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circumstances in the UK Regina v Anthony Christopher Antoniou, Gavin Delaney-McDermott
No. 2003/05885/D3
2003/06725/D3
Court of Appeal Criminal Division
5 November 2004
Neutral Citation Number: [2004] EWCA Crim 2984
2004 WL 3167573
Before: Lord Justice Clarke Mr Justice Gibbs and Mrs Justice Dobbs
Friday, 5 November 2004
Representation
- Mr R Sutton QC and Miss J Gray appeared on behalf of The Appellant Anthony Antoniou.
- Miss K Bex appeared on behalf of The Appellant Delaney-McDermott.
- Miss A Lewis appeared on behalf of The Crown.
JUDGMENT
LORD JUSTICE CLARKE:
I will ask Mrs Justice Dobbs to give the judgment of the court.
MRS JUSTICE DOBBS:
1. On 9 September 2003, in the Crown Court at Kingston upon Thames, before His Honour Judge Howarth, the applicant Delaney-McDermott pleaded guilty to causing death by dangerous driving. On 18 September 2003, the applicant Antoniou was convicted of causing death by dangerous driving. The applicant Antoniou now applies for leave to appeal against his conviction.
2. Shortly put, the prosecution case was one of the applicants racing down a single carriageway road, overtaking others, at speeds, according to witnesses, double the speed limit which was on that particular road 40mph. There came a stage when Delaney-McDermott, who was following closely behind Antoniou collided with a motor bike on the other side of the road, killing the pillion passenger and seriously injuring the motor cyclist.
3. The case of Antoniou was that he was not racing. He accepted that he was driving at speed and that Delaney-McDermott was following him.
4. During the course of the trial, in cross-examination Antoniou was asked by counsel for the Crown whether he had informed his insurers about a chip that had been put into his car to make his car go faster because in interview he said that he had lied about having a chip put in his car. The reason, he said in evidence, was that he had not told his insurance company about this. He was asked in cross-examination if he had since told his insurance company about it. He said that he had not because he was not insured and that he had not driven the car since. Putting it shortly, it was then put by Crown counsel that the applicant Antoniou had been stopped driving the car in Brixton in April 2003, which he denied. Further investigations revealed that (a) he was not stopped in Brixton on that day, and (b) that the police could not say if there was such an incident in Brixton, that Antoniou had been the driver. The judge had allowed such cross-examination, contrary to the submissions made Mr Sutton QC.
5. At the end of the trial, following the summing-up, there was a note from the jury asking for certain directions, in particular whether there was a difference between racing and chasing.
6. The grounds of appeal are that the conviction is unsafe, first, because the trial judge erred in ruling that the Crown could cross-examine the applicant Antoniou regarding the commission of an offence (driving without insurance), other than the one with which he was charged; and secondly, having allowed that cross-examination, he failed to discharge the jury. The second ground of appeal is that the trial judge's direction given in response to a note from the jury as to whether there was a difference between racing and chasing was inadequate.
7. In refusing leave to appeal against conviction on ground 1 the single judge observed:
“The cross-examination of the applicant about his driving his car on 26 April 2003 came to nothing, given his denials and the absence of evidence that he was driving on that occasion. In the circumstances the judge was plainly entitled to take the view that any prejudice to the applicant could be cured by an appropriate direction to the jury, and therefore to refuse the application to discharge the jury.”
The single judge found that the actual direction given by the trial judge was “more than adequate”. It was in these terms:
“There is not a shred of evidence that the defendant was anywhere near his car, or anywhere near Brixton, on that day in April.”
We note also that during the course of the trial itself the judge had told the jury to ignore it and, additionally, counsel for both the Crown and the applicant Antoniou had told the jury to ignore that incident. The single judge went on to say:
“In the event nothing turns on whether the line of questioning was or was not legitimate in principle.”
We agree and reject that ground.
8. Turning to the second ground, the direction to the jury, the history is as follows. Following the note from the jury there was discussion between counsel about the appropriate direction. The second direction, which is the one at issue, reads as follows:
“Clarification on what is racing, and does chasing differ from racing, and if someone is driving fast and someone is chasing him, does that infer guilt?”
