Wilkinson [2019] EWCA Crim 702
- Summary
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Regina v Emily Georgina Wilkinson [2019] EWCA Crim 702 concerned an application for leave to appeal against a sentence of six months’ imprisonment imposed by His Honour Judge Tindal at Worcester Crown Court for causing death by careless driving.
Ms Wilkinson, aged 21 at the time of the appeal, was convicted after trial on 23 January 2019 of causing death by careless driving contrary to section 2B of the Road Traffic Act 1988 and sentenced on 11 March 2019. She was also disqualified from driving for two years and three months. A co-accused, Mr Balvinder Sangha, was convicted of the same offence arising from the same incident and sentenced to twelve months’ imprisonment. The grounds of appeal were that the judge was wrong to impose custody at all rather than a community order with unpaid work, and that in any event the sentence should have been suspended.
On 15 June 2017 at approximately 7.40 am, the deceased, Mr Ross Fawthrop, a very fit and active 58-year-old man, was cycling uphill along Bromsgrove Road, Romsley, Halesowen. He had risen early to accompany his wife who was cycling to work to celebrate National Clean Air Day as part of her role with the local council. He had ensured she arrived safely and was making his way home. Ms Wilkinson, then aged 19, was driving her Vauxhall Corsa to a school placement as part of her education degree course, a journey she had been making for approximately five weeks. As Mr Fawthrop approached the junction with Poplar Lane to his right, Ms Wilkinson was waiting at that junction intending to turn right onto the main road. She saw the cyclist approaching from her left but failed to notice Mr Sangha’s Ford Transit van approaching from her right along the main road, although it would have been in her view for several seconds had she kept a proper lookout. The speed limit was 30 mph but Mr Sangha was travelling at well in excess of the limit, probably at least 46 mph. Ms Wilkinson pulled out directly into the path of the van which, because of its speed, had no chance of avoiding a collision. The front of her car struck the rear nearside of the van, causing it to rotate anti-clockwise and collide with Mr Fawthrop. He was thrown violently from his bicycle and died as a result of his injuries.
Agreed evidence established that Ms Wilkinson’s view to her right from the junction extended to 136 metres. The main road bent slightly to the left as it went uphill but the van would have been in view for that distance as it emerged from the bend. Further agreed evidence concerned the time the van would have been visible at various speeds: at 30 mph it would have been in view for 10.1 seconds, at 40 mph for 7.6 seconds and at 50 mph for 6.1 seconds. There was some adjustment to those figures during the evidence. When interviewed by police, Ms Wilkinson said she had looked left when she reached the junction, saw the cyclist, looked right and there was nothing coming, then looked left again and edged forward out of the junction. She only became aware she had collided with something thereafter. She did not see the van at all prior to the collision. In her defence statement she said that almost as soon as she began to leave the junction she felt a bump and was thrown back into her seat; it was at that point she realised she had hit Mr Sangha’s van, which had not been visible when she made her observations. The defence contended that the death would not have occurred if Mr Sangha had not been travelling at excessive speed and that her driving was entirely appropriate in the circumstances. The collision occurred in broad daylight in warm, dry weather with excellent visibility and no adverse conditions. Traffic on the main road was light and free flowing. At trial each defendant effectively blamed the other.
