Usaceva, R. v

On cogent circumstantial evidence, a sentencing judge may find that a driver was using or manipulating a mobile telephone at the time of a fatal collision. Relevant previous mobile-telephone driving offences and a lack of acceptance of responsibility may aggravate sentence.

The impact of unavoidable custody on a child may mitigate its length, but it does not require a reduction. Where disqualification is ordered for an offence involving obligatory endorsement, Road Traffic Offenders Act 1988 section 44(1) requires endorsement of the conviction and disqualification, but not penalty points.

The appellant pleaded guilty to causing death by dangerous driving after her car struck a vehicle from behind, causing it to enter the path of an articulated lorry. She received six years’ imprisonment, a ten-year driving disqualification and an endorsement of 11 penalty points.

She appealed the sentence as excessive, wrong in principle and imposed on an incorrect factual basis. The central issues were whether the judge could find that she was manipulating mobile telephones at the time of the collision, whether the sentence properly accounted for her child’s welfare, and whether penalty points could accompany disqualification.

1. The appeal was allowed only in relation to the endorsement order. The appeal against the six-year custodial sentence was dismissed. The order endorsing the appellant’s licence with 11 penalty points was quashed.
2. The sentencing judge was entitled to find that the appellant was manipulating one or both mobile telephones as she approached the collision. The recent telephone use, her previous mobile-telephone driving offences, her false account and concealment of one telephone, her refusal to give evidence on the issue, and the absence of another plausible explanation justified that conclusion. The case was therefore properly placed in category 2.
3. The judge was also entitled to treat the previous fixed penalties as serious aggravating features. He could take account of her failure to accept responsibility and her lack of genuine remorse. A notional sentence of seven years after trial, reduced by one year for the belated guilty plea, was within his proper discretion.
4. The judge had properly considered the serious disruption that imprisonment would cause to the appellant’s child. The approach in Petherick [2012] EWCA Crim 2214 was that family effects may mitigate sentence where proportionate custody cannot be avoided, but may not do so. Although the judge’s reference to the deceased driver’s Article 2 rights was unfortunate, he was entitled to conclude that the public interest required no reduction for the child’s Article 8 interests.
5. Under Road Traffic Offenders Act 1988 section 44(1), where a court orders disqualification for an offence involving obligatory endorsement, it must endorse the conviction and disqualification. Penalty points are required only where the court does not order disqualification. Applying Kent 77 Cr.App.R 120 to the current legislation, the additional endorsement of penalty points was impermissible.

• Court of Appeal (Criminal Division) In [2015] EWCA Crim 166, the court dismissed the appeal against the six-year sentence but allowed the appeal solely to quash the order endorsing 11 penalty points.
• Sentencing court On 31 July 2014, His Honour Judge Enright sentenced the appellant, following her guilty plea, to six years’ imprisonment and a ten-year disqualification, with 11 penalty points endorsed.