No: 2009/4603/A5 
Neutral Citation Number: [2009] EWCA Crim 1967
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 23 September 2009
 
B e f o r e:

LORD JUSTICE HOOPER 

MR JUSTICE UNDERHILL 
 
MR JUSTICE IRWIN 
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R E G I N A 

v 

MATTHEW RICE
 
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Mr A Urquhart appeared on behalf of the Appellant
Mr C McDougall appeared on behalf of the Crown
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J U D G M E N T
1.	MR JUSTICE IRWIN:  On 20th July 2009 at the Huntingdonshire Magistrates' Court the appellant pleaded guilty and was committed to the Crown Court for sentence.  On 26th August 2009 at the Crown Court at Peterborough the appellant was sentenced by His Honour Judge Bathurst‑Norman as follows.  For the first offence, causing death by careless driving, to 20 weeks' imprisonment, and for two other offences, each of using a vehicle with insufficient tyre tread, the appellant was fined £200 on each offence, the total sentence therefore being 20 weeks' imprisonment with £400 worth of fines.  He was disqualified from driving for two years.
2.	Another driver, Miss Buckingham, had previously pleaded guilty at the Magistrates' Court to driving without due care and attention, failing to stop and failing to report an accident, all in relation to the same incident.  She was fined £300 and disqualified from driving for nine months.  
3.	The application for leave to appeal against sentence in this case has been referred to the full court by the Registrar, who granted a representation order for counsel.  We have already indicated we propose to grant leave to appeal and treat today's hearing as the appeal.
4.	This is a truly tragic case from all points of view.  The incident occurred just after 6 pm on Friday 28th November 2008 on a road designated C121, Low Road, which is a narrow country lane near Fenstanton in Cambridgeshire.  The road is often used by local people to avoid portions of the A14 when it becomes congested.  
5.	Mark Robinson, who was 32 years old at the time, was an avid cyclist, riding approximately 13,000 miles a year.  He routinely rode to work and, on the evening in question, was on his way home when this incident occurred.  At about 5.10 he suited up in his bicycle gear ‑ it has been described to this court and indeed to the court below that he was wearing a "spiderman" outfit.  It was dark in colour and, aside from the buckles on his backpack, there was no reflective material in his outfit.  One of Mr Robinson's work colleagues noticed that as he left the lights on his bicycle were in full operation.  The front light was a battery‑operated LED type which was described by that witness as quite brightly lit.  That witness also saw that Mr Robinson, whom he passed somewhat later as they both travelled home, was travelling at about 23 mph, quite a speed for a cyclist.  It is clear that Mr Robinson was a very fit and very experienced cyclist.
6.	Mr John Pook was driving his Ford Focus at about 40 to 45 mph in the opposite direction to Mr Robinson as they approached the scene of the accident.  As Mr Pook drove his vehicle out of a bend onto a straight stretch of road, he and his wife saw Robinson's bicycle coming towards them with its front light on.  There were no street lights illuminating the scene.  Pook noticed that two vehicles had caught up with him and were travelling behind him.  The vehicle immediately behind him was a Fiat Punto driven by Rachel Buckingham who was then aged 19 and the second vehicle was a Ford Focus being driven by the appellant.  Both of them sought to overtake Mr Pook's vehicle.  
7.	As we have indicated, Miss Buckingham pleaded guilty to driving without due care and attention on the basis that what she did was to indicate and pull out into the oncoming lane.  It was the appellant's account (which for these purposes is to be accepted given there was no challenge to it below) that in fact she had pulled out in front of him, he having already committed himself to overtaking the two vehicles in front of him.  Miss Buckingham did not see Mr Robinson as she pulled out and as she began to overtake.  She did see him at the last minute and swerved out of the way, avoiding him and pulling back into her proper lane.  As she passed Mr Pook's vehicle she was of course obscuring the appellant's view and as she swerved and moved away he no doubt was confronted suddenly with Mr Robinson, within his proper lane but in a position for a frontal collision with the appellant's vehicle.  
