Ruparelia [2018] EWCA Crim 2766
- Summary
- Citing
- Cited By
R v Ruparelia [2018] EWCA Crim 2766 was an appeal to the Court of Appeal (Criminal Division) comprising Lord Justice Davis, Mrs Justice Cutts and His Honour Judge Dean QC (Sitting as a Judge of the CACD) in which the court allowed an appeal against sentence and reduced the custodial term but increased the period of disqualification.
Mr Ruparelia had pleaded guilty before the magistrates to causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988, and to failing to stop at the scene of an accident, contrary to section 170(4) of the same Act. He was committed for sentence to the Crown Court pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 for the former offence and section 6 of that Act for the latter. On 6 August 2018 at Southwark Crown Court the judge sentenced him to 20 months’ imprisonment for the dangerous driving offence and two months’ imprisonment consecutive for the failing to stop offence, making 22 months in total. He was disqualified from driving for 18 months, directed by the judge to begin upon release from custody, and until an extended test had been passed. He was also ordered to pay the victim £5,000 in compensation.
At around 7 am on Sunday 12 November 2017 police attended the junction between Marble Arch and Park Lane in London following a road traffic collision. The victim, Mr Anthony Davis, had been standing on a traffic island on Park Lane waiting to cross the road. He heard the appellant’s vehicle, a McLaren sports car, approaching but due to its speed decided not to cross even though the pedestrian lights had changed to green. The appellant’s vehicle then collided with a traffic light positioned on the same traffic island where Mr Davis was standing, causing it to fall on top of him. The appellant’s vehicle continued and crashed through barriers at Marble Arch. An off-duty police officer spoke with the appellant and asked him to wait with his vehicle while he attended to Mr Davis, but the appellant did not wait. He was captured on CCTV running in the direction of Edgware Road. Later that day he contacted the police to ask about his car. He was subsequently interviewed on 22 November 2017 and 30 January 2018 and made no comment to all questions asked of him.
Following the accident Mr Davis was taken to hospital where he remained as an in-patient for seven days. He sustained fractures to his leg. In an impact statement dated 2 December 2017 Mr Davis spoke of feeling angry, depressed and fed up. He was unable to leave the house for some time and suffered flashbacks and nightmares with an inability to sleep. He was also unable to work, which caused him serious financial loss of around £7,000. When he returned to work in April 2018 it was to a less well remunerated position.
The appellant was aged 30 at the time of sentence, had no previous convictions and a clean licence. In mitigation he relied on his remorse, expressed in a letter to the judge and to the victim, and a large body of references attesting to his good character, in particular his charitable and community endeavours including a mayoral commendation from the Mayor of Harrow dated May 2017. He also relied on evidence of his importance to the operation of his hotel and care home businesses which employed 2,500 people but which were said to be in a precarious financial position. A psychiatric report dated 16 July 2018 stated that the appellant was suffering from severe depression with an element of alcohol misuse. This had been diagnosed since the commission of the offences and since an attempt at suicide. He presented a moderate risk of suicide in July 2018, was not drinking alcohol at all and was completing a programme of cognitive behavioural therapy as a day patient. Reports from HMP Wandsworth showed that he had been using his time there to good effect, particularly in helping and mentoring others.
In his sentencing remarks the judge said that he could see no explanation for the collision save that the CCTV showed the appellant’s car travelling well in excess of the speed of other vehicles negotiating their way round Marble Arch. This was a case of excessive speed in a car which the appellant was not properly trained or competent to drive. His speed was clearly inappropriate for the prevailing conditions: there was other traffic, it had been raining, and he made no allowance for the fact he was approaching a red traffic light. The judge found the fact that the appellant had run away rather than staying to assist the victim “frankly appalling”. The judge placed the offence of causing serious injury by dangerous driving between levels 1 and 2 of the relevant Sentencing Council guideline. He expressly took account of the appellant’s mitigation save that he found little weight in his depressive illness, which he attributed to the appellant’s fear of imprisonment. For the offence of causing serious injury by dangerous driving he adopted a starting point after trial of 30 months’ imprisonment, reducing the term to 20 months by reason of full credit for the guilty plea. The judge described the failing to stop as “akin to an offence of perverting the course of justice” and adopted a starting point of four months’ imprisonment, reduced to two months to accord with the principle of totality. Initially the judge disqualified the appellant from driving for two and a half years until he passed an extended test. When prosecution counsel invited him to say that the disqualification should be extended by the period the appellant was in prison under section 35A of the Road Traffic Offenders Act, the judge understood her to be asking him to say that the disqualification should begin when the appellant was released from custody. Prosecution counsel confirmed that to be the case, whereupon the judge reduced the term to 18 months so as not to impinge upon the appellant’s rehabilitation and ordered the disqualification to begin upon his release.
