Shareen Rahman Chowdhury [2019] EWCA Crim 963

Shareen Rahman Chowdhury [2019] EWCA Crim 963 concerned a renewed application for leave to appeal against sentence following conviction for causing death by careless driving, which the Court of Appeal (Lord Justice Davis, Mrs Justice Simler and the Recorder of London) refused.

The applicant had been convicted after trial at Guildford Crown Court and was sentenced to six months’ imprisonment suspended for eighteen months, with a curfew for three months and 140 hours of unpaid work. She was disqualified from driving for three years and ordered to pass an extended driving test. The single judge had refused leave to appeal.

On 9 December 2016 at about 8.45pm, the applicant was driving a Peugeot car in Woking, having passed her driving test only three weeks earlier. She was stationary at a junction waiting to turn onto Monument Road. A co-accused, Mr Bilal Waheed, was driving a BMW along Monument Road in the same direction the applicant intended to travel, at a speed between 46mph and 52mph in a 30mph limit. The applicant pulled out when it was not safe to do so. Her car was struck by the BMW and in consequence she struck Mrs Radhika Gurung, aged 49, who was walking on the pavement. Mrs Gurung died at the scene from her injuries. The applicant told police that she had seen the BMW and thought she had sufficient time to complete the manoeuvre. A witness reported that the applicant said she had panicked and someone had hit her from behind. Both drivers were plainly at fault.

Mr Waheed pleaded guilty to the same offence and received twelve months’ imprisonment suspended for 24 months, with a curfew for four months and 180 hours of unpaid work. He was also disqualified for three years and until passing an extended test. The sentencing judge found that culpability lay primarily with Mr Waheed and at a secondary level with the applicant. The judge said that the applicant was an inexperienced driver who pulled out from the junction when she clearly should not have done. She had failed to have proper regard to the risk she created for vulnerable road users. The error was not caused by momentary inattention; she had been stationary at the junction for at least nine seconds before pulling out.

The applicant was aged 27 with no previous convictions. She was the mother of two small children aged 2 and 6 and carer for her elderly mother. She had been diagnosed with post traumatic stress disorder arising from the incident, resulting in flashbacks and physical reactions to reminders. She had expressed remorse in a letter to the judge and positive references were before the court. The victim impact statement from Mrs Gurung’s son described a woman who had instilled values in her family and remained a great inspiration. The court acknowledged that no sentence could equate to the value of the life lost or undo the tragedy.

The only ground of appeal pursued was that the three-year disqualification period was too long. Counsel submitted that it was excessive on its own terms and noted that it matched the period imposed on the co-accused Mr Waheed, who had the mitigation of a guilty plea. The court observed that the sentences otherwise differed between the two offenders. The applicant told the court that the disqualification would cause only inconvenience rather than greater hardship.

The Court of Appeal rejected the challenge to the disqualification period. The court emphasised that while disqualification has a punitive effect, it also serves to protect the public in the future. The disqualification was one element of the total sentence. The court noted that the pre-sentence report assessed the applicant as posing a low risk of future offending. However, the critical point was that the sentencing judge had heard the applicant give evidence at trial. She had not accepted that her lack of experience contributed to the accident, though the judge disagreed. She did not accept any lack of care and attention on her part, yet she was convicted. There was therefore a continuing misunderstanding by the applicant as to her culpability.

The court held that the judge was well placed to decide what the respective sentences should be for each offender and, in the applicant’s case, to assess the appropriate disqualification period for the purposes of protecting others in the future. This assessment followed his own evaluation of both the driving and the driver in the particular case. Having performed that exercise, the court was not persuaded that the three-year disqualification period could be said to be manifestly excessive. In short, the renewed application was refused, the disqualification period being appropriate in light of the judge’s assessment of the applicant’s culpability and the need to protect the public.