8.	In interview the appellant said that it was he and not Miss Buckingham who had first crossed over into the oncoming lane.  His attempt was to see if the lane of travel was clear.  He had not seen Mr Robinson at that stage.  It was at that point, he said, that Miss Buckingham indicated and pulled out.  He did not, as of course he should have done, apply his brakes and pull into his proper lane.  Had he done so Mr Robinson would not have been killed.  As he did follow Miss Buckingham past Mr Pook's vehicle, it is of course the case that his view would have been totally obstructed.  It is common ground that there was no room for two lanes of traffic and for a bicycle all simultaneously to pass each other without collision on this narrow lane.  
9.	The appellant's estimated speed at the time of the collision was around 55 mph and the estimated speed of Mr Robinson was nearly 16 mph.  After the event, the handlebars of the bicycle were embedded in the windscreen of this appellant's car.  Mr Robinson was thrown from his bicycle and suffered multiple injuries.  He was taken from the scene and pronounced dead at Hinchingbrooke Hospital.  As we have indicated, one of the appellant's tyres had insufficient tread and one was under inflated, but it is important to recall that the condition of the tyres played absolutely no part in this incident and are not relevant to the terrible day of Mr Robinson's death.  
10.	In a victim impact statement, which we shall emphasise later in this judgment, Mr Robinson's partner said of her loss that on the night he died a hand reached inside her chest and ripped out her heart.  
11.	In categorising the gravity of this offence it was common ground between the Crown and the defence, and accepted by the learned judge, that this was not one of those cases close to the border of dangerous driving, but nor was it at the bottom of the range of careless driving ‑‑ as would be the case with a moment of inattention or a slight excessive speed for a short period.  This offence was in the middle range of careless driving.  The judge correctly observed, in our view, that anyone who pulls out to overtake more than one car or who overtakes without making sure the road is clear ahead of them, are not paying proper attention to their driving.  The appellant knew the road and he knew that it was not well lit, that shadows might obscure the lights of the cycle or indeed a pedestrian with a torch.  Quite clearly, as we have said, the accident had devastating consequences for Mr Robinson, for his family and for his partner, whose life has been turned upside down by his death.  The impact on her is eloquently expressed in her touching and sad statement which the judge bore well in mind, as do we.  
12.	We do however point out that there can be little or no difference in culpability between the driving of Miss Buckingham and that of this appellant in what they did that night.  The difference was in the consequences.  She too did not see Mr Robinson when she should.  She too overtook in circumstances which were dangerous and she too might very easily have been the driver who killed him in the course of her careless driving.  Because she did not in fact kill him, the maximum penalty that she faced was a fine and disqualification.
13.	The appellant is a man of exemplary character.  He is a golf professional, an occupation to which he seems to be gifted and dedicated.  He has never been in trouble with the police and he has the strong support of a number of witnesses, whose statements make it clear that he is a decent, generous man, hard working and sensitive.  These statements and the contents of the pre‑sentence report attest to his deep remorse for what happened.  His friends have spoken of the change in him since the crash, how he has become more withdrawn and quiet, and less outgoing. The probation officer states how the appellant, "Cannot say how terrible he feels at causing the death of another person.  He says that he hates himself for what has happened."  He has shown very clearly that he is fully aware of the impact of what has happened on the victim and on his family.  We are told today by counsel that the police were sufficiently concerned about this appellant's state of mind to refer him to a psychologist in the aftermath of the investigation of the offence. As the judge himself observed in sentencing, "There are few people who have appeared in front of me who have been spoken of as well as you have been."  It is also relevant that this appellant, after the crash and in the immediate shocking aftermath of these events, acted fully responsibly by stopping, summoning the police and doing what he could to bring aid to the stricken Mr Robinson.  
14.	In passing sentence after making the observations we have referred to, the judge stated that he would give full credit for the plea of guilty by the appellant at the first opportunity.  Even having made that allowance, but for the personal mitigation, he would have been considering a sentence of at least 30 weeks' imprisonment.  However, the personal mitigation permitted him to pass the sentence he did of 20 weeks' imprisonment, with disqualification for two years.  In relation to the tyre offences they were completely irrelevant to the accident and he therefore passed the fines that he passed.  
