R v Usaceva [2015] EWCA Crim 166

Facts

"At 4.30 pm on 15th March 2013, a Peugeot 206 motorcar was being driven at moderate speed by Sukhdeep Johal along the single carriageway A47 road towards Peterborough when it struck the nearside kerb near to the New Toll Service Station and spun across the road into the front of an articulated lorry driven at 38 mph in the opposite direction. Sukhdeep Johal was killed. He and the lorry driver were blameless. What had caused his car to strike the kerb and spin across the road was the fact that it was struck from behind by a Jaguar X Type car driven by the appellant, Marina Usaceva. The collision caused significant damage to the Jaguar and was of sufficient force to cause the driver's airbag to deploy. The sky was overcast and it had been raining but the road surface was in good condition. There was nothing to prevent the appellant as she approached the Peugeot from slowing down safely behind it.

Her car had attracted the attention of Andrew Harrison, a house owner looking out of his window facing onto the A47, who saw it braking so hard that its bonnet dipped and its back raised up. He remarked to his mother that someone had just gone speeding by the window. The next thing he heard was the sound of the collision out of his eyesight. Speed may therefore have been a factor. The judge was satisfied that the Jaguar approached the scene of the collision at less than 70 mph on a 60 mph road, but was travelling significantly faster than the Peugeot.   

The judge concluded that she must have been fiddling with one or both of her mobile telephones with a view to making or receiving calls at the time of the collision. He invited her counsel to call evidence on the issue -- in other words to call the appellant herself -- if he wished to do so, but he declined. This finding caused the judge to put the case into category 2 because by driving whilst fiddling with one or more mobile telephones the appellant had behaved in a seriously culpable manner. He treated the two recent fixed penalty offences as seriously aggravating factors which took the case to the top of the bracket of four to seven years after a trial. He discounted the sentence by one year to reflect her belated plea of guilty. 

Endorsement and disqualification 

At the invitation of counsel for the prosecution the judge ordered that in addition to disqualification the appellant's licence should be endorsed with 11 penalty points. A note in Archbold based on Kent 77 Cr.App.R 120 decided under the predecessor to the Road Traffic Act 1988, the Road Traffic Act 1972, as amended by the Transport Act 1981, at 32-231 in the 2015 Edition, states that if a court imposes an obligatory sentence of disqualification from driving, it cannot order penalty points to be endorsed.

The statutory language at the time when Kent was decided was clear. Section 101(1) of the Road Traffic Act 1972 as amended by schedule 9 of the Transport Act 1981 required particulars of conviction and disqualification to be endorsed and only if the court did not order disqualification should particulars of the offence and penalty points be endorsed. The modern statutory provision is simpler. Sections 28(1) and 99 of the Road Traffic Offenders Act 1988 provide that where a person is convicted of an offence involving obligatory endorsement the number of penalty points shown in column 7 of Parts 1 or 2 of Schedule 2 to the Act should be ordered to be endorsed. Columns 6 and 7 of Schedule 2 show that endorsement is both "obligatory" and that the number of points to be endorsed is three to 11 for an offence under section 1 of the Road Traffic Act 1988. On the face of it therefore the court has no choice but to order endorsement with three to 11 penalty points.

Section 44(1) of the Road Traffic Offenders Act 1988 however provides:

"(1)Where a person is convicted of an offence involving obligatory endorsement, the court must order there to be endorsed on [F1the counterpart of] any licence held by him particulars of the conviction and also—
(a) if the court orders him to be disqualified, particulars of the disqualification, or.
(b) if the court does not order him to be disqualified—
(i) particulars of the offence, including the date when it was committed, and
(ii)the penalty points to be attributed to the offence."

Section 44(1)(a) therefore requires only that the particulars of conviction and of disqualification are to be endorsed when a person is convicted of an offence involving obligatory disqualification and is disqualified. The language is simpler and less explicit than that used in previous legislation, but from the language of the provision we cannot discern that Parliament intended to change the law and can discern no policy reason why it should have thought it right to do so. Therefore the decision in Kent should be applied to the legislation currently in force. The order for endorsement therefore must be quashed. To that extent only this appeal is allowed."  Mr Justice Mitting.

http://www.bailii.org/ew/cases/EWCA/Crim/2015/166.html

Comment

An important Court of Appeal case confirming something we thought we all knew anyway. The appellant's appeal against sentence was dismissed. The crown court judge imposed a 10 year disqualification from driving - which in recent months appears to be a common disqualification period for this offence. At the appeal hearing, no issue was taken as to the length of disqualification. It is open to the appellant to apply to the crown court to remove or reduce her disqualification period after half the disqualification period has elapsed; see section 42 Road Traffic Offenders Act 1988. The offender will be liable for automatic release at the half way point of her sentence. When released she will have a seven year disqualification period outstanding and at the very earliest, must wait two years before she could make an application to remove her disqualification. Perhaps worth noting that the mandatory minimum disqualification period for this offence is two years.