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2018/01461/A4
Neutral Citation Number: [2018] EWCA Crim 2361
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  4th  October  2018

B e f o r e:
LORD  JUSTICE  HOLROYDE

MR  JUSTICE  GOOSE

and

HIS  HONOUR  JUDGE  WALL  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
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IMTEYAZ  HUSSAIN

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Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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Miss L Fisher appeared on behalf of the Applicant

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J U D G M E N T
Thursday  4th  October  2018

LORD JUSTICE HOLROYDE:  I shall ask Mr Justice Goose to give the judgment of the court.

MR JUSTICE GOOSE:  
1.  On the 13th March 2018, in the Crown Court at Nottingham before Mr Recorder Evans, the applicant, Imteyaz Hussain, who is aged 33, was sentenced after his committal by the Nottingham Magistrates' Court for two offences of driving with a controlled drug in excess of the specified limit, contrary to section 5A(1)(a) of the Road Traffic Act 1988.  His guilty plea to those offences put him in breach of a suspended sentence order imposed by Nottingham Crown Court on 20th January 2017.  Mr Recorder Evans imposed fines totalling £500 in respect of the two offences for which the applicant had been committed for sentence.  He declined to activate the suspended sentence.  Instead, the Recorder imposed an additional requirement of an electronically monitored curfew for a period of three months.  The applicant was also disqualified from driving for 30 months.

2.  The applicant's application for leave to appeal has been referred to the full court by the single judge.

3.  On 6th December 2017, at 10.40pm, the applicant was driving an Audi motor vehicle in Huntingdon Street, Nottingham, when he was stopped by the police.  They could smell cannabis from within the vehicle.  A roadside test for alcohol was negative.  But a further test in respect of drugs revealed their presence within the body of the applicant.  Later analysis of the applicant's blood revealed the derivative of cocaine, benzoylecgonine, at six times over the prescribed limit; and also the derivative of cannabis, tetrahydrocannabinol, was over the prescribed limit by 50 per cent.

4.  The applicant does not seek to challenge the financial penalties, nor the additional requirement in respect of his breach of the suspended sentence order.  The single point of appeal concerns the disqualification from driving for a period of 30 months.  The applicant submits that the disqualification should have been for a period of between the minimum of twelve months and twenty-two months.  It is argued, therefore, that the disqualification was manifestly excessive.

5.  The Sentencing Council has not so far produced a sentence guideline for drug driving offences, which were created under the Crime and Courts Act 2013, amending the Road Traffic Act 1988 with the insertion of a new section 5A.  The offence came into force on 2nd March 2015.  In the meantime, the Sentencing Council has issued a Drug Driving Guidance, which does not have the status of a sentencing guideline.  The guidance states that it would be wrong to rely on the driving with excess alcohol guideline when sentencing for an offence under the drug driving legislation.  This is because of the strict liability and zero tolerance approach to the offence.  On page 1 of the guideline it is stated:

"It is important to note that this guidance does not carry the same authority as a sentencing guideline, and sentencers are not obliged to follow it.  However, it is hoped that the majority of sentencers will find it useful in assisting them to deal with these cases."

On page 2 of the guidance, it is stated:

"Driving or Attempting to Drive

…

•	As a guide, where an offence of driving or attempting to drive has been committed and there are no factors that increase seriousness, the court should consider a starting point of a Band C fine, and a disqualification in the region of 12-22 months.  The list of factors that increase seriousness appears on page 3.  Please note this is an exhaustive list and only factors that appear in the list should be considered.

•	Where there are factors that increase seriousness, the court should consider increasing the sentence on the basis of the level of seriousness.

•	The community order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness.  The court should also consider imposing a disqualification in the region of 23-28 months.

•	The custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors …  the court should also consider imposing a disqualification in the region of 29-36 months."

Of the factors that increase seriousness, evidence of another specified drug is included.

6.  On behalf of the applicant, it is submitted that there are no factors which increase the seriousness of the offence in his case.  However, this appears to ignore the fact that the applicant's blood disclosed the presence of the derivatives of both cocaine and of cannabis (another specified drug).  In addition, there are two aggravating factors which make the offences more serious.  Firstly, the applicant was carrying a passenger, exposing that passenger to the risk of being driven in a vehicle by a driver under the influence of drugs.  Any apparent absence of vulnerability in the passenger, as has been argued, is beside the point.  It is also, in our judgment, beside the point that that passenger may or may not have been aware of the smoking or use of cannabis or cocaine by the applicant whilst in the vehicle. 

7.  Secondly, the applicant has a previous conviction, for which, on 20th January 2017, he received the sentence of eighteen months' imprisonment, suspended for two years, for an offence of conspiracy to supply cannabis. Plainly, this was a significant aggravating factor: at the time of his drug driving, the applicant was facing a suspended prison sentence for drugs offences.  It might be observed that the applicant was fortunate to have been sentenced without the activation of the suspended sentence.  

8.  When following the drug driving guidance, therefore, it is clear that there was one factor that increased seriousness in the applicant's case, namely the evidence of another specified drug in his body, and two significant aggravating factors of seriousness.  Although the Recorder did not conclude that the community order and custody threshold were crossed, given that he was already the subject of a suspended sentence, the guidance suggests that an appropriate period of disqualification should be in the region of 29 to 36 months.  Accordingly, therefore, when the Recorder imposed a disqualification from driving for a period of 30 months, he was following the drug driving guidance appropriately.  The order for disqualification from driving, therefore, cannot be criticised.

9.  Accordingly, and for these reasons, the application for leave to appeal is refused.

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