Neutral Citation Number: [2007] EWCA Crim 1605

Case No: 2007/02443 A9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM 
HHJ Kemp – Lewes Crown Court 

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/07/2007

Before :

LORD JUSTICE HOOPER
MR JUSTICE MCCOMBE 
and
MR JUSTICE FIELD 
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Between :

	R 	Appellant	
	- v -		
	Malcolm Legrys 	Respondent	

(Transcript of the Handed Down Judgment of
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Mr P G Meredith for the Appellant
Mr E Brown for the Crown

Hearing date: 29 June 2007
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Judgment
As Approved by the Court

Crown Copyright ©

LORD JUSTICE HOOPER : 
1.	The Attorney General seeks the leave of the Court, under s36 of the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient. We granted that leave at the conclusion of the oral hearing. We announced that we did not intend to vary the sentence and we now give our conclusions for that decision.
2.	The offender is Malcolm Legrys who is 59 years of age having been born on 1 July 1947.
3.	On the 6 March 2007 the offender was convicted of causing death by dangerous driving following his trial. Sentence was adjourned for reports.
4.	On the 10 April 2007 the offender was sentenced to twelve months’ imprisonment which was suspended for two years with a condition that he undertook 200 hours unpaid work.  He has all but completed that work. He was disqualified from driving for two years and further disqualified until he passed an extended driving test.
5.	The judge was His Honour Judge Kemp sitting at Lewes Crown Court.
6.	In summary, on the 25 January 2006, at approximately 5pm and a little after lighting up time, the offender pulled out in his Ford Fiesta car into the opposite carriage-way of the B2028 between Haywards Heath and Turners Hill near the village of Ardingly in order to overtake a pick-up truck and a tractor with a trailer which were travelling in front of him. Mathew Bailey aged 31 was travelling on a motorcycle in the opposite direction and collided with the front offside of the offender’s vehicle. Mr Bailey suffered fatal injuries as a result and was pronounced dead at the scene. The offender recalls little of the collision. The road was well known to the offender.
7.	We turn to the facts in more detail. On the 25 January 2006 at approximately 5pm the offender was driving south on the Selsfield Road (a ‘B’ road) in Sussex and was nearing the Ardingly Showground. It is a single carriageway road with a speed limit of 60mph, there was no lighting on the road. The offender was driving his blue Ford Fiesta 1.3 litre Finesse. The car was later found to have no defects. It was dry but sunset that evening had been at 4:39pm. Most vehicles on the road had their headlights on. The road in question is well known to the offender who frequently used it to travel from his place of work to his home in Hassocks.
8.	Immediately ahead of the offender also heading south were an unlit tractor, with a log lifting crane on the rear and a large blade on the front.  The tractor was towing an unlit long flatbed trailer. This was followed by a Toyota pick-up-truck driven by a colleague of the driver of the tractor. They were travelling in convoy at approximately 20mph. The offender’s car was immediately behind the pick-up truck.
9.	The offender attempted to overtake the pick-up truck and the tractor and trailer. The offender started his overtaking manoeuvre on a straight stretch of road which headed into a long left hand turn approximately 160 metres ahead. At this point in the road there is a lengthening of the white lines in the middle of the road that indicate a potential hazard. There is no evidence as to what the offender’s rate of acceleration was or precisely where he began his overtaking manoeuvre. It was therefore impossible to establish at which point any vehicles were visible to him on the opposite carriage-way. However it seems clear that when he pulled out to overtake, the lights of the oncoming motorcycle were not visible to him. 
10.	Occupants of cars behind that of the offender vehicle were able to appreciate the length of the convoy and see the unlit tractor and trailer in front of the pick-up truck. Other drivers, including one immediately behind the offender, described the manoeuvre as ‘impatient’ and ‘dangerous’. In addition the offender did not appear to those who saw the driving to have the necessary speed to complete the overtaking manoeuvre. The description of the offender’s driving as dangerous came from the witness statements made for the purposes of the proceedings. We were told by Mr Meredith that in giving evidence at the trial the witnesses did not use the word dangerous. Whether that be right or not Mr Meredith accepts that the witnesses who were driving their cars behind the offender’s car took the view at the time that the offender ought not to be overtaking. They would have taken that view because of the potential danger. 
11.	Matthew Bailey, who was 31 years of age and a very experienced motor cyclist, was driving on the Selsfield Road in a northerly direction on his Kawasaki 1100cc motorcycle index number. He was riding his motorcycle responsibly and within the 60mph speed limit. He collided with the front offside of the offender’s vehicle as the offender attempted to overtake the convoy. The collision took place in the centre of Mr Bailey’s lane. There is evidence to suggest that Mr Bailey flashed his headlights at the offender immediately before the collision. An accident reconstruction expert suggested that no avoiding manoeuvre was made by Mr Bailey. The accident examiner found that it is possible that Mr Bailey did not have enough time to do so or that he misunderstood the situation before him because the tractor in the southerly carriageway was unlit perhaps leading him to believe the offender’s car could easily move back into its own carriage-way.
