have been six years’ imprisonment and reduced that to four years and nine months with credit for the plea.

Permission to appeal was granted by the single judge on the ground that the sentence was manifestly excessive. Mr Gray, on behalf of Mr Makevic, submitted that the judge erred by rejecting the possibility of dazzle, improperly accepting aggravating factors, placing the matter in the wrong bracket in the sentencing guidelines, and failing to pay sufficient regard to mitigation or to give sufficient credit for the plea. The single judge had been troubled by a lack of clarity over whether Mr Makevic had a valid Lithuanian driving licence; it was clarified before the Court of Appeal that he had no valid licence in either Lithuania or the United Kingdom. In oral submissions, Mr Gray argued that the starting point of six years was manifestly excessive. He focused principally on the question of dazzle, submitting that the judge was wrong to accept Mr Jennings’ evidence and should have found on the balance of the evidence that Mr Makevic was dazzled. He submitted that the physical evidence was consistent with this account. Mr Gray argued that if dazzle was accepted, speed was the only element of carelessness and that the judge’s finding that Mr Makevic should have been driving below the speed limit was without evidence. He placed great stress on the personal mitigation and argued for more than 20 per cent credit for the late plea.

The Court of Appeal rejected each ground. It held that the judge was not in error to conclude that Mr Makevic was driving substantially above a safe speed for the road. The court noted that 37 mph was more than 20 per cent above the speed limit, at night, approaching a level crossing where caution was prudent. At 37 mph a car travels 16.54 metres per second, more than two metres per second more than at 30 mph. The figure of 37 mph was a minimum, and Mr Jennings’ evidence suggested higher speeds. The court held that these comments were not improper and that speed did not appear to have been taken as a formal aggravating feature, as the sentencing remarks dealt with aggravating features separately. The court rejected the submission that the judge improperly rejected the case on dazzle. It noted that the judge had stated on the balance of evidence he did not accept that Mr Makevic was dazzled or that this was the reason for the collision. The court held that this conclusion was open to the judge and that it might have been for the defence to make good the case that the appellant was dazzled, following R v Guppy [1995] 16 Cr App R (S) 25. The court considered that it was in fact open to the judge to be sure on the evidence that Mr Makevic was not dazzled. It could not be said on the balance of evidence that the argument was improperly rejected. The court also held that it was open to the judge to conclude that the car seen by Mr Jennings was Mr Makevic’s vehicle and that he was entitled to find that evidence reliable. In any event, even if there had been dazzle, Mr Makevic would have had extra time to notice Mr Harding and take steps to stop had he not been proceeding at such speed.

As to the condition of the vehicle, the court accepted that the guideline permits driving a poorly maintained vehicle to be taken as an aggravating factor. It acknowledged that there was no evidence that the fault made the vehicle capable of making the collision worse and no evidence that Mr Makevic knew of the poor maintenance or inadequacies of the LPG installation. However, the judge did not rest heavily on this point and it was simply one of a number of factors taken into account. The court did not accept that the judge placed the offence in the wrong category and agreed that it fell into the middle box of the second row on the grid in the guideline. It could not conceivably be said to be a case of momentary inattention with no aggravating features and was, if anything, towards the more serious end of the scale within the category of other cases of careless or inconsiderate driving. The absence of a licence was a specific aggravating factor, as was the attempt to place blame on the victim, albeit that this was not persisted in until trial and the prosecution did not urge it as an aggravating factor. The judge was entitled on the evidence to be sure that the dangerous driving was somewhat more than momentary.

The court did not accept that the discount for plea was inadequate. The plea was offered only on the day of trial. There was a late change in the case advanced which prompted that decision, focused on a narrow issue of whether Mr Harding would have survived if Mr Makevic had been driving at 30 mph. This ignored that the case on careless driving was not simply a speeding case but a case of careless failure to notice, and that Mr Harding would have been visible for some time over a distance of 147 metres from the turn from Liquorpond Street. The court noted that the case advanced veered into a plainly fallacious suggestion that if one is travelling within the speed limit one cannot be careless and ignored the impact of the level crossing where extra caution was required. The judge plainly fairly balanced the factors in arriving at a discount of 20 per cent and it could not be said the discount was inadequate.

The court accepted there was an element of double counting, albeit in both directions. The offence fell into category two because it was a driving while under the influence of drink offence, and alcoholic consumption was therefore counted at that stage. However, looking at aggravating factors, the judge placed the offence towards the upper end of the bracket because of speed, drink and lack of attention for some distance. Further, in looking at mitigating factors, the judge counted Mr Makevic’s good character, but the causing death by driving guideline was one of the oldest still in use and proceeded on the basis that the starting point assumed a first-time offender. Good character should therefore not properly have counted as a mitigating factor. These two instances of double counting balanced each other out. The court did not accept that there was double counting as to speed and inattention, which were necessary factors in placing the offence within the bracket. The essence of the case was that the judge had in relation to a number of points pitched his position within the band too high.

The court understood the submission that in terms of the level of intoxication the offence was only just within the middle bracket, fractionally above the five-year range bracket, and that a lower starting point than five years could have been appropriate. At the same time, one had to bear in mind the seriousness of the offence in terms of culpability. The court agreed that Mr Makevic was entitled to credit for considerable mitigation. Giving assistance at the scene was specifically identified as one such factor and must be given due weight, as must remorse. There were considerable general factors in his favour. The question was how heavily that mitigation balanced against the undoubted serious aggravating factor of lack of licence and the initial blame cast in the direction of the victim, taken together with the factors as to speed and lack of attention. To arrive at a finishing point of six years after taking all of this into account, before 20 per cent credit for plea, suggested the judge had in mind a starting point of something in the region of seven to eight years, placing the offence near the top of the central box in the grid.

The court did not consider that the judge erred in principle at any point and bore in mind that there was a range of answers at which a sentencing judge could properly arrive. This reflected the important distinction for the purposes of the Court of Appeal between a sentence which was robust and even stern, and one which was manifestly excessive. The court concluded that it may be that other judges weighing the factors in this case would come to a different or lower figure. At the same time, the court could perfectly well see how the factors when balanced could produce exactly the result at which the judge arrived. The court regarded the sentence as relatively robust but was not persuaded that it was manifestly excessive. The court dismissed the appeal. Following discussion between counsel, the court clarified the disqualification order to reflect the correct calculation under section 35B of the Road Traffic Offenders Act 1988.

In short, the Court of Appeal dismissed the appeal, holding that the sentence of four years and nine months’ imprisonment was robust but not manifestly excessive and that the judge had not erred in principle in his approach to culpability, aggravating and mitigating factors, or credit for plea.

Guppy and Another [1995] 16 Cr App R (S) 25