Judgment: approved by the Court for handing down
(subject to editorial corrections)

Delivered:	14.09.2001

Ref:  CARF3492

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

THE QUEEN

-v-

CHARLES JOHN GAYNOR

_____ 

CARSWELL LCJ

	This is an application for leave to appeal against sentences imposed by the Recorder of Belfast, His Honour Judge Hart QC, at Belfast Crown Court on 2 March 2001, the applicant having pleaded guilty on arraignment on 23 January to the offences for which he was sentenced.  The sentences under appeal consisted of three consecutive prison sentences for escaping from lawful custody, dangerous driving and driving while disqualified.  The effective total sentence was one of three and a half years’ imprisonment.  The issues argued were whether the sentences were manifestly excessive, whether they should have been made consecutive and whether the judge should have made a custody probation order.
	On 7 September 2000 the applicant had commenced to serve sentences of imprisonment at HM Prison Maghaberry, having been sentenced to two terms in the previous week.  He was escorted by prison officers to Belfast City Hospital for treatment, where he arrived in a wheelchair.  At the hospital he asked to go to the toilet, following which he was assisted by prison officers back into the wheelchair.  Before his handcuffs could be reapplied he jumped from the chair, pushed it back, causing one of the officers to lose his balance, and made his escape.  Although pursued by another officer out of the hospital into Lisburn Road, he managed to evade him and get away.  He made his way home, where his wife advised him to give himself up.  He rejected this advice and remained at large for the ensuing week.  
	On 15 September 2000 he was seen by police officers driving a Renault car in an erratic manner at a supermarket car park in Ballygomartin Road, Belfast.  He drove the vehicle directly at the officer who signalled to him to stop, made off up Ballygomartin Road and turned into Forthriver Road.  Some distance away he was cornered by police and apprehended.  The manner of his driving in the course of his attempted escape, during which he drove at speeds of up to 100 miles per hour, was rightly described by the judge as “appallingly dangerous”.  He summarised in his sentencing remarks the way in which he endangered other drivers and pedestrians:
“(1)	by overtaking a line of approximately 10 to 12 vehicles on the wrong side of the Ballygomartin Road – although fortunately there was no oncoming traffic at the time.  Secondly, having regained his own side of the road the defendant, without any warning, turned sharp right across oncoming traffic into a slip-road.  By turning right in this way the defendant caused an oncoming car to swerve sharply, narrowly avoiding a head-on collision with another oncoming vehicle.  (3) The slip-road into which the defendant turned was for one-way traffic (against him).  Fortunately there was no traffic coming towards him at the time.  (4) As the defendant drove along he often cut corners.  (5) As the defendant passed the junction with Forthriver Drive he pulled onto the wrong side of the road and overtook 4 cars as he went over the brow of the hill.  In doing so he could not have seen any oncoming traffic until the last moment; and had there been any oncoming traffic a collision would have been certain.  Fortunately there was no oncoming traffic.  (6) As the defendant regained his own side of the road a young child (estimated by Constable Adams as being possibly 6 to 10 years of age) was trying to cross the road.  Seeing the oncoming car the young girl tried to get out of the way, but collided with a parked car and fell to the ground.  As he passed, the defendant missed her by what Constable Adams described as ‘a matter of inches’.”