The grounds of appeal, enlarged upon by Mr William Clegg QC, submitted that the sentence imposed was manifestly excessive. First, it was argued that the judge wrongly assessed the offence as falling between levels 1 and 2 of the guidelines when it properly fell within level 3 as driving which created a significant risk of danger, characterised by driving above the speed limit and at a speed that was inappropriate for the prevailing conditions. Second, this led to too high a starting point. Third, the judge placed too great an emphasis on the appellant’s failure to stop and assist at the scene. The offence of failing to stop was dealt with by a separate consecutive custodial sentence and should not have been used as an aggravating factor in the sentence for causing serious injury by dangerous driving. It was an example of double counting. The guideline specifically excluded failing to assist as an aggravating factor. Fourth, insufficient credit was given for the fact that this was an isolated incident of dangerous driving in the context of the appellant’s unblemished driving history. Fifth, insufficient credit was given for the appellant’s personal positive good character and mitigation.
The court held that this was a serious piece of dangerous driving. The appellant was driving a high performance car which he had only had in his possession for seven weeks, on a wet road in an area where there were likely to be pedestrians. It was incumbent upon him to take particular care in those circumstances, especially as he approached a pedestrian crossing. Instead, he drove too fast and lost control of the car at precisely the place where most care was needed. As a result Mr Davis was significantly injured in a way that would have ongoing consequences. Even without being told to do so by an off-duty police officer the appellant should have remained at the scene. Instead, he ran, only later contacting the police to enquire about his car. In all of these circumstances a sentence of immediate imprisonment was plainly warranted. That said, the court was persuaded that the judge fell into error in placing the offence between levels 1 and 2 of the sentencing guidelines. It had many of the characteristics that were seen within level 3. The court was also persuaded that there was a degree of double counting in the sentence imposed, in that the judge treated the failure to stop as an aggravating factor in the offence of causing serious injury by dangerous driving but also ordered the sentence for it to run consecutively to the other sentence imposed. For these reasons the court saw force in the appellant’s submissions that the judge adopted too high a starting point. In the court’s judgment, taking the appellant’s mitigation into account and allowing full credit for his guilty plea at the earliest opportunity, the appropriate sentence for causing serious injury by dangerous driving was one of 12 months’ imprisonment. The court saw nothing wrong with the term of two months’ imprisonment for failing to stop running consecutively to that term. The court gave effect to this decision by quashing the sentence of 20 months’ imprisonment for causing serious injury by dangerous driving and substituting a sentence of 12 months’ imprisonment in its place. The two months’ imprisonment for the offence of failing to stop remained consecutive to that term, resulting in a total sentence of 14 months’ imprisonment.
The court turned to the question of disqualification from driving. It was plain that the effect of sections 35A and 35B of the Road Traffic Offenders Act 1988 and the judgment of the court in R v Needham & Others [2016] EWCA Crim 455 was misinterpreted by the parties and by the judge in the court below. The judge, who was given little assistance by counsel, erroneously pronounced that the appellant’s disqualification would commence once he was released from custody. There was no power for the judge so to do. Further, section 34(4) and (4B) of the Road Traffic Act 1988 made disqualification from driving for a period of not less than two years, in the absence of special reasons, obligatory for an offence of causing serious injury by dangerous driving. The court corrected the position. It considered that the appellant should be disqualified from driving for the obligatory two years for this offence. There would be an extension of a period of six months pursuant to section 35A of the Road Traffic Offenders Act, being half the term now imposed for the offence of causing serious injury by dangerous driving, and an uplift of one month under section 35B to take into account the consecutive sentence imposed for failing to stop. This amounted to a total disqualification from driving of two years and seven months and until an extended test was passed. Whilst this made the period of disqualification longer than that originally imposed, it did not offend against section 11(3) of the Criminal Appeal Act 1968 as the court had reduced the substantive sentence of imprisonment. Taken as a whole, the appellant had not therefore been dealt with more severely than he was by the court below.
In short, the appeal was allowed in part with the custodial term reduced from 22 months to 14 months but the period of disqualification increased from 18 months to two years and seven months to reflect the correct statutory approach, and extended testing was maintained.