No: 200900172/A5 
Neutral Citation Number: [2009] EWCA Crim 1533
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Tuesday, 30th June 2009
 
B e f o r e:

LADY JUSTICE HALLETT
MR JUSTICE JACK 
MR JUSTICE BLAKE 
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R E G I N A 

v 

DARRAN MICHAEL SIMS 
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Mr B Eaton appeared on behalf of the Applicant
Mr G Pounder appeared on behalf of the Crown
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J U D G M E N T
1.	MR JUSTICE BLAKE:  This is a renewed application for permission to appeal sentence imposed on this applicant on 2nd October 2008, in the Crown Court at Basildon, when he was convicted, following a trial of causing death by dangerous driving.  On 12th December 2008 he was sentenced by the trial judge, His Honour Judge Overbury, to 8 years' imprisonment, with a direction that the 71 days spent on remand should count towards sentence.  He was disqualified from driving for 10 years and until an extended re‑test was taken.
2.	The events that led to this conviction occurred on 18th April 2007 in Lee‑on‑Sea, where a victim, a 20‑year‑old girl, had met her fiancée and friends for lunch and walked across a pedestrian crossing in the centre of town and was waiting on a traffic island known as a safe refuge.  This applicant was approaching in his Rover motorcar.  He drove straight down the middle of the road, straddling the white line, mounted the traffic island, knocked down a traffic sign pole, which when it was knocked over struck the deceased victim, from which she died very shortly afterwards.  He was found to be vacant and in a stooper and said to those at the scene that he must have blacked out, and raised the question of whether he could have had an epileptic fit.  He indicated that he had memory losses before.
3.	It was the reconstruction of the medical evidence relating to the condition of this applicant that formed the basis of the sentencing judge's conclusions in the case.  He had regard to the Definitive Guidance issued in August 2008 by the Sentencing Guidelines Council for causing death by dangerous driving.  This reflecting the past case law of this court and the increasing public concern about sentences for this offence, now classed this offence into three levels of  conduct:  level 3, the lowest, driving with a significant risk of danger; level 2, the immediate level, driving creating a substantial risk of danger and level 1, most serious under the guidance, which is said to be described as follows "the most serious offences encompassing driving that involved deliberations to ignore or flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others."  If a case fell into that category then the sentencing range of 7 to 14 years custody and starting point was 8 years.  The learned judge concluded that the driving did fall into that category in this case and the reasons for so concluding was the evidence that had been deployed at trial that he was in the best position to assess that dealt with the medical history of this applicant.
4.	Until the autumn of 2005 there was no relevant medical history but in October 2005 this applicant was referred to the Southend Hospital, where he was seen by a neurologist, Dr Bannister, who referred him to have an MRI scan because of incidents of nocturnal blackouts or disturbed sleep pattern which may be indicative of epilepsy.  He was advised, according to Dr Bannister, on that first occasion not to drive in the light of the undiagnosed symptoms.  He returned to that hospital and Dr Bannister in February 2006. There was a mix up with his results and someone else that had caused the applicant some concern as to those matters but nevertheless, according to Dr Bannister and disputed at trial, but the judge concluded Dr Bannister's evidence was to be relied upon, he had again been told that he should not drive whilst further enquiries were being made as to his underlying condition.  The learned judge points out that the applicant's girlfriend had indicated in that medical interview that the applicant had driven despite the earlier advice and was given strong advice that he should not do so until all these matters had been properly investigated.
5.	By January 2007 there were reports of him biting his tongue during his sleep, which would be a clear indicator of an epileptic episode, nocturnal epilepsy.  He attended the accident and emergency departmental at Southampton General Hospital.  He there saw Dr Kelly, who again impressed upon him that his neurological state would have to be properly examined and until it was examined and a clear diagnosis and conclusion and medical were given he should not drive.  It is at this point necessary to observe that the applicant's occupation was a train driver and he was being told that he should not drive trains or drive cars.  In respect of the latter, Dr Kelly went so far as to enforce the advice given to print out from the DVLA website the guidance that people who have had epileptic episodes should not drive within 12 months of that episode until medical advice had reached a conclusion and proper medication, if any available, had been administered.  He was handed that printout according to the sentencing judge's account of the matter.
6.	That would then have been the third occasion he was told not to drive the car.  He then was invited to go back to the GP and get a reference to further consultant.  That happened.  There was another occasion in January when there were other severe pains.  On 8th February 2007 Dr Capildeo, another consultant, took him off work and told him not to drive (the fourth warning) and then there was a complication as to whether any of the symptoms might have been caused or contributed to by a chest infection for which he was seen by a fifth doctor, a Dr Wicks.  He was operated upon and discharged in March 2007 but he had another episode consistent with a seizure and tongue biting.  He saw Dr Wicks on 22nd March 2007 and Dr Wicks (that is the shortened version name was used at trial) assessed the seizure was not related to the infection.  He again stressed that he would have to have the cause of his seizure professionally identified and assessed and warned him again not to drive a vehicle.  We are told that he saw Dr Wicks again on 5th April where that warning was emphasised.