12.	There were three collisions. Whilst continuing with his overtaking manoeuvre the offender saw the light of the on-coming motorcyclist. According to his interview the offender thought that it was safe to continue. He then changed his mind, decided that it was unsafe and tried to move to his left. In doing so he collided with the tractor. This caused the tractor to veer off the road to the left and go through a hedge and into a field. The offender’s vehicle rebounded out to the middle of the on-coming carriageway where the second collision occurred between his vehicle and Mr Bailey’s motorcycle. The offender’s vehicle then collided with the tractor a second time. 
13.	Matthew Bailey and his motorcycle were thrown some distance through the air and landed on the grass verge on the northerly side of the road.
14.	The emergency services were called by other road users who stopped to assist. The police, ambulance service and fire and rescue service attended. Matthew Bailey was pronounced dead at the scene. He died as a result of the multiple injuries he suffered. So loved was Mr Bailey by his family, friends and by his community that some 400 people attended his funeral. 
15.	The offender was trapped in his vehicle and had to be cut out. He was taken to the Royal Sussex County Hospital. He had fragments of glass in his head, a laceration to the forehead and a fracture to his right forearm. He suffered retrograde amnesia as a result of head injury although no brain damage was discovered. The offender was interviewed by police on the 6 February 2006 at Brighton Police Station. He could remember little of the accident except for overtaking a slow moving vehicle and a bright light coming towards him.
16.	Mr Bailey’s mother, Pauline Bailey, father, Nicholas Bailey and sister, Nicola Bailey all prepared moving victim impact statements regarding their loss of Matthew.  Nicholas Bailey describes his son in glowing terms and goes on to say: 
“I used to be a fairly competent person, but that has been replaced by a feeling of constant panic and fears for the future of Pauline and my daughter Nicola. It’s so sad to see their grief and suffering, they miss Matthew so much. I know I must be strong for them but I don’t really want to be here anymore. I know we will survive and get through but our lives have been shattered beyond repair. We may find some of the pieces but the only piece of our lives that was so dear to us, is lost forever. You don’t come across a man like Matthew very often. I am so proud and privileged to have had him as friend and son. His death is a great loss to so many people and an even greater loss to humanity itself.”
17.	Mrs Pauline Bailey speaks of her great loss. She writes: 
“There are days when I am so low and the pain of missing Matt is so great that it is almost too much effort to get up and get dressed, and sometimes even in the company of family and friends I feel so lonely because Matt is not there.”
18.	Nicola Bailey describes what a wonderful person her brother was and how she has lost one of her best friends, she describes their lives as destroyed forever:
“It feels like the sun will never really shine again and that a heavy grey cloud resides over all of us. A huge, irreplaceable part of me is missing and I know I will never be the same person again.”
19.	The offender was of excellent character and with a clean driving licence. He had been employed as an ambulance driver in the non-emergency service. There were extensive character witness statements put before the judge. They can be summarised in this way. The offender was a quiet, careful, gentle and kind person and he reflected that in the manner in which he drove. 
20.	There is clear evidence not challenged by the Attorney General that the offender is suffering from post-traumatic stress disorder. The counsellor and psychotherapist who has been looking after the offender from shortly after the fatal accident describes the difficulties which he faced both after the accident and before sentence. She says that having just begun to adjust to his sentence and commenced his community service he was again shocked that the case was being referred to the Court of Appeal. She describes him as currently experiencing yet another cycle of anxiety and low mood. He is ruminating again about the accident and the whole process he has been through. He has feelings of despair, he has recently been commenced on anti-depressants by his GP in addition to the Diazepam he has been described for some time now. The possibility of being re-sentenced is overwhelming for him: “he is very frightened and now has limited resources to cope with all this as he is very exhausted and low.”
21.	In passing sentence HHJ Kemp was fully satisfied that the remorse being shown by the offender was entirely genuine. He said that the memory of that awful day or such of it as the defendant retains, will cause him pain for the rest of his life. He continued:
“the jury was satisfied that your driving fell below the standard which could be expected of a competent and careful driver. Your decision to overtake that tractor and trailer unit, at a time when you could not have known its full dimensions, and could not have seen whether the road ahead was sufficiently clear to allow you to do that overtaking, was indeed a dangerous act. But the fact that the tractor and trailer were unlit at a time when they most certainly should have been lit, did, in my view, substantially contribute to this dreadful accident, and it is a fact to which I find I can take into account when assessing your culpability.” 
22.	The Attorney General takes issue with that last sentence. Mr Meredith seeks to support it. It seems clear to us that the offender when he pulled out to overtake saw the unlit trailer and a tractor. The sun had only set some half an hour before and other drivers immediately behind the offender saw the tractor and trailer. The fact that the tractor and trailer was unlit might well, as the expert opined, have led Mr Bailey to believe that the overtaking car could simply pull in onto to its own side of the road. In our view the fact that the tractor and trailer were unlit did not cause the offender to overtake when he otherwise would not have done. 