The judge answered the note in this way:
“‘Racing’ is an ordinary every day word. You must give it its normal meaning, and decide on the evidence if the conduct of the defendants amounted to racing. You can draw inferences from the evidence as you find it to be. If you came to the conclusion that Antoniou and McDermott may have been acting independently of each other, without an agreement to drive at excessive speed, then your verdict will be not guilty.”
The judge asked the jury if they wanted him to read it again to them and they said no. During the discussions between counsel, Mr Sutton accepted that the direction which the judge proposed to give was a perfectly proper one, but he invited the judge to add for further clarification:
“If you find racing, guilty; if chasing, not guilty”.
The prosecution disagreed with this simplistic approach. Mr Sutton then raised a further issue. He said:
“Your Honour, I am sure it is my fault — it is probably because I was thinking along the lines of chasing — but I am a little concerned that your Honour has left it to the jury on the basis of excessive speed, rather than either dangerous sped or dangerous manner, because of course excessive speed by itself may not amount to dangerous driving ….”
Mr Sutton invited the judge to give a further direction. The judge had the jury back and gave a further direction. He said:
“You will recall I said: ‘If you concluded that Antoniou and McDermott may have been acting independently of each other, without an agreement to drive at excessive speed, then your verdict will be not guilty’. Can I add words to that? If you concluded that Antoniou and McDermott may have been acting independently of each other, without an agreement to drive at excessive speed that was dangerous, then your verdict will be not guilty — all right — because excessive speed by itself may not be dangerous.”
In refusing leave on that ground, the single judge said:
“The final form of direction given in response to the jury's note requesting clarification on the issue of ‘racing’ was legally accurate and provided sufficiently specific guidance on the issue raised.”
We agree with that observation. We therefore reject the second ground of appeal. In our view, this application is without merit and is refused.
(The court was addressed in relation to appeals against sentence on behalf of both appellants)
9. On 9 September 2003, in the Crown Court at Kingston upon Thames, before His Honour Judge Howarth, the appellant Delaney-McDermott pleaded guilty to one count of causing death by dangerous driving. On 18 September 2003, before the same judge, the appellant Antoniou was convicted of causing death by dangerous driving. On 21 October Antoniou was sentenced to seven years' imprisonment and Delaney-McDermott was sentenced to five years' imprisonment. Both appellants were disqualified from driving for ten years and ordered to take an extended driving test. They appeal against sentence by leave of the single judge.
10. The facts of the case are that at about 11pm on 23 August 2002, Robert Green, an off-duty fireman, was riding his motorcycle on Croydon Road, Mitcham. His wife Laura, an off-duty police officer, was riding pillion. The motorcycle was involved in a collision with a silver VW Golf driven by McDermott. Laura Green was thrown from the motorcycle. She sustained fatal internal injuries. She died three hours later in hospital. Robert Green was trapped under the motorcycle, which caught fire. He suffered serious injuries to his legs. The appellants and other motorists rescued Robert Green from under his motorbike. Mr Green later had to have both legs amputated. He is confined to a wheelchair. Another gentleman, Graham Chadwick, who was driving a BMW Mini behind the motorbike, suffered serious facial injuries. He required two operations. The appellant Delaney-McDermott was treated for minor injuries.
11. The prosecution case was that the appellants were racing at speeds up to 70–80 miles an hour on the Croydon Road, a single carriageway which had a 40mph limit. The prosecution relied on various witnesses who described the appellants' driving. They were travelling down the centre of the road, overtaking a line of traffic which was approaching a roundabout. Antoniou was in the lead. He was driving a black VW Golf. Mr Delaney-McDermott was driving right behind him — “glued together” in the words of one witness. He braked suddenly, lost control and swerved into the path of the Greens, who were travelling in the opposite direction.
12. Antoniou's car had been modified. It was not involved in the collision. There was substantial damage both to the Greens' motorbike and the BMW Mini, which on examination did not have any defects. Delaney-McDermott's car on examination was found to have a defective foot-brake pedal and a leaking nearside damper. It sustained extensive damage to its front. Speed of impact was difficult to assess, but it was thought to be between 52–65mph if the motorbike was travelling at 40mph.
