No: 2009/6441/A1 
Neutral Citation Number: [2009] EWCA Crim 2828
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Monday, 21 December 2009

B e f o r e:

THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MRS JUSTICE RAFFERTY DBE 

MR JUSTICE EDWARDS‑STUART
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R E G I N A 

v 

PRAKASH ODEDARA
 
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Mr M Tregilgas‑Davey appeared on behalf of the Appellant
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J U D G M E N T
1.	THE VICE PRESIDENT:  On 2nd October 2008 this appellant was driving a small car in Swindon when he was involved in a collision of a kind which is sadly all too familiar.  He was turning right off the main road into a side road.  He failed to see an oncoming motorcycle.  He made his turn which put him in the path of the motorcycle.  The motorcycle had no chance of avoiding the collision and the tragic consequence was that the motorcyclist sustained fatal injuries.  
2.	This accident was the appellant's fault.  He failed to see a motorcycle which was there to be seen.  He was guilty of careless driving.  In due course, although plainly having thought about it for some time, he pleaded guilty to the offence of causing death by careless driving.  Although, for reasons which we do not understand, the indictment contained a count of causing death by dangerous driving, the right charge was always the one to which the appellant pleaded guilty.  He was sentenced to four months' imprisonment.  The question raised by his appeal is whether he had to go to prison immediately or should have been dealt with by a community order, such as one which required him to do unpaid work for public benefit, or perhaps be dealt with by way of suspended sentence.
3.	The two principal factors in most offences, relevant for the purposes of assessing seriousness for sentencing, are (1) the culpability or blameworthiness of the defendant, and (2) the harm either done or intended to be done ‑ see the work of the Sentencing Guidelines Council generally and section 143(1) of the Criminal Justice Act 2003.  Often those two go hand in hand.  For example, in cases of criminal violence generally the more severe attack will involve both raised culpability and increased harm.  Sometimes, however, those factors do not go together hand in hand and the offence of causing death by careless driving is one where they do not.  Careless driving has been an offence for a great many years.  It is committed whenever a driver falls below a reasonable standard of skill and performance.  That offence of careless driving is triable in the Magistrates' Court and the maximum punishment available is a fine and disqualification.  Imprisonment is not and never has been available.  Community penalties are ordinarily inappropriate and are now forbidden by section 150A of the Criminal Justice Act 2003.  That is the law as laid down by Parliament whether the driver's error causes a serious accident with grave injury or, as very often, either a minor accident or none at all.  However, where the same error or fault leads to a fatality the additional harm done is now recognised by Parliament in the creation of the comparatively new offence of causing death by careless driving.  This offence may carry imprisonment.  It does not, however, inevitably or necessarily do so.  Plainly some acts of careless driving involve the kind of serious fault which are likely to call for sentences of imprisonment.  We attempt no kind of list, but they might clearly include the kind of case where a driver drives deliberately when his attention is elsewhere (as for example trying to use a telephone), or the driver who drives when affected by the consumption of alcohol or drugs.  So too might bad driving associated for example with the theft of the motorcar.  
4.	The Sentencing Guidelines Council in attempting the near impossible task of giving guidance on the enormously wide range of offences which may fall within the statutory provision, says explicitly this, at paragraph 8 on page 15 of its guidelines: 
"Where the level of carelessness is low and there are no aggravating factors, even the fact that death was caused is not sufficient to justify a prison sentence."
5.	Of course courts need to recognise that in such cases as those there contemplated by the Council, the fact of the death is no less.  The impact on the bereaved is the same whether they are parents, spouses, children or friends.  Such people cope as best they can with a sudden and unexpected loss of a loved one.  Those who have to cope with this kind of shattering blow may well be tempted to think, at least at the height of their loss, that imprisonment will provide some kind of solace but it rarely does and it is not its principal purpose.  No sentence can bring back the departed; no sentence can or should attempt to put a price on a life.  We have seen the statement of the family of the deceased in this case.  There were poignant circumstances.  There nearly always are.  He was a young man.  He had a young family.  He was due to start a new stage in his life after separation from the children's mother by moving from his parents' home to his own place and the move would have been that very day.  
6.	Sentencing, however, has, whilst plainly to be in a bracket above careless driving without a fatality, to be matched to the culpability or blameworthiness of the defendant.  That is clear from the guidelines issued by the Council in which the lowest bracket of cases is described as best the Council can in this manner: "Careless or inconsiderate driving arising from momentary inattention with no aggravating factors."  For that level of offence the starting point is a community order of medium severity and the range is a low‑level community order to a high‑level community order ‑ in other words it does not include imprisonment.  It is, of course, but a guideline.  Elsewhere in the document the Council ventures some examples of the kind of case which might fall into that category.  For example, a case of mis‑judgment of the speed of another vehicle or of turning without seeing an oncoming vehicle because of restricted visibility.  That is not intended to be, nor is it stated, to be an exhaustive statement of the relevant category of offence.  All offences vary.  
7.	This appellant was driving in a suburban area.  He was working at a pizza parlour and he had been asked to go out in a vehicle (which was not his) to deliver an order.  He had done that and he was nearly back at base.  He approached his place of work and he had a right turn to make into the side road where his place of work was.  The main road from which he was turning consisted of one lane in each direction.  At the junction there was a short turning right filter lane or box in the centre of the road, protected by hatched white markings.  Beyond that and immediately ahead of the appellant as he made his turn was a small traffic island with a bollard on it with, immediately behind the bollard, a lamppost and on the lamppost and above the bollard a large round arrow sign indicating that traffic should pass to the left of the bollard.  
