Dagnall, R. v [2025] EWCA Crim 202 (28 January 2025)

Neutral Citation Number: [2025] EWCA Crim 202 CASE NO 202404362/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT SHEFFIELD HHJ JEREMY RICHARDSON KC 14XW1107123 Royal Courts of Justice Strand London WC2A 2LL 28 January 2025 B e f o r e : LADY JUSTICE ANDREWS MR JUSTICE LAVENDER MR JUSTICE SWIFT ____________________ REX - v - RAYMOND DAGNALL ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ MS R STEVENS appeared on behalf of the Appellant. ____________________ HTML VERSION OF JUDGMENT APPROVED ____________________ Crown Copyright © MR JUSTICE LAVENDER: The appellant appeals, with leave granted by the single judge, against a sentence of 12 months' imprisonment imposed on him on 5 December 2024 in the Crown Court at Sheffield for one count of causing death by careless driving, to which he had pleaded guilty in the Barnsley Magistrates' Court on 6 November 2024. Just after 7.30 am on 22 November 2023 the appellant, without stopping at the junction, pulled out of Harvest Close onto Park Road (the A61) in Worsborough near Barnsley. He pulled out just in front of a motorcycle being driven by Aaron Smith, a 25-year-old man, who had no time to react before he collided with the appellant's car. Mr Smith's motorcycle hit the nearside front of the appellant's car and Mr Smith was killed as a result of the collision. His parents have made a moving statement in which they have spoken so eloquently about the loss which they have experienced as a result of his death. Sadly, nothing which any court can order can make up for the loss which they have suffered. The appellant was 79 years old when he committed the offence. He had no previous convictions and only one caution, in 2001 for theft. He had been driving for 34 years and had an unblemished record. The pre-sentence report recorded that his remorse was undeniable and indeed he had been diagnosed with anxiety and post-traumatic stress disorder as a result of the collision. The character references from his wife and children spoke not only of his positive qualities but also of the marked adverse change in him following the collision. The judge described him as "truly riddled with guilt". He had surrendered his driving licence and resolved never to drive again. He had on one occasion even planned to take his own life. The judge imposed the sentence on 5 December 2024, but gave the reasons for his sentence on the following day. Overnight, Ms Stevens drew the Court's attention to the decision of this Court in R v Dhuck [2014] EWCA Crim 2865 and the judge heard submissions from her on that case, noting that he had power to alter his sentence, although in the event he decided not to do so. The judge said of the appellant's driving that, although it was right to observe that it was a single error of judgment, it was a very serious error of judgment, which fell just below the threshold for dangerous driving and therefore in category A in the sentencing guideline for causing death by careless driving. The starting point for a category A offence is 2 years' imprisonment. The judge said that he added 6 months by reason of the fact that Mr Smith, as a motorcyclist, was a vulnerable road user. The judge then reduced the sentence by 6 months back to 2 years by reason of the mitigating factors. He then reduced that by one-third to 16 months by reason of the appellant's guilty plea and reduced it by a further 4 months as an act of mercy. In considering the guideline on imposition of community and custodial sentences, the judge noted that all three of the factors indicating that it may be appropriate to suspend the sentence were present. There was a realistic prospect of rehabilitation, the appellant had strong personal mitigation and immediate custody would have a significant harmful effect on his wife of 57 years, whom he helped to manage her epilepsy. However, the judge took the view that the most significant factor was that appropriate punishment could only be achieved by immediate custody. None of the other factors indicating that it may be appropriate not to suspend the sentence were present. As to the length of the sentence, it is submitted on behalf of the appellant that the judge was wrong to place this offence in category A, the judge gave too much weight to the single aggravating factor and the judge gave too little weight to the mitigating factors. It is further submitted that the judge should have suspended the sentence. As for categorisation of the offence, the guideline lists three categories for the offender's culpability. The relevant provisions in relation to those categories are as follows. The lowest category (category C), which has a starting point of 26 weeks' custody, includes cases of momentary lapse of concentration. Category B, which has a starting point of 1 year's custody, includes cases of unsafe manoeuvre or positioning and cases where the offender's culpability falls between the factors as described in culpability A and C. Category A, which has a starting point of 2 years' custody, includes cases where the standard of driving was just below the threshold for dangerous driving and/or includes extreme examples of a culpability B factor. Before the judge, Ms Stevens accepted that this was a case of more than a momentary lapse of concentration. She submitted that it was a case of an unsafe manoeuvre or positioning. As we have said, Ms Stevens relied before the judge on the case of Dhuck. The judge correctly observed that Dhuck was a decision applying sentencing guidelines which were no longer in force, that the new sentencing guidelines provided for higher starting points and that each case has to be decided on its own facts. Ms Stevens submitted that the decision in Dhuck remained helpful in relation to the categorisation of the culpability of an offence. It was submitted on behalf of the Crown that Dhuck could be distinguished on the basis that the appellant in that case had stopped at the junction before pulling out. We have carefully considered the case of Dhuck and the other cases referred to by this Court in its judgment in R