R v Mark Barrie King
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,Mr Justice Leveson,MR JUSTICE LEVESON,MR JUSTICE MACKAY,LORD JUSTICE KEENE |
| Judgment Date | 20 March 2001 |
| Neutral Citation | [2001] EWCA Crim 709 |
| Judgment citation (vLex) | [2000] EWCA Crim J1117-12 |
| Date | 20 March 2001 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200006691/W3,No. 2000/04693/X5 |
[2000] EWCA Crim J1117-12
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Leveson and
His Honour Judge Richard Brown
(sitting As A Judge Of The Court Of Appeal Criminal Division)
No. 2000/04693/X5
MR M WYATT appeared on behalf of THE APPELLANT
Friday 17 November 2000
I will ask Mr Justice Leveson to give the judgment of the court.
On 8 May 2000, in the Crown Court at Leicester, the appellant pleaded guilty to two offences of causing death by dangerous driving. On 13 July 2000, His Honour Judge Hammond sentenced him to five years' imprisonment on each count concurrent and disqualified him from driving for a period of six years. The appellant now appeals against sentence by leave of the single judge.The facts are of some significance. On 30 July 1999, the appellant, who was a professional driver, visited his general practitioner who told him not to drive and referred him for urgent review by a consultant. So it was that on the following day Dr Sridharan, a consultant physician in adult medicine, saw him on a domiciliary visit. This underlined the urgency of his condition. The doctor reported to the general practitioner:
"He has morbid obesity with [body mass index] 66.5 with sleep apnoea syndrome and has been progressively symptomatic over the last 18 months. He slept on his HGV while in Scotland one month ago and drove into a field, fortunately avoiding a catastrophic accident due to daytime hypersomnia. He is desperately keen to get himself better and has unfinished business until 12 August 1999 and was pleading with me to admit him immediately after that date."
Thus, not once, but twice the appellant was told in terms that he should cease to drive, if he even needed such a warning, given his fortunate avoidance of an accident as described by the consultant.
In fact, however, the appellant ignored both warnings. So it was that at 6.30am on 4 August 1999, he was seen driving a lorry southbound on the M1 motorway. Other drivers noticed that the lorry was weaving from the inside lane to the hard shoulder and back without any indication. One driver, as he overtook the lorry, saw the appellant rubbing his eyes. That observation was made about 40 miles before the place where the accident occurred.
At about 7.30am the appellant was approaching a service station on the motorway. As the road approached the service station, the hard shoulder disappeared and traffic in the inside lane had come to a halt. Other vehicles in other lanes had slowed down. The appellant was driving in the inside lane. He failed to stop behind the stationary traffic. He struck the back of a Renault car which was shunted into the offside lane. The appellant's lorry then struck a Vauxhall Corsa, the effect of which was to shunt the Corsa into the rear of a Ford Mondeo in front, and both cars were shunted into the rear of a lorry in front of them. Those two cars were crushed between the two lorries and embedded in the appellant's lorry which then caught fire. That fire completely destroyed both cars, instantly killing the drivers of both the Corsa and the Mondeo. Meanwhile, the appellant had leapt from his lorry after it caught fire, but remained at the roadside while emergency services arrived. He was arrested at the scene and briefly interviewed that day. In September 1999, he was further interviewed. He stated that he suffered from health problems, sleep apnoea, and that at the time of the accident he intended to turn into the service station for a break. He could not remember drifting across the motorway some time before the accident. He said he could recall little of the accident, other than slamming on the lorry's brakes when he realised the traffic in front had stopped, and jumping from the lorry when it burst into flames. He added that he felt extremely sorry for the grief that he had caused.
In the event, the judge was compelled to hold a Newton hearing to determine whether, and if so to what extent, the appellant had ignored medical advice. He determined that hearing against the appellant and as a result concluded that it would be inappropriate to give the appellant full credit for his plea. However, he made it clear that he treated the appellant as a man of good character and that it was noted that he was full of remorse. It was accepted that he had suffered mentally since the accident and that sometimes sufferers from sleep apnoea were not aware of their sickness.
In a cogent and careful submission, Mr Wyatt has referred to R v Lowe [1997] 2 Cr App R(S) 324, which concerned a taxi driver who, in July 1995, was advised not to drive for the foreseeable future "and certainly not for a year" because he was then suffering fitting. That advice was repeated by his general practitioner on 20 July, and he was provided with a sick note for twelve months. That appellant heeded the advice that he was given until November 1995 when, presumably in financial need, he took up part-time employment as a taxi driver. On 26 November he had an epileptic fit, lost control of his taxi, collided with a lamp post and thereby killed his passenger. A sentence of thirty months' imprisonment was reduced to eighteen months' imprisonment, in part because of the delay.
Notwithstanding Mr Wyatt's submissions, we have no hesitation whatsoever in concluding that this case is much more serious than that. Here two people died, thereby triggering one of the aggravating features in R v Boswell (1984) 6 Cr App R(S) 257. Furthermore, there was no partial acceptance of the medical advice. The judge was compelled to conduct a Newton hearing to decide the nature of the advice the appellant had been given. This accident occurred four days after the appellant was advised, and only one month after he had driven off the road in Scotland. Even accepting the observation of Professor Douglas that sometimes sufferers are not aware of their sleepiness, the appellant's driving was reckless in the extreme. Finally, it seems clear that on this occasion the appellant was aware that something was wrong. He had previously been seen weaving, had indicated to turn off the road and had been seen rubbing his eyes. As the sentencing judge made clear, he should have pulled off the road as soon as he felt in any sense unwell.
We return to the length of the term of imprisonment. Although more serious than Lowe, we do not consider that the sentence needed to be as high as five years. In all the circumstances, recognising that this court can never do justice to the loss felt by the families of the victims, but bearing all the features in mind, we have come to the conclusion that the sentence of five years' imprisonment should be quashed and we substitute a sentence of four years' imprisonment. To that extent this appeal will be allowed. The period of disqualification remains undisturbed.
_______________________________
[2001] EWCA Crim 709
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Keene
Mr Justice MacKay and
Sir Brian Smedley
No: 200006691/W3
MR R POTTS appeared on behalf of the Appellant
th March 2001
On 25th October 2000 at Newcastle upon Tyne Crown Court this...
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