Regina v Kyle Charles Kennedy

No: 2004/05434/A3

Court of Appeal Criminal Division

10 December 2004

Neutral Citation Number: [2004] EWCA Crim 3268

2004 WL 3312637

Before: Mr Justice Cresswell and Mr Justice Simon

Friday, 10 December 2004

Representation

• Mr D Leathley appeared on behalf of The Appellant.

JUDGMENT

MR JUSTICE CRESSWELL:

I will ask Mr Justice Simon to give the judgment of the court.

MR JUSTICE SIMON:

1. On 30 July 2004, the appellant pleaded guilty at the Crown Court at Cardiff to the offences of dangerous driving and driving while disqualified. He pleaded not guilty to a count of wounding with intent contrary to section 18 of the Offences against the Person Act 1861. On 11 August he pleaded guilty on re-arraignment to an offence of unlawful wounding contrary to section 20 of the Act. On 25 August, the appellant, then aged 17, was sentenced by His Honour Judge Durham-Hall QC (insofar as relevant to this appeal) to a term of 18 months' detention and training in respect of the unlawful wounding, 18 months' detention and training in respect of the dangerous driving, and 4 months' detention and training in respect of the driving while disqualified, to be served concurrently; making a total of 18 months' detention and training. He was also disqualified from driving for two years. He appeals against that sentence with the leave of the single judge.

2. The facts were these. At about 5.30pm on 13 May 2004, two police officers on duty in Cardiff Bay saw the appellant riding a scrambler motorcycle. He was not wearing a crash helmet. As he rode towards them the officers had to take evasive action to avoid a collision. The appellant continued to ride the motorcycle in a way that caused various drivers to take evasive action. He then rode out of sight.

3. About ten minutes later two other police officers, PC Evans and Rafferty, were parked and dealing with another matter. They saw the appellant riding the motorcycle without a helmet. There was heavy traffic and a large number of pedestrians. The appellant weaved in and out of traffic without regard to pedestrians or other vehicles. Some pedestrians had to jump out of the way. The appellant performed a U-turn in the street and rode in the opposite direction to the flow of traffic. He rode past the police officers, as if he was goading them. He went through a set of red traffic lights on two occasions, the second of which caused oncoming traffic, which had the right of way, to brake sharply. The appellant went through a third set of red traffic lights, riding on the wrong side of the road into oncoming traffic. He performed another U-turn and again travelled in the opposite direction to the flow of traffic.

4. The two officers made their way on foot to the junction that the appellant was approaching. They stood on the pedestrian crossing while the lights were on red. Constable Rafferty performed a stop signal with his hand. The appellant braked sharply and skidded. He made eye contact with both officers. The appellant then accelerated in the general direction of Constable Evans, who was ahead of him in front of stationary vehicles. Constable Evans moved to avoid him, but the appellant swerved the motor cycle towards the officer. He collided with Constable Evans, knocked him to the ground and continued through the red light. He narrowly missed a collision with a bus.

5. Constable Evans was taken to hospital. A deep cut to the centre of his forehead required three deep dissolvable stitches and fourteen surface stitches. The X-ray of his skull was normal. After the incident he suffered headaches and some mild ringing in his ears. The officer believed that it was the handlebars that caused the injury. We pause to note that Mr Leathley on behalf of the appellant acknowledges that had the officer not been so brave, the accident might not have happened. But the fact is, he was brave and a collision occurred.

6. Following the appellant's identification as the rider of the motorcycle efforts were made to arrest him at his home; but he made off when officers arrived. In the early hours of 14 May the appellant surrendered himself at a police station and asked after the officer. In interview he admitted being the rider of the motorcycle. He accepted that his driving had been reckless and that he had been riding the motorcycle while disqualified from driving. He said that he had no intention of injuring the officer.

7. In passing sentence the judge noted the appellant's plea and the credit to which he was entitled as a consequence. He referred to the favourable pre-sentence and youth offending reports, and letters and references from a large number of people of standing in the local community, which spoke well of the appellant and his potential as a rugby player. This court has looked at, and taken account of, these reports, which focus on the impulsive nature of the offences, and the letters, including a letter from the appellant. But, as the judge remarked, there were other factors to be taken into account. He said:

As the judge had observed, although he was only 17 at the time of these offences, the appellant had a poor record. The judge indicated that he would have imposed a two year order, but reduced it to take into account the time spent in custody which would not count towards the sentence.

8. Realistically it was not submitted that a custodial sentence was wrong in principle. In the grounds of appeal and before us it was urged by Mr Leathley that the sentence failed to take into account the appellant's youth, his early pleas, the period of time on remand, his good references and potential.

9. Despite the urgings of Mr Leathley, we are not persuaded that this court should interfere with these sentences. These were offences which demonstrated a sustained, wilful and reckless disregard for the law and the safety of others. They culminated in the unlawful wounding of a police officer carrying out his duty. The judge was faced with a difficulty task in weighing up the need to punish the appellant for these offences, while paying due regard to the mitigating factors in the case. In our view the sentence he arrived at cannot be described as falling outside of the range of available sentences for these offences. Accordingly, the appeal is dismissed.