7.	Despite that consistent set of medical advice not to drive a motor vehicle, and indeed not to drive a train, as part of his duty as a train driver, last emphasised on 5th April, this applicant returned to work on 10th April.  He was then assessed by his employer's medical advisor on 13th April.  It appears that the medical advisor passed him as fit for work (unrestricted) but did so in ignorance of the fact that there had been the two occasions of nocturnal episodes and apparent seizures and tongue biting and at trial Dr White indicated that had he been aware of that he would not have admitted this applicant to have driven either a train or a car.
8.	On the other hand, it is apparent that this applicant at least did tell the doctor concerned that he had been having consultation with others and medical consent forms were signed to enable the matter to be assessed.  But what Dr White, who was the medical advisor for the employers was not told was that as recently as 5th April, some eight days previously, the surgeon who had been concerned with his chest infection and treatment had said that had nothing to do with his epileptic seizures or his seizure apparently epileptic in nature and that he should not drive.  So any assistance the applicant may have obtained from the employer's approach to this matter is undoubtedly significantly affected by the fact that important information was apparently withheld on the judge's finding deliberately withheld from Dr White.  He returned and then five days later the fatal crash in the circumstance described above occurred.
9.	It has been submitted in support of this renewed application that the learned judge was wrong to place this offending at level 1, the most serious offending.  It is submitted on his behalf that the guidelines themselves allocate driving whilst ability to drive was impaired as a result of consumption of alcohol or drugs, failing to take prescribed medication or as a result of a known medical condition at level 2 and some reference is made to the older authorities of R v Cooksley and R v Richardson [2007] 2 Cr App R(S) 36, page 211, for the proposition that under the previous categorisation, this class of conduct did not fall at the very highest level available under the guidelines.
10.	However there has been drawn to our attention two cases where driving by people who have been diagnosed as epileptics and who had failed to take medication had led to sentences at the highest level of culpability.  They are first R v Akinyeme [2007] EWCA Crim 3290, where on a late plea of guilty, a sentence was reduced from 8 years to 7 years, suggesting that a starting point of substantially in excess of 8 years would otherwise might have been appropriate, and R v Colliss [2006] EWCA Crim 206, where there was a plea of guilty and 7 years' imprisonment was imposed and at paragraphs 8 to 10 of the judgment, it is apparent that but for the plea, something in the order of 10 years might have been appropriate.  I am afraid the reference R v Akinyeme will be amended.  Colliss was when the sentence of 7 years WAS imposed.  In the case of Akinyeme the sentence was different but indicating that a starting point of 6 years' credit.
11.	In our judgment, where a person has an undiagnosed medical condition and is advised repeatedly, by competent medical experts, that until the diagnosis is complete or any medication is identified that he should not drive, that to drive would be in breach of the DVLA guidance and that he by driving run the risk of an epileptic blackout, which is a danger to members of the public, then to drive in defiance of  that advice is conduct that is capable, depending upon the facts of bringing it within level 1, the most serious offences encompassing driving which involved a deliberate decision to ignore or a flagrant disregard for the rules of the road.  Here, of course, it is not the driving, the manner of the manipulation of the vehicle that is the aggravating feature that puts it into that level.  Nor is this a case where that conduct had been aggravated either by previous convictions, previous for driving, previous crashes whilst with a medical condition or the taking of alcohol.  It may well be read that a medical condition alone and driving in disregard of it will in all the circumstances entitle the sentencing judge to put him at level 	1 but this was not simply a failure to take medication on more than one occasion, it was a judge's assessment of the case, a deliberate disregard of persistently given medical advice.  The advice was given for the obvious reason that anyone driving with his condition might lose control of the vehicle, with fatal consequences.  That is precisely what happened and a young woman's life was taken away at tragic loss to her family and her friends, in circumstances that the public and the Sentencing Guidelines Council have identified requires appropriate measure of punishment.  
12.	In our judgment, notwithstanding the sustained and helpful submissions that have been advanced in pursuit of this application this morning, on the judge's findings of facts in this case, that he was careful to spell out and in our judgment it was well open to him to reach this persistent conduct, met the level of flagrant disregard and in that context it fell within level 1 and therefore the sentence after trial was the same as the starting point and well within the range and therefore cannot be described as manifestly excessive.  For those reasons this application is dismissed.