R v Simmonds
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HENRY |
| Judgment Date | 22 January 1999 |
| Judgment citation (vLex) | [1999] EWCA Crim J0122-20 |
| Docket Number | Case No: 98/06109/X5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 January 1999 |
[1999] EWCA Crim J0122-20
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henry
Mr Justice Mitchell
and
His Honour Judge David Mellor
(Acting as a Judge of the Court of Appeal Criminal Division)
Case No: 98/06109/X5
MR DAVID MASON appeared on behalf of the APPELLANT
This is the judgment of the Court. On 7th September 1998 this appellant appeared at the Crown Court at Warwick. He faced an indictment alleging causing death by dangerous driving to which he had pleaded not guilty. In the event that plea was accepted and a not guilty verdict having been recorded pursuant to Section 17 of the Criminal Justice Act, 1967 his plea to careless driving was accepted. He was fined £1,000, ordered to pay £150 costs and disqualified from driving for 12 months. He appeals against sentence (essentially the disqualification) by leave of the Single Judge.
The facts
At about 4.50pm on 3rd November 1997 this appellant, a man in his sixties of good character with an excellent driving record, was driving his 'J' registration Range Rover on the B4065 at Ansty in Warwickshire. He was unfamiliar with the road. Road conditions were good, but it was dark and vehicles had their headlights on. The appellant realised that he had missed his turn to the motorway and was anxious to do a U-turn with a view to regaining his course. He overtook a slow-moving JCB at no great speed. Two motor-cycles and a car followed him past that vehicle. The appellant saw a wide-mouthed entrance ahead and to his nearside. He moved left off the carriageway into that entrance and without pausing embarked on a sweeping right-hand turn designed to take him across the carriageway along which he had been travelling and on to the opposing carriageway with a view to returning whence he had come. He embarked and continued on into this sweeping turn without keeping a sufficient look-out for what had been following traffic. In fact as he re-entered the carriageway Mr Tarver, the victim, was on his motor-cycle some 20—30 yards away approaching at 40 mph followed at a distance of 20 yards or so by a motor car. There was other traffic further behind. Mr Tarver swerved towards his offside but, as the bonnet of the Range Rover neared the centre of the road, was unable to avoid collision with it. Mr Tarver was catapulted across to the opposite side of the road and some 10 yards down a driveway his machine following but coming to rest on its offside verge. The motor-car following Mr Tarver braked heavily but was able to stop. Following the impact this appellant behaved in the entirely proper manner to be expected of a man of his record, using his mobile phone to call for an ambulance and the police. Mr Tarver was rushed to hospital but sadly died within hours of the effects of his multiple injuries. At the scene, the appellant told a police officer:
"I was looking to turn around as I was on the wrong road. I saw a place to turn. I had just overtaken a queue of traffic behind a JCB. I looked, it was all clear then suddenly this bike came from nowhere. He must have been overtaking the queue."
Subsequently interviewed with his solicitor present, he said:
"… I just feel desperately sorry for his family, and that's it, but it was, just one of those things; I cannot give an explanation as to why I didn't actually see him and I can only assume that, he, as I say at the time I had committed myself, hem, he was invisible against the general illumination of ten or twelve vehicles coming down the hill."
The Sentence
Judge Nicholl clearly had considerable sympathy for this appellant. In passing sentence he noted the appellant's excellent driving record and stated that he was quite satisfied that he had made "a tragic error". Despite that sympathy he said:
"I do not think it is appropriate where someone has been killed as a result of a failure to keep a proper look-out and completing a turn as you did not to impose a substantial term of disqualification."
The appeal
The essential thrust of Mr Mason's submissions in support of this appeal is that the judge erred in principle in taking into account the death of Mr Tarver when passing sentence. He relies upon the judgment of Lord Lane CJ in R v Krawec [1984] 6 Cr App R (S) 367 at 369:
"In our judgment the unforeseen and unexpected results of the carelessness are not in themselves relevant to penalty. The primary considerations are the quality of the driving, the extent to which the appellant on the particular occasion fell below the standard of the reasonably competent driver; in other words the degree of carelessness and culpability. The unforeseen consequences may sometimes be relevant to those considerations. In the present case the fact that the appellant failed to see the pedestrian until it was too late and therefore collided with him was plainly a relevant factor. We do not think that the fact that the unfortunate man died was relevant on this charge."
The judgment was unreserved and no authorities were cited, reliance being placed upon a passage from Wilkinson's Road Traffic Offences (11th Edition) page 278, upon which counsel for the appellant in that case relied. That passage read:
"It is submitted that the consequences of an accident may sometimes have little relevance to the penalty that should be imposed. Sometimes a period of momentary inattention can have tragic results, while a piece of extremely bad driving can fortunately result in an offender escaping any accident. The actually...
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Cases
...2WLRII00446R vScunthorpeJJ, ex pMcPheeandGallagher(1998) 162 JP 63596R vShergillandothers[1999] 2 All ER485442R v Simmonds (1999] 2 Cr App R 18 559R v Smith (1998) 4 All ER 387 113R vStainesJJ, ex pDPP(1999) I Cr App R(5) 156 177R vStratfordJJ, ex p Imbert (1999) TheTImes,25February282R vSt......
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Cases
...2WLRII00446R vScunthorpeJJ, ex pMcPheeandGallagher(1998) 162 JP 63596R vShergillandothers[1999] 2 All ER485442R v Simmonds (1999] 2 Cr App R 18 559R v Smith (1998) 4 All ER 387 113R vStainesJJ, ex pDPP(1999) I Cr App R(5) 156 177R vStratfordJJ, ex p Imbert (1999) TheTImes,25February282R vSt......