No: 200902378 A6 
Neutral Citation Number: [2009] EWCA Crim 2462
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 17th November 2009

B e f o r e:

LADY JUSTICE HALLETT DBE 

MRS JUSTICE RAFFERTY DBE 
 
RECORDER OF BRIGHTON & HOVE 
(Sitting as a judge of the Court of Appeal Criminal Division)
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R E G I N A 

v 

ROBERT BOLAM
 
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Mr R G Mairs appeared on behalf of the Appellant
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J U D G M E N T
1.	MRS JUSTICE RAFFERTY:  On 2nd April 2009, in the Crown Court sitting at Leeds, this 44 year old appellant was convicted of causing death by dangerous driving, sentenced to a term of seven years' imprisonment and disqualified from driving for eight years.  By leave of the single judge he appeals against the length of his sentence.
2.	The appellant had for about six years driven a 13 tonne road sweeper for Angus Heron Ltd.  Its Transport Manager, Andrew Pinder, would, but for personal ill‑health, have shared the dock with the appellant to answer a charge that he aided and abetted.  The genesis was that Pinder was in charge of a wholly inadequate maintenance system for the road sweepers and aware that the automatic breaking system was not working on the vehicle the appellant drove as it should have been.  After but three days proceedings against Pinder were aborted, and whether in future he faces a trial remains to be seen.
3.	On the morning of Tuesday 3rd October 2006, the appellant complained to mechanics at Heron that on his vehicle the ABS light was illuminated, and he thought other minor jobs needed attention.  The vehicle was booked into the local Volvo dealership for inspection on Saturday 7th October.  However, on 3rd October the appellant recovered the vehicle and continued to drive it after what we might call an in‑house Heron's mechanic had looked at it.  The mechanic's evidence was to be that when he examined it he thought the fault attributable to wiring and not to the ABS.  The Crown was to suggest that the appellant simply did not care whether or not the ABS worked properly.
4.	A little after midday on 5th October on the A650, a fairly broad single carriageway road on the outskirts of Bradford, in intermittent heavy rain, and thus on a wet carriageway, at temporary traffic lights where there was stationary traffic, vehicles were beginning to approach the appellant from the opposite direction.  
5.	Eye witnesses described the vehicle as travelling too fast ‑‑ there is no available reduction of that to figures ‑‑ and braking sharply as if in an emergency braking manoeuvre.  As it transpired, a fault in the load sensing valve, which would not have been obvious, meant that the rear wheels locked.  That meant that the appellant lost control as a consequence of the ABS not working.  The road sweeper veered across the carriageway and crashed into a Peugeot coming in the opposite direction driven by Mr Nazir, his wife in the front and their little girl in the back.  The two vehicles became locked together and, together, were forced through a barrier and down an embankment.  The sweeper, which it will be remembered weighed some 13 tonnes, landed on top of the Peugeot.  Mrs Nazir was killed.  Mr Nazir was injured.  The little girl in the rear escaped unscathed.
6.	Part of the case for the Crown was that in the moments before the crash the appellant had used his flip‑up mobile telephone in an attempt, unsuccessful, to contact a friend.  It was never suggested that at the time of the accident he was using the telephone.  It was however suggested that his mind was not on his driving as it should have been because he was distracted by his telephone, or, more accurately, by his interest in using it.  He had kept the flip‑up function open and the telephone between his legs to allow him to glance at it whilst he drove and to see whether there was any incoming activity.
7.	Immediately after the crash he telephoned Heron's and Pinder came immediately to the scene.  The appellant handed Pinder the mobile telephone, having seen that the police had arrived.  Some months later the police found the telephone wrapped in silver foil in the glove box of the appellant's car.
8.	Interviews under caution were spread over some nine months.  Initially the appellant did not mention anything as to anxieties about the ABS and he did not mention his activity on the mobile telephone a little before the collision.  As the evidence‑gathering exercise made progress, so did the appellant disclose more.  He explained that he had, albeit in error, thought the ABS working because of the reassurance he had had from the Heron mechanic and denied that at the time of the collision he had been distracted by thoughts of his mobile telephone.  It was always his case that he was not speeding and he claimed that a cat had run from the verge.  He had instinctively applied the brakes as eye witnesses, at least in part, had suggested; in an emergency manoeuvre.
9.	A police reconstruction with the sweeper travelling at 30 miles per hour when the emergency brakes were applied prompted the expert to conclude that the appellant's had been travelling in excess of 40 miles per hour, the limit imposed for vehicles of its type.
10.	Born on 16th January 1965, the appellant had very old previous convictions for dissimilar offences, sensibly ignored by the sentencing judge.  He had been a driver, both professionally and privately, for a very long time and his driving record was impeccable.  He could produce testimonials from witnesses who spoke of him as a decent, hard working man who supported his wife, his two adult sons and his ten year old daughter.  
11.	Sentencing him, the judge rehearsed the facts and, having heard submissions by counsel for the appellant and by counsel for the Crown which were unanimous as to the position of these facts within the work of the Sentencing Guidelines Council, concluded that the matter lodged between level 1 and level 2.  That was not in accord with the submissions he had heard: both counsel suggested to him that it lodged properly within level 2.  That aspect of the work of the Guidelines Council lists under determinants of seriousness excessive speed for the conditions, avoidable distracted attention and knowledge of a mechanical defect.  It is not in issue that each of these applied to these facts.  There was here also serious injury in addition to death.
12.	The starting point within level 2 is five years loss of liberty, the range four to seven.  Hence, the submission was, and in Grounds of Appeal remains, that the starting point of five years for a defendant with, as here, no relevant previous convictions following a trial, should not have led the judge to impose a loss of liberty of seven years.  The appellant had mitigation founded principally in his exemplary driving record.  The complaint is that, in sentencing at the very maximum of that bracket, the judge failed adequately to reflect that this was a decent, hard working man without history of poor driving.
13.	The defining feature of sentencing exercises such as these is heartbreak.  The judge would have been acutely aware that what he was about to do would bear absolutely no relation to loss.  His task, however, is calmly and dispassionately to position these facts within appropriate parameters.  
14.	We have been anxious about this term of years.  We acknowledge immediately that these are among the most challenging of sentencing exercises.  We have, however, concluded that there is force in the submissions counsel makes.  In our view, no matter where this set of facts found its natural position within the work of the Guidelines Council, the appropriate sentence after a trial for a man of effective good character and, crucially, with this man's impeccable, long‑term driving record, was five years.  
15.	Underlining this court's understanding of the misery endured by the Nazir family and the inability of any court process to put that right, this appeal will succeed to the extent that we quash the term of seven years and for it substitute one of five.  
16.	It follows therefore, as a consequence of familiar authority, that we must address the length of disqualification.  It would be unwise and unhelpful to leave in place a term of disqualification whose effect now would be to endure some three years after the nominated term of loss of liberty.  With that in mind that too will be quashed, and for it will be substitued a term of five years.