v Wilkinson [2019] EWCA Crim 702, although we respectfully agree with the observation in that judgment that each case turns very much on its own facts. In this Court, Ms Stevens submitted that the appellant's driving fell into category B, but had an element of category C. The factors she relied on were as follows: the driving that constituted the offence was very short lived; it was a single error of judgment; the appellant was not travelling at excessive speed; the junction did not have an obligatory "Stop" sign; and the appellant had looked before he had embarked upon the manoeuvre, but he simply had not seen the motorcycle. Mr Smith was driving at about 5 to 10 miles an hour above the 30 mile per hour speed limit on Park Road, but no point is taken about that. Other relevant factors, some of which were stressed by the Crown, were that there was no restriction on visibility from Harvest Close looking right along Park Road, which was both a straight road and the main road through Worsborough. At just after 7.30 am in November there was what the judge described as half-light, although, as the judge observed, any difficulty in seeing the ongoing traffic would have been a reason for taking extra care before emerging onto Park Road. In any event, Mr Smith had his headlight on. He was wearing a dark jacket, but high visibility trousers. In our judgment, it was rightly conceded before the judge that this was not a case of a momentary lapse of concentration. It was a case of executing an unsafe manoeuvre. The real question for classification purposes is whether it was such an extreme example of executing an unsafe manoeuvre as to place the offence in category A rather than category B. It is relevant to bear in mind in this context that the start point for a category A offence is double that for a category B offence. In our judgment, this was a bad case of executing an unsafe manoeuvre, which justified some uplift in the starting point, but not so bad as to justify doubling the starting point. Since we are disagreeing with the judge as to the categorisation of the offence, it is necessary for us to reconsider the entire sentencing exercise for ourselves. However, we make the following observations about the aggravating and mitigating factors. The judge had to take account of the single aggravating factor, namely that Mr Smith, as a motorcyclist, was vulnerable, but this was outweighed by the powerful mitigating factors, including the appellant's genuine and considerable remorse and the extent to which he himself has suffered as a result of the collision. The way in which the judge expressed himself suggested that he treated the aggravating factor and the mitigating factors as balancing one another out, but his final reduction of the sentence by 4 months had the same effect as reducing the sentence by 6 months from the category A starting point of 2 years to 18 months before the one-third reduction for the appellant's guilty plea. We consider that a reduction of 6 months was an appropriate reduction to make to reflect the aggravating and mitigating factors. For those reasons, we quash the sentence of 12 months' imprisonment and impose instead a sentence of 8 months' imprisonment. We have arrived at this figure by increasing the 1 year starting point for a category B case to 18 months to reflect the fact that this was a case which fell in the upper part of category B and then reducing that to 1 year to reflect the balance of the aggravating and mitigating factors. The one-third reduction for the appellant's guilty plea brings that down to 8 months. We then have to consider whether to suspend the sentence which we are imposing. Given that we have taken a different view as to the appellant's culpability from the judge and reduced the length of the sentence accordingly, this requires a different balancing exercise from that carried out by the judge. We have already pointed out that all three of the factors indicating that it may be appropriate to suspend the sentence were present. Nevertheless, given the nature of the offence and its tragic consequences, there remains a strong argument for concluding that this is a case in which appropriate punishment could only be achieved by immediate imprisonment. However, the mitigating factors in this case are sufficiently strong that we have concluded that the sentence which we impose should be suspended for 18 months. Since the appellant has already spent about 12 weeks in prison, we do not impose any requirements as part of the suspended sentence. The judge disqualified the appellant from driving for 7 years, plus an extension period of 5 months and until the appellant had passed an extended retest. Since we are suspending the sentence, the extension period is no longer appropriate. We quash the disqualification order made by the judge and substitute an order that the appellant is disqualified from driving for 7 years and until he has passed an extended re-test. That, of course, may make no difference in practice, given, as we have said, that the appellant has resolved never to drive again. LADY JUSTICE ANDREWS: Mr Dagnall, I do not know if you can hear me, I hope you can. Your appeal has been allowed. Your sentence has been reduced to one of 8 months' imprisonment and that sentence has been suspended for a period of 18 months. Provided you do not get into any trouble during that 18 months, then you should have no difficulties going forward. I expect that the necessary paperwork will find its way to the prison sooner rather than later and they can then release you. Can I again reiterate on behalf of the Full Court to Mr Smith's family our sincere condolences to them on the tragic loss of their son. As my Lord said at the beginning of this judgment, no punishment, whatever length it may be and whether it is suspended or not, can ever bring him back. We recognise that. We recognise your grief. But I hope you understand that the law has to be administered in a way which is fair to all. In this case, we feel that the judge did get it wrong. Thank you very much. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII