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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 >> Gibson, R v [2010] EWCA Crim 2813 (18 November 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/2813.html Cite as: [2010] EWCA Crim 2813

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 18 November 2010

1. THE VICE PRESIDENT: This 18-year-old defendant pleaded guilty to aggravated taking of a motorcar, driving whilst unfit and driving uninsured. The judge passed sentences totalling 12 months in custody and the question for us is whether that was either wrong in principle or manifestly excessive.
2. The defendant had spent an evening drinking heavily. In the small hours of the morning he went home. He helped himself to his mother's car and he drove into the centre of Leeds. Subsequent analysis showed that his breath alcohol level was 69, which is about twice the legal limit. It is quite plain that he had a huge amount to drink and was very drunk. His own, no doubt impaired, recollection recalled 12 bottles of strong lager together with quantities of vodka.
3. He was seen by patrolling police officers crossing a red light. Then he came to a halt and it was when he was stationary that they signalled him to wait where he was. He ignored that and did the opposite. He drove off at speed and there ensued a chase. He drove through a number of other red lights, he travelled along the pavement, he ran into a parked van when the van's driver was on foot nearby and narrowly escaped being struck, and eventually he crashed into some bollards so heavily that he broke off the front wheel from the car. To his credit he made no bones about his guilt and he pleaded guilty in the Magistrates Court. That and his apparently genuine regret at what had happened were between them the first aspect of the case which went towards mitigation. Secondly he was a soldier. He had joined the army in May 2009 after a childhood which had been made difficult by circumstances by no means all his responsibility. As a child there had been findings of guilt for assault and he had an admitted history of drug misuse and disruptive behaviour. He had however done quite well in the army in the sense that there were no complaints about his behaviour and he appeared to have put his abuse of drugs on one side. Since he joined the army there had been a single fixed penalty notice for being drunk and disorderly but on no other occasion had he come to the attention of the authorities. So the second part of his mitigation was that he had made a significant effort to improve himself. The third relevant factor was that he would almost inevitably be discharged from the army in the event of any form of custodial sentence, immediate or suspended.
4. The judge approached the case on the basis that after a contested trial a sentence of 18 months would have been appropriate. He gave the full reduction in recognition of the early plea of guilty and the admission of guilt and accordingly he arrived at the sentence of 12 months.
5. Whatever offences were charged, the gravamen of this case was dangerous driving through urban streets at night whilst drunk. No one was in the end injured but that was a matter of the purest chance. Moreover, the dangerous driving was whilst attempting to get away from the police and for that matter from a stationary start. Nothing would have been easier than simply to get out of the car once the police had seen him.
6. The maximum penalty for aggravated taking (which was the principal offence charged) is two years. The drink driving charge carries a maximum of six months on summary trial only, but the judge rightly made the sentence on that charge concurrent because of course the drink fell to be taken into account as a serious aggravating feature of the principal offence. The judge rightly approached the case on the basis that any custodial sentence would be likely to mean the defendant's discharge from the army. That was obviously regrettable in the defendant's own interest. The judge gave thought to the question of whether the public benefit of keeping the defendant in the forces outweighed the public interest in inflicting what would otherwise be the inevitable punishment. Sometimes the answer to that question will be that the public interest is in preserving a useful military career. It depends upon the circumstances of the career and it depends what the defendant has done. The judge on the spot must make these decisions. They are among the many difficult decisions that sentencing judges have to make. This judge was not persuaded that he could justify an altogether non-custodial penalty in this case in sharp contradistinction to what would inevitably happen to anybody else and his observation that membership of the armed forces cannot always mean that a defendant should not be sent to custody is plainly correct.
7. Mr Morris, who has presented Gibson's case concisely and persuasively, realistically recognises that the sentence was not wrong in principle. He invites us to say, however, that as an act of mercy this court should treat it as manifestly excessive and substitute a community order. We regret to say that we feel unable to do so. The sentence which was imposed was perfectly within the judge's proper range and he was quite entitled to take the view that in this case the military career could not deflect him from the necessary of imposing it. Accordingly, this appeal against sentence must be dismissed.
8. We need to add one procedural matter. Mr Morris' written grounds briefly mentioned a data collection process which is now undertaken by judges in order to provide the Sentencing Council with statistical information about sentences imposed. That is not because Mr Morris raised it. It is because the judge drew attention in the Crown Court to the existence of a sentencing survey form which has been provided to judges for this purpose. We want to say very clearly that there was no occasion for the judge to refer to the form and nor need the grounds of appeal have done so. There is no occasion at all for any judge who is hearing, or any advocate who is making, submissions as to sentence to make any reference to this document at all. Its existence is or should be well-known. It is part of the data collection process which has been required by statute of the Sentencing Council. The relevant provisions are to be found in section 128 to 130 of the Coroners and Justice Act 2009. It is therefore a necessary part of the Council performing the statutory duty laid upon it by Parliament. However, the only purpose of the form is the collection of information about what the judge took into account, so that some statistical analysis such as is possible can follow.
9. Unless the judge finds it a convenient aide memoire, as some judges do, the form has no bearing whatever on the process of him arriving at the right decision as to sentence, nor has it ever any bearing on whether that decision is appealable. The judge's sentence is passed in a public court. Everything which he says is recorded. If there is an appeal and if it is suggested that his sentence was either wrong in principle or manifestly excessive then everything that the judge said will be transcribed for this court. The survey form is by contrast no more than a summary so that analysis can be carried out subsequently elsewhere. The judge's sentence must stand or, if necessary, fall on what he says in court. This court will not look at any subsequently collated data form, any more than it would look at any other post court statement whether made by the judge or anyone else. The judge's concern that an advocate might need to check that the form was accurate in order to consider the lawfulness of the sentence was an entirely misplaced concern.