R v Peter Lupai

Wednesday 23rd November 2022 THE LORD CHIEF JUSTICE: I shall ask Mr Justice Goose to give the judgment of the court. MR JUSTICE GOOSE: Introduction 1. The appellant, Peter Lupai, who is aged 28, appeals with the leave of the single judge, against a sentence which was imposed by His Honour Judge Nawaz in the Crown Court at Reading on 16th June 2022. He was sentenced to a total of five years and nine months' imprisonment, and was also disqualified from driving. The court directed that the appellant complete an Extended Test before he be permitted to return to driving. Consequential orders relating to drugs offences were also made. 2. On 28th March 2022, in the Crown Court at Reading, the appellant pleaded guilty to two offences of being concerned in the supply of Class A drugs. On 14th April 2022, he pleaded guilty at the magistrates' court to an offence of causing serious injury by dangerous driving and also to possession of a Class B drug (cannabis). For those offences he was committed to the Crown Court for sentence. 3. On 16th June 2022, Judge Nawaz imposed concurrent sentences of three years and nine months' imprisonment for the supply of Class A drugs, and a consecutive sentence of two years' imprisonment for the driving offence. No separate penalty was imposed for the offence of possession of a Class B drug. The judge also proceeded to impose an extended period of driving disqualification, in respect of which it appears that an error in arithmetical calculation may have been made. However, for reasons that will become clear within this judgment, we do not make any further reference to that issue. 4. The appellant's appeal against sentence concentrates upon the sentence for the driving offence. It makes no criticism of the other sentences. Accordingly, we will do likewise, making it unnecessary to summarise further the facts of the drugs offences. The Facts of the Offence of Causing Serious Injury by Dangerous Driving 5. During the afternoon of 3rd July 2021 the appellant was driving an Audi A3 motor vehicle on the Basingstoke Road in Aldermaston, Berkshire, when he collided head on with a Vauxhall Astra motor vehicle being driven by the victim. The collision occurred as the appellant attempted to overtake vehicles in front of him, whilst he was on the wrong side of the road, approaching a blind bend in which he was unable to see the victim's vehicle approaching. Witnesses to the inevitable accident described the appellant's driving as "stupid and reckless" and "unimaginably stupid on a bend". Another described the driving as "the worst display of driving I've ever seen". 6. As a consequence of the collision, the victim sustained fractures to two of his vertebrae, in the lower part of his spine. He also sustained a fracture to his left hand and to two of his ribs. He remained in hospital for five days. His recovery was slow and painful, as he later described in his victim personal statement. He required substantial care and assistance from his partner. Almost a year after the accident he remained anxious and concerned for his safety. 7. At the time of this offence the appellant was aged 27. He had previous convictions. Disregarding those relating to drugs, the appellant's only previous driving offence was in September 2021, when he was fined and disqualified for 12 months for driving while under the influence of drugs. The Sentence 8. In sentencing the appellant the judge correctly observed that there is no offence specific guideline for the offence of causing serious injury by dangerous driving. Accordingly, he referred to the analogous guideline in respect of causing death by dangerous driving. The judge concluded that the appellant's offence fell within category 3, because it was driving that created a significant risk of danger when driving on the wrong side of the road and approaching a blind bend. The judge adopted a starting point of three years' custody which, after allowing for one third discount for an early guilty plea, led to the sentence of two years' imprisonment. That sentence was ordered to run consecutively to the sentences for the drugs offences. On behalf of the appellant it was submitted at the sentence hearing that the judge may have overlooked the fact that the starting point of three years' custody within the guideline for death by dangerous driving needed adjustment, to reflect the fact that the victim in the appellant's case had not died as a result of the accident. The judge confirmed that he had taken that into account and declined to change the sentence he had imposed. The Appellant's Grounds of Appeal 9. On behalf of the appellant it is submitted by Mr Doherty, for whose submissions we are grateful, that the sentence of two years' imprisonment was manifestly excessive because it was a sentence at the starting point for the more serious offence of causing death by dangerous driving. The point is highlighted by the different maximum sentence for the two offences: 14 years' imprisonment for the offence of causing death by dangerous driving, and five years' imprisonment for causing serious injury by dangerous driving. It is submitted that an appropriate sentence would have been two years' imprisonment, rather than three, and that after full discount for the guilty plea the sentence should have been 16 months' imprisonment, to be served consecutively to the sentences for the drugs offences, rather than two years' imprisonment. Discussion and Conclusion 10. The absence of an offence specific guideline for serious injury caused by dangerous driving means that the court should consider the statutory maximum sentence together with sentencing judgments of the Court of Appeal, particularly those involving points of principle or guideline, and guidelines for analogous offences. Such is made clear within the General Guideline: Overarching Principles at Step 1. Accordingly, the judge correctly turned his mind to the guideline for causing death by dangerous driving and identified the appellant's offence as falling within category 3, the lower category identified in the guideline. That provided for a starting point of three years' custody, with a range of two to five years. It was necessary then to adjust that sentence to reflect that this offence caused serious injury and not death. 11. The appellant's written submission that this adjustment should always lead to a movement downwards because the consequences of the driving were less serious, does not follow. It will always depend on the harm caused. With a maximum sentence of five years' custody, harm which involves life-changing injuries to one or more victims will inevitably lift the sentence towards the top of the range, notwithstanding that death did not follow. Therefore, in this case, where the serious injury caused to the victim was not the most serious, nor was it of lesser seriousness, it will lead to some downward adjustment from three years within the range of sentencing. 12 On behalf of the appellant it was submitted that R v Smart [2015] EWCA Crim 1756 is of assistance to the appellant. However, although of interest, we are not persuaded that it is of much assistance, given that it has different circumstances both in relation to the injury caused to the victim and also the effect of the offence upon the offender in that case. Our decision is, therefore, made independently of that case. 13. We are satisfied that the harm caused by the appellant's dangerous driving requires the sentence to be lower than was fixed by the judge. With respect to him, the sentence before the discount for the guilty plea we consider should be two years, rather than three years' imprisonment. After allowing for a full discount for the guilty plea, the sentence should therefore be reduced to 16 months' imprisonment. 16. We turn to the obligatory disqualification from driving. The appellant's sentence of three years and nine months' imprisonment (45 months) for the drugs offences remains unaffected by this appeal. No objection has been taken to the imposition of the consecutive sentence for the driving offence. Accordingly, the total sentence is now five years and one month's imprisonment (61 months). In accordance with R v Needham [2016] EWCA Crim 455, the discretionary disqualification of 48 months imposed by the judge requires an extension of eight months under section 35A of the Road Traffic Offenders Act 1988, and a further 22½ months under section 35B of the Act. The extended disqualification period is, therefore, a total of 78.5 months. 17. Accordingly, we reduce the sentence on offence 1 of the committal for sentence (causing serious injury by dangerous driving) to 16 months' imprisonment. The extended disqualification from driving will reduce in consequence to 78½ months. The remaining orders are unaffected. 19. To that extent, therefore, this appeal is allowed. ___________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ______________________________