In convicting Ms Wilkinson of causing death by careless driving, the jury were sure that she had driven carelessly in making inadequate observations before emerging onto the main road and that it could sensibly have been anticipated that if she pulled out without looking she might collide with an oncoming vehicle and that a passing cyclist could be killed in the collision. These were necessary conclusions of fact reached by the jury in following the route to verdict provided by the judge. Ms Wilkinson was a young woman of good character. The pre-sentence report stated that she was fully aware of the impact of her actions on Mr Fawthrop’s family and told the probation officer she could not believe she had impacted someone’s family in such a negative way and would have to live with that for the rest of her life. She expressed remorse and was tearful throughout the interview. Following the offence she had been diagnosed with post-traumatic stress disorder, depression and anxiety and had received counselling for six months before the prosecution was launched, after which she relapsed. The report assessed there was a low likelihood of reoffending and noted she was terrified of the prospect of prison. The recommendation, on the basis that this was a momentary lapse, was a twelve-month community order with unpaid work, although the author recognised the court might view the offence as so serious that custody was the only option. Ms Wilkinson herself wrote a letter to the judge a month or so after trial expressing remorse for the pain she had inflicted on the deceased’s family and describing the impact of the fatal collision on her own mental health and the prospects of completing her university course. She also wrote a letter to Mr Fawthrop’s family in which she said she had wanted to write for some time to show her sorrow and remorse, stated that if she could have taken the place of the deceased she would have had her own life taken in a heartbeat if it meant allowing them to keep their loved one, and apologised profusely for the loss and pain she had caused. The judge also had a host of impressive testimonials from family members, friends and those who knew her well, attesting to her good character and the distress she had suffered, although some of those letters did not grasp the extent of her culpability, describing it as a “minor error of judgment” or a “momentary lapse in judgment”. There was a very moving impact statement from Mr Fawthrop’s widow and another from her son on behalf of himself and his brother. The widow spoke of the devastation of losing her husband after 32 years of marriage and the impact of his sudden death on their two sons and all the family, the additional distress of the trial, and the fact that the defendants had not had the decency to admit what they had done, showing no remorse but defiantly insisting it was not their fault and subjecting the family to the agony of a trial.
In passing sentence the judge began by acknowledging the power and truth of what Mrs Fawthrop and her son had said, and observed that it was tempting to say “if only you had shown the degree of insight and remorse that you are now beginning to show at an earlier stage”. He observed that the pain of the family had been prolonged by the refusal of both defendants to take any responsibility until then for what each of them had done, continuing that perhaps they had convinced themselves that the other was purely to blame, but the jury had no difficulty seeing through that and it was perfectly obvious to them that both were responsible for Mr Fawthrop’s death because both drove carelessly. The judge accepted the expert evidence that Mr Sangha had been travelling at a speed of at least 46 mph before braking, which was far too fast, with the result that when Ms Wilkinson pulled out he could not avoid a collision. In respect of Ms Wilkinson’s culpability the judge said that the collision and Mr Fawthrop’s death would not have happened had she not pulled out, that Mr Sangha was there to be seen whatever speed he was travelling, that she clearly saw Mr Fawthrop and wanted to get out in front of him, and so it was obvious, at least to the judge, that she made a quick look to the right and saw a car which she assumed was disappearing round the bend uphill but which in fact was probably Mr Sangha coming downhill. She did not look to the right again and pulled out in a way which meant she was pretty close to Mr Fawthrop, so this was not just a case of one mistaken observation but was careless and rushed emergence into the junction without looking properly as well.
The judge then turned to the Sentencing Council guideline for causing death by careless driving. It was accepted by counsel in mitigation that this could not be described as careless driving arising from “momentary inattention without aggravating factors”, the description of the lowest level of culpability. The judge said that whilst the initial quick mistaken observation may have been momentary inattention, it was aggravated by her failure to recheck and her rushed emergence. The judge passed sentence on Mr Sangha first, placing the offence in the overlap between the middle and lowest categories. The middle category, described as “other cases of careless driving”, has a starting point of 36 weeks’ custody and a range from a high community order up to two years’ custody. The judge observed that Mr Sangha had finally shown some degree of insight and remorse when interviewed by the probation officer. In deciding whether to suspend the sentence the judge had regard to the Sentencing Council guideline on the imposition of custodial and community sentences and the factors to be weighed in deciding whether to suspend. He said the most telling factor was that “appropriate punishment can only be achieved by immediate custody”, reaching this conclusion particularly in circumstances where remorse and insight had only come after conviction. Turning to Ms Wilkinson, the judge said that the custody threshold was crossed in her case as well, although he accepted that a lower starting point was appropriate given her previous good character, driving record, young age and all the other circumstances of the case. He accepted all the features of strong personal mitigation: the realistic prospect of rehabilitation, the impact on others, and the fact she did not pose a risk. Her previous good character meant there was no history of poor compliance with court orders. However, bearing in mind that there had been no real insight and no remorse until after conviction, he was driven to the conclusion that appropriate punishment could only be achieved with immediate custody. In her circumstances the sentence of imprisonment would be one of six months.