	A subsequent breath test showed that the applicant had a level of 71 micrograms per 100 millilitres, almost twice the permitted limit of 36 micrograms.  He was a disqualified driver, having been disqualified for several long periods in the previous two years, the latest being a 12-year disqualification imposed on 4 September 2000.  When he was eventually stopped the applicant refused to leave his car.  He was arrested, but struggled and fought with the officers, causing injury to the hand of one of them.  On the way to the station he gave a false name and address.
	The applicant is now aged 37 years.  He lives with his wife and five children in Belfast.  He claims to be a qualified tiler, but has been unemployed over much of the last 20 years.  He has persistently over-indulged in alcohol and, according to the pre-sentence reports, alcohol abuse has been a significant factor in his lifestyle.  Although he had a stable family background as a child, he began to play truant from school and his court record commences with convictions for a series of burglaries in 1980, when he was aged sixteen years.  His criminal behaviour escalated over the next 20 years, with a long series of offences, mainly burglary and theft and road traffic offences.  He has been sent to prison a number of times and regularly disqualified from driving.  Notwithstanding this, he committed ten offences of driving while disqualified during the 1990s, seven drink-driving offences and two of reckless driving.  In 1989 he was convicted of being unlawfully at large.  The frequency of his re-offending has not decreased in recent years, and he appeared in court four times in the year 2000.  The pre-sentence report describes him as accepting prison as an inevitable consequence.  	
In that report the probation officer enumerates as influences upon the applicant alcohol abuse and negative peer and community associations.  He admitted that he reacts impulsively and rarely considers the consequences of his actions, and the probation officer states that there is little evidence of any concern for the victims of his offences.  The applicant stated that he was anxious to seek specialist assistance to address his alcohol abuse, but acknowledged that this would require a dramatic change in his lifestyle.  The report comments:
“His past lifestyle would raise some concerns about the ability to sustain this apparent motivation upon his release ...  Alcohol abuse has played a significant factor in the defendant’s lifestyle.  This allied to long periods of unemployment, negative peer and community influences have contributed to a rather negative lifestyle.  Despite deterioration in his physical health and absence from the family home for lengthy periods while in prison Mr Gaynor continued to re-offend on a persistent basis.  It is therefore difficult to be optimistic about his ability and motivation to make and sustain the dramatic changes in his lifestyle needed if he is to avoid further offending.”

The probation officer concluded her pre-sentence report by setting out what would be required if the applicant is to succeed in this aim:
“In particular Mr Gaynor needs to:

•	Seek specialist intervention to address his alcohol dependency.

•	Consider alternative occupations during his daily routine to misuse the negative influences of his former peer associations.

•	Begin to accept responsibility for his own actions and to consider the concerns of others, notably victims, who have been adversely affected by his offences.

These areas could be addressed by a period of statutory supervision upon release.  In addition the defendant would benefit from attending an Alcohol Management Programme.  This would require him to participate in an intensive 8 day programme and consideration could then be given to making a formal referral to a Community Addictions Team or a residential facility.”