8.	It was some time after 7 o'clock in the evening in early October.  It was dark or nearly dark.  The road has urban streetlighting; perfectly adequate.  There were shops to the right which would have been showing further lights and may have contributed to the ordinary urban jumble of information which any driver must assimilate.  There were two other junctions to the left, just before and just after the right turn which the appellant was making.  The car he was driving with a small Smart car belonging to the business.  The traffic was fairly light.  Travelling in the same direction as the appellant were two cars ahead and two behind.  The one which was two ahead of him pulled into the nearside at or near the junction where he was turning and just beyond the right turn that he was expecting to make.  
9.	The appellant moved correctly into the filter box.  He was travelling very slowly ‑ estimates are always unreliable, but at best something of the order of 5 or 10 mph.  He did not come to a complete halt but if the way had been clear to make his turn there was no reason why he should.  However, the way was not in fact completely clear.  Coming the other way was Mr Gary Lane, riding a motorcycle that he was well used to.  He was driving within the 30 mph speed limit.  There can be no criticism of his driving whatever.  He had his dipped headlight on.  For whatever reason the appellant simply did not see him.  Since he thought the road was clear he executed his turn but that took him right into the path of Mr Lane who had nowhere to go.  In the collision which ensued Mr Lane suffered serious injuries from which it was impossible to save him.  The appellant was not himself significantly injured, although he was clearly knocked about in the impact and more or less fell out of his car onto the ground in faint or part collapse when the door was opened.
10.	This, we are satisfied, was careless driving arising from a momentary failure of attention.  The appellant did not keep a proper look out.  The motorcycle was there to be seen but he did not see it.  It is true that motorcycles can be difficult to see, but that is why drivers have to keep a watchful eye.  It is true that it was dusk or dark and there were shop lights and the lights of other vehicles, but those conditions, whilst they can be tricky, are part of the common coin of driving in any town anywhere.  The bollard and the rather large sign above it may have contributed a little to the defendant missing the motorcycle, although they provide no excuse.  If there is street furniture in the way you have to look that much more carefully.  The road was straight ahead.  He simply did not see the motorcycle but should have done.  It was an error, an error for which he will carry the responsibility for the rest of his life but one committed in the flash of a second.  
11.	It does not seem to us that it is helpful to try to distinguish between a driver who turns or pulls out having seen an oncoming vehicle but mis‑judged its speed and this kind of case, unless of course an oncoming vehicle is seen but is travelling much faster than anybody ought properly to anticipate; that will be a different case.  Otherwise that case is, like this, a momentary but fatal error.  
12.	It does not seem to us that the recent case of Campbell [2009] EWCA Crim. 2459 is on all fours with this case.  That is a case in which this court held that even a suspended sentence of imprisonment was wrong in principle in the case of a man who had turned from a side road across the path of an oncoming vehicle which he had not seen at all.  Although this court observed of that case that the oncoming motorcycle was or may have been driving faster than it should, it was not a case of mis‑judgment of the rate of approach because the defendant driver had not seen the motorcycle at all.  Like the court in that case, we do not find the categories of offence specified in the council's guideline, whilst helpful, always easy to apply on the ground.  It may not in the end matter greatly whether this or that case was correctly in the lowest category or at the bottom of the next category up.  It does seem to us that this and for that matter that case are cases of momentary inattention.  
13.	Were there aggravating features?  There was no speed.  There was no drink.  There was no history of less than satisfactory driving.  There were no other offences committed at the same time.  The Crown suggested that the appellant gave a false account in interview.  The judge did not regard it as deliberately false.  What had happened was the defendant suggested when interviewed by the police that the motorcyclist must have been going too fast or must not have had its light on.  Those were, the judge was satisfied and we think he was right, really ways of saying "I did not see him, he came from nowhere, there must be some explanation".  They were not deliberate assertions of something known to be false.  They were an attempt to reconstruct what had happened and they are very common where an accident has happened because another vehicle has not been spotted when it should have been.  
14.	The appellant can be criticised for having suggested that the collision had happened when he was still in the filter box, although that was probably part of the same process.  It was part of the process of not being able to face up to the fact that the accident was his fault.  It is understandable but it will have occasioned considerable additional grief to the family of the man who died and that part of his approach to the case does not do the appellant credit.  That said, there was no identifiable aggravating feature and there were mitigating features.  The defendant is 29.  He is a married man with two young children.  He had come to this country in July 2008.  He was in regular work.  He had learned to drive properly in India.  Neither there or here had he committed any previous offence.  It was known that he had made himself available to help other people in the past in his own country, indeed by transporting them.  Most important, he recognised, albeit not at the outset, that he had done wrong.  To the probation officer it was clear that he was conscious of the damage that he had done and the injury that he had occasioned to the family of Mr Lane.  He had not driven again since and expressed the intention not to do so again and most importantly he pleaded guilty.  All of those things redound to his credit and are reasons for moderating the sentence.  
15.	The judge dealt with his comparative inexperience, which may or may not have contributed to the accident, by disqualifying him for two years and requiring him, if he ever does want to drive again in this country, to take an extended test.  Those were proper and necessary orders.  
16.	We are satisfied that this was a case which did not, after a plea of guilty at least, and probably not in the absence of it, pass the custody threshold.  The right sentence would have been a community order requiring the defendant to give up his liberty to the extent of doing something useful to try to pay back to the community for the injury that he had done.  We recognise that he has now served a part, albeit not a long part, of the short sentence which was imposed upon him.  We shall quash the sentence of imprisonment.  We still think that it is appropriate that this offence should be met by a punitive community order and we shall substitute for the order made by the judge a community order with a requirement for unpaid work for 100 hours.  That is less than it would have been if we had been sentencing afresh, but it is a significant penalty for this man to pay and it accurately reflects the damage that he has done by his moment's fault.  To that extent this appeal is allowed.  
17.	We direct that a copy of the judgment is made available to those who are interested in it, particularly Mr Lane's family.