Regina v Martin Anthony Farnell

When deciding whether to suspend a custodial sentence, a judge must weigh the guideline factors both for and against suspension. Brief reasons which focus on the factor favouring immediate custody do not alone justify appellate intervention. The appellate court must assess the substance of the discretionary exercise and interfere only for an error of principle or a conclusion outside the reasonable range.

Hardship to third parties must be taken into account, but it is not decisive and ordinarily requires supporting evidence. A prolonged, retaliatory course of dangerous driving on a busy motorway may justify immediate custody despite the absence of injury. A custodial sentence for failing to surrender to bail must reflect the actual seriousness of the failure and any interference with justice.

The appellant pleaded guilty at Birmingham Crown Court to dangerous driving following a prolonged road-rage pursuit of a lorry, much of it on the M6. He also pleaded guilty to failing to surrender to bail during the protracted criminal proceedings.

He received 18 months’ imprisonment for dangerous driving and a consecutive month for the bail offence. He was disqualified from driving for three years, with an extension period and an extended re-test requirement.

After granting extensions of time for late appeal papers, the court considered whether the dangerous-driving sentence was manifestly excessive, whether it should have been suspended, and whether the consecutive sentence for failing to surrender was excessive and inconsistent with totality.

1. The appeal was allowed to a limited extent. The court refused leave to appeal against the 18-month sentence for dangerous driving, but quashed the consecutive one-month sentence for failing to surrender to bail and substituted one week’s imprisonment concurrently. The total term was therefore 18 months.

2. The dangerous driving was an exceptionally serious example of the offence. It continued for about 30 minutes, mostly on a busy motorway, involved deliberate manoeuvres to impede a lorry, collisions or probable collisions, and persistence despite police warnings. The absence of injury was fortuitous. The appellant’s fury, lack of self-control and wildly disproportionate response to a trivial incident established high culpability and a very high risk of death or serious injury. A notional sentence of 21 months after trial, reduced to 18 months for the guilty plea, was not manifestly excessive.

3. On suspension, the judge’s reasons were brief and concentrated on the need to mark the offence by immediate custody. Applying R v Barraclough (David Selwyn) [2022] EWCA Crim 1101, a failure to give fuller reasons was not itself a ground of appeal. The question was whether the necessary balancing exercise had substantively been performed and whether the conclusion involved legal error or lay outside the reasonable evaluative range. The judge was entitled to give great weight to the seriousness of this conduct. The materials did not show sufficiently strong personal mitigation, rehabilitation prospects or evidenced third-party hardship to displace immediate custody.

4. A one-month sentence for failing to surrender implied a six-week post-trial sentence. That level was appropriate only for a deliberate attempt to evade justice causing substantial delay or interference with the administration of justice. No such basis was identified. The offence should have been treated as a failure short of reasonable excuse, attracting a Band A fine starting point. The substituted concurrent week’s imprisonment achieved a proper overall sentence.

5. Consequentially, the driving disqualification was amended under Road Traffic Offenders Act 1988, section 35A, to three years with a nine-month extension period.

• Court of Appeal (Criminal Division): allowed the appeal against sentence only to the extent of reducing and making concurrent the sentence for failing to surrender to bail.
• Crown Court at Birmingham: imposed 18 months’ imprisonment for dangerous driving and a consecutive month for failing to surrender to bail, with a driving disqualification.