	The learned Recorder gave careful consideration to the circumstances affecting the sentences which he imposed.  He decided first that it was proper to impose consecutive sentences for escaping from custody, driving while disqualified and dangerous driving.  Having set out the applicant’s record in some detail he concluded that he was a habitual offender who represented a serious danger to the public.  He considered that a custody probation order would not serve to rehabilitate the applicant, for he did not think in the light of the contents of the pre-sentence report that there was any prospect of his changing his ways.
	The judge accordingly imposed the following sentences:
Count 1, escaping from lawful custody – 12 months.
Counts 2 and 3, dangerous driving – 21 months, concurrent with each other but consecutive to the sentence imposed on Count 1.
Count 5, driving with excess alcohol – four months concurrent, with ten years’ disqualification.
Count 6, driving while disqualified – nine months, concurrent with Count 5 but consecutive to the sentences imposed on Counts 1, 2 and 3.  
Count 7, no insurance -- £50 fine.
Count 8, obstructing a constable, three months concurrent.
Count 9, assaulting a constable, three months concurrent.
Count 10, resisting a constable three months concurrent.
The effective sentence was therefore three and a half years’ imprisonment.
	The applicant’s counsel did not present any argument to us on the issue of the propriety of the judge’s decision to impose consecutive sentences.  We have nevertheless taken the opportunity to give some consideration to the issue, in order to assist sentencers in dealing with road traffic offences.  It is a matter for their discretion whether sentences imposed for different offences should be made concurrent or consecutive.  The principle which should guide them is that they should normally be made concurrent where they arise out of the same transaction or incident: Archbold, 2001, ed, para 5-145; R v Magill [1989] NI 51.  Consecutive sentences may, however, be considered even where this applies, if the circumstances demand it.  This may well apply where a defendant who is driving while disqualified commits driving offences such as dangerous driving or driving with excess alcohol.  If the sentences were made concurrent, the defendant would not suffer any real penalty for committing those further offences: cf R v Wheatley (1983) 5 Cr App R (S) 417, per McCowan J.  In R v McShane [1998] NIJB 64, to which the Recorder referred, consecutive sentences had been imposed by him for dangerous driving and driving while disqualified, but the issue of the correctness of doing so was not pursued on appeal.  In R v McMullan (1992, JSB Sentencing Guideline Cases, para 7.2.1) this court upheld the imposition of a consecutive sentence for reckless driving, on top of several sentences for taking and driving away and driving while disqualified.  In doing so it followed the decision in R v Newbury [1975] Crim LR 295, where it was pointed out that if sentences in such cases were not made consecutive it would encourage those who took vehicles to drive as hard as they could to avoid arrest.  We observe, however, that in England it is the normal practice not to impose consecutive sentences for reckless driving and driving while disqualified: see R v Skinner (1986) 8 Cr App R (S) 166; R v Matthews (1987) 9 Cr App R (S) 1.  In R v Gaskin [2000] NIJB 25 at 30 Nicholson LJ expressed this court’s approval of the practice, but for the reasons which we set out below we do not consider that a hard and fast rule should be laid down. 
	No issue could be taken over the imposition of consecutive sentences for escaping from custody and road traffic offences committed while at large.  The adoption of this course in cases of driving while disqualified, when the defendant commits further driving offences, remains in our view one for the discretion of the sentencer.  It may be said that in principle the offences are separate and could justify consecutive sentences, to ensure that the defendant receives a proper penalty – always paying regard to the principle of totality.  This may apply particularly where, as in the present case, he has a bad record for driving while disqualified and the judge thinks it appropriate that the sentence should reflect that and act as a deterrent against repetition: cf R v Wheatley (1983) 5 Cr App R (S) 417.  In most cases, on the other hand, where it is possible to regard the several offences as forming parts of one transaction, the judge may ordinarily think it appropriate to make the sentences concurrent.  In the case before us we consider that the judge had grounds upon which he could properly make the sentence for driving while disqualified consecutive to the other sentences and we do not propose to interfere with the exercise of his discretion.
	We then raised an issue with Crown counsel about the length of the sentence for dangerous driving.  The maximum sentence is two years’ imprisonment, and a sentence of 21 months on a plea of guilty must reflect the judge’s view that he would have imposed the maximum on a contest.  Although this was a bad case, it is possible to conceive of worse ones and we do not think that it justified so high a term.  We consider that this sentence should be reduced to eighteen months.  We have looked at the totality of the sentences and consider that that would appropriately be three years, if a custody probation order is not made.  We therefore reduce the sentence on count 1 for escaping from custody to one of nine months, and affirm the sentence of nine months on Count 6 for driving while disqualified.
	The argument of counsel for the applicant focused on the judge’s decision not to make a custody probation order.  He submitted in particular that over the many court appearances of the applicant and the sentences passed, the assistance of the Probation Service has never been sought, and that it should have been tried.  He suggested that he may be beginning to have some insight into the consequences of his actions and that probation support, on top of his wife’s ultimatum to him, may just be sufficient to save him from a decline into further offending.  We have given careful consideration to the submissions placed before us on this issue, and while we are reluctant to interfere with the exercise of discretion of an experienced and careful judge, we think that there is just enough substance in the point to make it worth giving the applicant an opportunity to redeem himself with probation support.
	We would, as we have stated, have made the effective sentence one of three years overall if we had not decided to make a custody probation order, being made up of consecutive sentences of nine months on Count 1, eighteen months on Counts 2 and 3 and nine months on Count 6.  We propose to make such an order, if the applicant consents, making the sentence on counts 2 and 3 one of six months’ custody and one year’s probation.  The effective sentence will then be one of two years’ custody and one year’s probation.  This will be subject to the condition suggested by the probation officer:
“He shall present himself in accordance with the instructions given by the Probation Officer to the Probation Centre, 40-44 Great Patrick Street, Belfast to participate in an Alcohol Management Programme on eight days during the Probation period and while there comply with instructions given by, or under authority of, the person in charge.”

The sentences on Counts 5 and 7 to 10 are affirmed.

We grant leave to appeal, allow the appeal and vary the sentences accordingly.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

THE QUEEN

-v-

CHARLES JOHN GAYNOR

_____ 

J U D G M E N T
O F
CARSWELL LCJ

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