No: 200103281/Z2
Neutral Citation Number: [2001] EWCA Crim 2108
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL

Tuesday 9th October 2001
B E F O R E :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)

MR JUSTICE BUTTERFIELD

and

MR JUSTICE COOKE

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R E G I N A

‑ v ‑

MICHAEL BROWN

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Computer Aided Transcript of the Stenograph Notes of
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MR C QUINLAN appeared on behalf of the Appellant

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JUDGMENT
1.	MR JUSTICE COOKE: This is an appeal against sentence by leave of the Single Judge.
2.	On 10th April 2001 the appellant pleaded guilty in the Crown Court at Gloucester to causing death by dangerous driving, in a tragic accident. Following adjournment for reports, on 30th May, he was sentenced to 18 months' imprisonment and disqualified for 4 years and ordered to take an extended test at the end of that period.
3.	The facts are these. The appellant was employed as a satellite dish installer for Gerwyn Davies which entailed him travelling throughout Wales and the west of England. On Sunday 30th April he and his employer spent the day engaged in installing satellite dishes. They had a short break for lunch and resumed work in the afternoon. The appellant had apparently been working for some two weeks without a break. They travelled in a Ford Escort van which the appellant was used to driving.
4.	Shortly after 4.30 pm that afternoon, the appellant set‑off along the B4215 in the direction of Newent. That road is the main road from Gloucester to Newent. It is a single carriageway and governed by a 60 miles per hour speed limit. The weather was fine. The road conditions were good and during that journey his employer fell asleep in the passenger seat of the van. Later, momentarily, so did the appellant.
5.	A female motorist had travelled behind the van for a good 5 minutes. She observed nothing untoward about the speed of the vehicle or the style of driving. However, as the vehicle travelled round a left‑hand bend, the Ford Escort van suddenly began to drift to its right, without braking or indicating, and it then drifted into the opposite carriageway at 45 miles per hour and instantly collided head‑on with an oncoming vehicle. The front seat passenger in that vehicle died instantly.
6.	The appellant was breathalysed, with a negative result, at the roadside. He was taken to hospital, suffering from three broken ribs and other injuries and kept in for several hours before being released from hospital.
7.	In interview, following his arrest, he told the police that he had no recollection of the incident and accepted that he might well have fallen asleep at the wheel.
8.	The appellant is aged 30, married with two young children. Apart from one previous conviction of a public order offence, in 1989, he was otherwise of good character and his driving record impeccable. It is clear that the appellant accepted his culpability and has been visibly distressed about the accident. He has expressed profound sorrow and he, himself, has been affected by the offence and his family relationships have been strained by it. He had been unable to work since the accident prior to the sentence.
9.	Various character references were provided to the court, which spoke well of him, both as a responsible person and as a competent and careful driver.
10.	The learned judge in his sentencing remarks said:
“In cases of this sort usually the sentence is one of imprisonment for a long time. That is because usually these cases are caused by an obvious piece of dangerous driving such as driving too fast or driving whilst the worse for drink or whatever it may be. This is not such a case. On all the evidence you were a sensible man and a sensible and competent driver. This was, as your learned counsel has said, a one off piece of dangerous driving. It is quite apparent that the cause was that you momentarily dozed off, and therefore the car that you were driving drifted out of the line of traffic and collided head on with a car in the opposing line of traffic.” 
11.	He then took into account various circumstances in mitigation but, nonetheless, imposed a sentence of 18 months.
12.	It is contended on behalf of the appellant that the judge failed to give sufficient credit for his plea of guilty and that he failed to have regard to the considerable mitigation that was put forward, including the following: the absence of any aggravating features within the terms of the decision of this Court in R v Boswell (1984) 79 Cr App R 277; the fact that this was a one‑off occurrence, happening over a matter of seconds over one tenth of a mile; his good driving record; his good character; the genuine shock and remorse and the devastating effect on the appellant's life and family.
13.	We have carefully considered these submissions and the interests of the public in relation to offences of this nature. There are wide variations in the circumstances and culpability when an accident of this kind occurs. This is an example of a case where the culpability consists of falling asleep, momentarily, at the wheel, not a case where sleep was fought off over a protracted period of time or a case where that occurred at night. There are no aggravating features of the kind referred to in Boswell and by contrast five of the mitigating factors referred to were present, as set out earlier in this judgment.
14.	In all the circumstances, we consider that the sentence was manifestly excessive and that the appropriate sentence should have been 9 months. We therefore quash the sentence given and impose instead a sentence of 9 months. To that extent only this appeal is allowed.