13. The appellants were arrested and interviewed. In interview Delaney-McDermott made no comment. Antoniou denied having installed the chip so that his car would go faster and denied exceeding the speed limit. He later accepted that he had modified his car. Delaney-McDermott pleaded guilty at an early stage. Antoniou's case at trial was a denial. Although he accepted that he was speeding, he said that he was not racing or driving bumper to bumper, and that Delaney-McDermott was merely following him. He said that he had heard something behind him, turned around and went back to assist at the scene of the accident. He admitted lying in interview about having his car modified. He explained that he had panicked because he had not informed his insurance company about it and was concerned that that may void any insurance policy.
14. The appellant Antoniou is now aged 22, having been born on 10 July 1982. He has two previous convictions: possession of cannabis in 2001, for which he was fined; and theft in 2002, for which he received an 80 hour community punishment order.
15. The appellant Delaney-McDermott is aged 22. He has no previous convictions or cautions.
16. In the pre-sentence report it is said that, despite acknowledging the jury's verdict, Antoniou still maintains that he was not racing. He was a tyre fitter. He lived with his partner and four-and-a-half month old son. He was a man with a passion for cars. He is described in a prison report as a polite, respectful and mature individual who has been placed on the enhanced regime. He had produced negative drug tests since his arrival and had caused no discipline problems.
17. In his pre-sentence report Delaney-McDermott also denied racing during the incident. Following the accident he had been consumed with guilt about the death and injury of the victims. He was described as a hard-working man who appeared to have good prospects. This was his first offence. He had shown remorse. He had been in employment since leaving school. He presented a low risk of re-offending. The prison reports states that he is polite and compliant. He had been progressed on to the community spur for prisoners. His standard of behaviour was high and he was being considered for enhanced status.
18. Psychiatric reports were obtained in respect of both appellants. The report in respect of Antoniou dealt with his interest in cars in childhood. He had not suffered from any mental or depressive disorders prior to the offence, but the accident had had a severe effect upon him and he had suffered severe post-traumatic stress disorder.
19. The report on Delaney-McDermott said that he exhibited symptoms consistent with post-traumatic stress disorder and that he was being treated for depression. He had no history of any psychiatric illness. It seems that he has a good prognosis.
20. In passing sentence the judge observed that the appellants' dangerous driving killed one person and seriously injured two others. The dangerous and aggressive driving was intentional, which seriously aggravated the offence. Although the collision occurred at 60mph, witnesses who were driving within the 40mph speed limit had seen the appellants driving twice as fast as they were. But for the accident they would have continued driving in that dangerous manner. Neither had taken drugs or alcohol and neither had relevant previous convictions. Delaney-McDermott was of good character and had shown remorse by his plea as soon as the relevant expert evidence was available. Account was taken of the impact statements, the psychiatric reports and the psychological effect on both appellants, as well as the pre-sentence reports, the mitigation, the appellants' personal circumstances, their character references and their ages.
21. The grounds of appeal against sentence in relation to both appellants is that the sentence was manifestly excessive. The main ground of appeal is that the judge, in following the guidelines in R v Cooksley [2003] EWCA Crim 996, [2004] 1 Cr App R(S) 1, took too high a starting point, bearing in mind the various mitigating features. We remind ourselves that what was said in Cooksley are guidelines, and that the figures for each category given are starting points and not absolute figures for each bracket.
22. Cases of racing on busy roads are extremely serious. They involve speed and often aggressive driving. They carry the obvious risk of injury to the person and damage to property. This risk is increased when a souped-up car or a poorly maintained car with defects is involved.
23. There are two main aggravating factors in this case: excessive speed and serious injury to two other people, apart from the victim who was killed. When we use the expression “excessive speed”, there is no double accounting. It was racing. The judge found that there was also an element of aggressive driving, although this is not a major factor. In the case of Delaney-McDermott, an additional aggravating factor was the fact that he was driving a poorly maintained vehicle. There is a possibility that it contributed to the accident.
24. Taking into account all the mitigating factors, we consider that the sentences passed by the judge in the court below were in both cases too high. As a result, we quash the sentence of seven years passed on Antoniou and substitute it with a sentence of six years' imprisonment. In the case of Delaney-McDermott, we quash the sentence of five years' imprisonment and substitute a sentence of four years. For the disqualification of ten years, we substitute periods of seven years' disqualification. To that extent these appeals are allowed.