Ms Murray on behalf of the applicant accepted, as she had below, that this was more than “momentary inattention” and therefore fell within the middle bracket described as “other cases of careless driving”. She did not accept that Ms Wilkinson was rushing to get ahead of Mr Fawthrop in pulling out as she did. She accepted this was a conclusion open to the judge on the evidence but submitted he was wrong to treat it as an aggravating factor because it was not one of those aggravating factors set out in the guideline. The Court rejected this as a misreading of the guidelines, holding that the factors set out were examples of aggravating factors and that a judge was not precluded from taking into account any particular further aggravating or mitigating factor arising from the circumstances of the particular case. Mr O’Higgins on behalf of the prosecution explained the evidential foundation for the judge’s finding that Ms Wilkinson had rushed to get ahead of the cyclist: on the calculations performed by the collision expert, although but for the intervention of Mr Sangha’s vehicle Ms Wilkinson would have pulled out in front of the bicycle and not hit it, she would only have been in front of it by a matter of a second or two. The inference was properly drawn that she was hoping to pull out in front of the cyclist. Mr O’Higgins pointed out that the journey once she emerged onto the main road would have taken her uphill and it might have been a disadvantage to have found herself behind a cyclist toiling uphill with no opportunity to overtake for some distance. The Court was quite sure the judge was fully entitled to take into account as an aggravating factor his view of that aspect of the evidence.
Ms Murray submitted that although the offence fell into the middle category it should have been treated as being at the very bottom of the range and therefore a high community order was appropriate and not a custodial sentence at all. She pointed out that none of the aggravating factors specified in the guideline were present, which was correct. She submitted there was the mitigating factor under the guideline that a third party had contributed to the commission of the offence, true in the sense that Mr Sangha was also guilty of the same offence, although her own carelessness was not contributed to in any way by his driving. Ms Murray also submitted that there was a further mitigating factor in that she had only been driving for a year or so and had only been travelling this route for five weeks. One of the additional mitigating factors under the guideline is “the offender’s lack of driving experience contributed significantly to the likelihood of a collision occurring and/or death resulting”. The Court held that these were not the sort of circumstances which that mitigating factor was designed to embrace. Ms Murray submitted that the judge failed to acknowledge and take into account the remorse which Ms Wilkinson had shown or the extent to which she had struggled to come to terms with the death of Mr Fawthrop in the intervening two years, failed to have sufficient regard to her young age of only 19 at the date of the offence and her positive good character attested to by the references, and that her mental health had suffered greatly. Ms Murray submitted that the judge should have followed the recommendation in the pre-sentence report by imposing a community order with an unpaid work requirement, which would have restricted her liberty whilst providing punishment in the community and enabled her to finish her school placement and qualify as a teacher. She suggested, although there was no evidence of this, that the fact of a conviction resulting in any prison sentence may even jeopardise her teaching career. In the alternative Ms Murray submitted that if the custody threshold was passed and imprisonment was necessary, the judge had failed sufficiently to consider suspending the sentence.
The Court was quite satisfied that the offence fell squarely within the middle bracket described as “other cases of careless driving”. The Court noted from the guideline at page 14, paragraph 6, under the heading “Factors to take into consideration”, that one of the examples given of “low culpability” falling within the bottom bracket is an offender who turns without seeing an oncoming vehicle because of restricted visibility. There was no such restricted visibility here. Nor, as was conceded, was this a case of “momentary inattention”: the van would have been in view for around six seconds or possibly a little less. There was further expert evidence during the trial which favoured at least the possibility of four seconds. Mr O’Higgins explained that another way of arriving at four seconds was that when she was at the junction she would have spent two seconds of the six available seconds when the van would have been in view looking to her left for the cyclist, and it was the balance of the six seconds (four seconds) that was available for her to have looked again to the right and seen the van approaching. Whatever the precise position in respect of timing, the fact remained that Ms Wilkinson drove directly into the path of the approaching van without ever seeing it. It was the clearest case of careless driving. The judge had presided over the trial and had heard and seen all the evidence, including Ms Wilkinson’s own evidence in the witness box. He was entitled to find that it was a careless and rushed emergence into the junction because she wanted to get out in front of the cyclist approaching from her left.
The starting point under the guideline for an offence in the middle bracket is 36 weeks’ custody (nine months). The judge did give her credit for her young age, good character, clean driving record and, as