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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Jenkins, R. v [2001] EWCA Crim 242 (12 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/242.html Cite as: [2001] EWCA Crim 242

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Friday 12th January 2001

Friday 12th January 2001

1. LORD JUSTICE HENRY: On 20th October 2000 at the Crown Court at Cardiff the appellant pleaded guilty and on 3rd November was sentenced to a twelve months' detention and training order, disqualified from driving for four years and thereafter to take an extended retest for causing death by dangerous driving. The basis of that offence is nothing to do with the driving itself but that it would have been obvious to a competent and careful driver that driving a vehicle in the condition that the vehicle was dangerous. That is the statutory definition to be found in section 2A of the Road Traffic Act 1988. He now appeals against that sentence with the leave of the single judge.
2. The facts of the case are these. On 31st October 1999, when he was 16, the appellant and his best friend were riding his motorcycle on a mountain road in Wales. He had had this motorcycle for a month. He had been given it. It will be seen that the motorcycle was in very bad condition and little had been done to improve the condition of it since this appellant had had it in his possession. He was wearing a crash helmet, but his pillion passenger was not. They had been driving the vehicle all day in the mountains, on mountain roads and meadows. When they were driving along a stretch of mountain road the appellant failed to take a bend. The reason for this was that the throttle on the motorcycle had jammed open and he had been unable to avoid mounting a grass verge and colliding with a wall. The collision was described as 'low impact' by the investigators who had investigated the cause of it, but it was sufficient to throw the pillion passenger forward and his head hit the wall, from which he sustained, most tragically, fatal injuries.
3. When the motorcycle was examined it was found to be totally unroadworthy and poorly maintained. It was in a dangerous condition, the throttle cable not being rooted properly and it could therefore stick open without warning. The brakes and the wheels were also defective.
4. The appellant was subsequently arrested. He was not interviewed for some three months after the events. When interviewed he said that he had owned the motorcycle for about a month; that he had carried out very little maintenance work on the vehicle. He accepted that there were some defects on the vehicle. He said just before the accident the throttle had stuck open and that although he had try to brake he was unable to do so and the motorcycle had hit the wall.
5. The pre-sentence report dealt with both the appellant and the effect of this accident on him. In relation to the appellant himself, the report states that he had acknowledged that the motorbike was in an unroadworthy state but had not fully comprehended the risks he was taking in riding it. The reason for that would seem to be that at his school he had been assessed for special needs and was found to have mild learning difficulties. The writer of the pre-sentence report put those forward as offering some explanation for his failure to recognise the implication of his decision to ride the motorcycle.

"Since the accident", the report informs us, "he has not ridden on any motorbike, having been traumatised by the accident and the death in that accident of his own best friend. He has become very withdrawn, isolated and vulnerable. He has been unable to deal with his experience of being responsible for the death of a good friend."

6. When sentencing the appellant, the judge said this:

"... it is quite clear that you had grave braking problems and throttle problems as well as all the other matters that I have been referred to.

Having heard what your counsel had to say to me I, as you know, retired to my room to further consider the case. What I have been doing is going through again the interview that you had with the police officer. It is quite clear that although there are some matters about the state of that bike that you did not know about or were not sure about, there were certain other matters about the condition of the bike that you did know about, and even for a 16-year-old as you were, it should have been obvious to you that you were riding a potential death trap; if not riding a potential death trap, nevertheless driving a seriously defective motorbike.

I consider that the condition of your bike and your knowledge of the condition of that bike are aggravating features about this case. When I said to your counsel earlier in the case of Boswell - this will not mean anything to you but he will explain it to you - when the court was referring to aggravating features it was giving some examples of it but it was not a closed list and I consider these matters before me in the category of aggravating features, certainly to the extent of your knowledge of the condition of the bike."

7. The judge did not, we interpolate, deal in terms with the mental handicap from which this appellant suffered. He did deal with the mitigating factors and said this of them:

"You pleaded guilty. You were only 16 at the time; you have been waiting a long time to come before the court; you have genuine grief for your friend; and there are matters that are referred to in the letters I have read from friends of yours and relations, and matters contained in the pre-sentence report."

8. Then he concluded with this paragraph:

"You are indeed a young man and I have to reiterate, the courts do not like sending young men inside if they can help. We try to avoid it. But I have a duty to the public as well as to you. There are all these features to be considered in all the circumstances of this case including all the personal matters concerning you. I believe that the proper sentence is one of twelve months' detention and training order. I disqualify you from driving for four years and your licence will be endorsed. There will be a retest."

9. It was against that background that Mr Murphy for the appellant made his submissions to us, emphasising that the appellant's appreciation of the dangerous state of the bike and the risks of driving it in that condition would be less obvious to him because of his learning difficulty.
10. The judge was faced with a very difficult sentencing problem in this tragic case. We are clearly of the opinion that, contrary to the submissions made to us by Mr Murphy, a custodial sentence was justified in this case as a justifiable statement of society's abhorrence to dangerous driving and the use of dangerous vehicles on a public road.
11. By way of mitigation we take into account that the machine had been given to him, although he was clearly not competent to maintain it himself; his mental condition prevented him from fully appreciating its dangerous condition; he has suffered the deepest remorse for having been the cause of his best friend's death; he is of previous good character; there was considerable delay before this case came to trial and he had this terrible case hanging over him all that time.
12. In all those circumstances it seems to us that the sentence of twelve months under the detention and training order was excessive. It is also plain to us from the pre-sentence report that this appellant desperately needs help. Having regard to the fact that he has spent a considerable part of his sentence in custody already the Court feels justified in this case in taking the exceptional course of quashing the sentence of twelve months and replacing it with a supervision order for two years to be supervised by a probation officer. Counsel will explain that to his client.
13. In relation to the disqualification it seems to us that in all the circumstances a disqualification of three years will be sufficient. We quash the order of four years and replace it with one of three.
14. The appellant is not to leave the building without seeing the liaison probation officer to get his instructions from him. Mr Murphy, will you see that that is done?
15. MR MURPHY: My Lord, I will indeed.
16. LORD JUSTICE HENRY: Thank you very much for your assistance.