15.	Mr Urquhart presented the case for this appellant very attractively.  He makes a number of points.  First he says the judge was wrong to say that the facts show a degree of impatience on the part of the appellant.  Second, he says it was wrong of the judge in the course of remarks during mitigation to suggest that the driving of Miss Buckingham had not made a contribution to the accident.  Pausing there, we reject both those points.  We think the judge was correct to say there was a degree of impatience because this appellant did not pull back into his own lane once Miss Buckingham pulled in front of him.  We also take the view that Miss Buckingham's driving, whilst as culpable as that of the appellant, did not in fact contribute to the death.  Her vehicle must indeed have obscured his view, but his proper course was not to overtake until he could see.  
16.	Mr Urquhart also suggests the judge gave insufficient credit for the appellant's good character.  We reject this also.  The judge in our view did properly reflect these matters by reducing the sentence he would otherwise have passed by a full third.  
17.	The fourth point made in relation to the prison sentence is that it was wrong to impose a sentence substantially more severe on this appellant than was passed on Miss Buckingham.  Here we have to address a really difficult point in sentencing such cases as this. As we have pointed out above, Parliament has set radically different maximum sentences for careless driving and for careless driving which leads to death.  Yet, as is exemplified by the facts of this case, the difference in outcome, determining whether a driver faces one offence or the other, may be a matter of the chance of a moment.  The possible sentences, and indeed the sentences recommended in the different relevant guidelines, are determined not by blameworthiness but purely by the consequences.  
18.	Indeed, the matter is even starker if one considers serious injury as opposed to death.  Had Mr Robinson survived, but with a serious brain injury, to linger perhaps for years with a gravely diminished quality of life, the maximum penalty faced by this appellant would have been a fine.  There is perhaps room for different views as to whether this situation is logically or morally right, but the courts must respect the intention of Parliament and there can be no doubt that the intention of Parliament was as we have outlined.  Irrespective of blameworthiness the consequences of careless driving do make a crucial difference to sentence.  We are unable to agree that the sentence passed here was too long.  
19.	However, there is one more consideration which needs to be addressed.  The recommendation of the pre‑sentence report was that any prison sentence should be suspended.  It is not clear that this proposal was given active consideration by the judge.  We consider that in the circumstances of this case it was a proposal which had merit, and certainly should have been considered by him in sentencing.  By the provisions of the Criminal Justice Act 2003 and the guidelines issued by the Sentencing Guidelines Council in respect of the new sentences available under that Act, the court must first consider whether a sentence of imprisonment is appropriate and then decide length.  If, as in this case, the appropriate sentence is less than 52 weeks then in relation to a suitable defendant the court may consider suspension.  In our view that should have happened in this case.  The combination of the facts of the case, the appellant's character and personal circumstances and his negligible risk of future offending make a suspension of the sentence appropriate.  Given the period already spent in custody, we propose to alter somewhat the requirement which must accompany the suspended sentence, to one of 100 hours of unpaid work.  
20.	The appellant has also sought to appeal against the length of disqualification which was set at two years.  This will seriously impede his ability to keep his job as a professional golf coach.  We think there is merit in this appeal also and that the appropriate period should be 12 months' disqualification.  Accordingly, having granted leave to appeal and representation by counsel, the sentence of imprisonment passed by the learned judge remains, but will be suspended for a period of two years, that period of course commencing at the original date of sentence.  In the extremely unlikely event that this appellant breaches the suspended sentence, he will be liable to serve the balance of the 20 weeks' imprisonment, credit to be given for the period he has already served.  The requirement attached to that sentence is for 100 hours unpaid work.  This variation in sentence will have the effect that the appellant is released today.  The period of disqualification from driving is reduced to 12 months.  To that extent and for those reasons this appeal succeeds.