23.	The judge went on to describe the dangerous driving as momentary and a unique and unprecedented error of judgment for the offender. On behalf of the Attorney General it is submitted that the error of judgment was not momentary. Mr Brown submits that the offender made an error of judgment when he pulled out to overtake and submits that the error of judgment could have been corrected after he had pulled out. Whilst that is true we take the view that the judge was entitled to describe the error as momentary. 
24.	The judge went on to stress that the offender was 59 years old and hitherto of good character. 
25.	The judge then turned to the issue of the suspended sentence. Relying on what he described as the frankly lamentable position in the jails he felt able to suspend the sentence. Mr Brown attacked that conclusion and we shall return to it shortly. 
26.	The Attorney General accepts that there were no aggravating features.  It is submitted that the offender must have or should have appreciated that he was engaged in a reckless manoeuvre. We have difficulty with the use of the word “reckless” to describe the offender’s decision to overtake. There is nothing in the circumstances of the accident or in the history of the offender’s driving to suggest that the offender himself realised that what he was doing was dangerous and could put the lives of others at risk. His error was to underestimate how long it would take to overtake the vehicles in front of him. In a more powerful car he would no doubt have succeeded. We are, for our part, not prepared to say that the offender was reckless in the sense of realising the risk of what he was doing. 
27.	The following mitigating features are present:
i)	The offender was of previous good character;
ii)	The offender had a good driving record;
iii)	The offender expressed genuine remorse; 
iv)	The death of Mr Bailey was in part caused (or may well have been caused in part) by the fact that the tractor and trailer were unlit;
v)	The injuries suffered by the offender and the consequences thereof.
28.	Mr Brown did not submit that the sentence of one year imprisonment if unsuspended would have been an unduly lenient sentence although he submitted that a sentence of some 18 months would have been more appropriate. 
29.	Whilst accepting that there were no aggravating circumstances as defined in Cooksley [2004] 1 Cr App R (S) 1, he submitted that the driving was not at the lowest level of dangerousness. He referred us to Attorney General’s Reference No 74 2005 (Modhavia) [2006] 2 Cr App R (S) 16. In that case the error of judgment was a failure to notice the presence in the road of a drunk man until it was too late. The judge passed a suspended sentence. The Court, having cited Cooksley to the effect that to avoid a prison sentence there have to be exceptional mitigating circumstances (para. 22 of Cooksley), posed the question whether there were exceptional circumstances to justify a non-custodial sentence. In paragraph 17 the Court said that the members of the Court might have concluded that this was not a case which warranted the label “exceptional” but the Court took the view that the circumstances of the offence coupled with the mitigation could (just) be described as exceptional and the non custodial sentence justified. 
30.	We take into account that the judge was sentencing the offender after a trial  but given the amnesia and the other circumstances of the case it does not, in our view, follow that there should necessarily be the normal disparity between the sentence following a trial and the sentence following a plea of guilty.
31.	We take the view that the appropriate sentence in this case was in the region of one year as the judge concluded. We now turn to the issue of whether or not he should have suspended it for the reason which the judge gave.
32.	In Attorney-General’s Reference No 11 of 2006 (Scarth) [2006] 2 Cr App R (S) 108, the Court said, at para. 20:
“When prisons are overcrowded the result is to hinder or prevent the valuable work of rehabilitation that a prison should normally provide. The fact that prisons are overcrowded may, for this reason, be a relevant factor where the sentencer’s decision is on the cusp, so that there is a real issue as to whether a community sentence can be justified rather than a custodial sentence. Prison overcrowding will also make it all the more important that the sentencer comply with the requirements of ss.152 and 153 of the Criminal Justice Act which we have quoted above.”
See also Seed [2007] EWCA (Crim) 254
33.	Mr Brown submitted that at least the first part of this passage cannot assist the offender because he does not need rehabilitation.  Mr Meredith submitted, with force, that this was an unattractive argument.  
34.	Rather than rely on prison overcrowding to justify the suspension of the sentence, we think that it is Cooksley to which a judge should turn to decide whether a sentence for causing death by dangerous driving should be suspended. 
35.	Although Cooksley speaks of “exceptional mitigating circumstances” to justify a non-custodial sentence, it is not easy for a sentencing judge to identify when such circumstances exist. The expression “exceptional mitigating circumstances” does not lay down a legal test.  It tells the sentencing judge that only in “a very small minority” of cases will a non-custodial sentence be justified (see Huang v SSHD [2007] UKHL 11).   
36.	Were the circumstances of this case along with the offender’s powerful mitigation such as to bring this case within that very small minority?  The offender’s error was to underestimate how long it would take to overtake the convoy.  He was not reckless in the sense we have described.  When he started to overtake, the bend was some 160 metres away, but he knew the road well. At that point the lights of the motorcycle were not visible. When the offender realised that he could not complete the manoeuvre safely, it was too late to return to his own side. The fact that the tractor and trailer were unlit may well have prevented Mr Bailey from taking any avoiding manoeuvre. In our view, even with all the mitigation, there should have been a custodial sentence. 
37.	Nonetheless we cannot describe the sentence as unduly lenient.  Even if it were, we would not have altered the sentence given all the circumstances including the fact that the offender has all but completed his 200 hours unpaid work.