MR M FOWLER
appeared on behalf of the CROWN J U D G M E N T 1. THE VICE PRESIDENT: In this case the appellant pleaded guilty to five counts of causing death by dangerous driving on 18th October 2005. On 9th November 2005 he was sentenced to five years' imprisonment concurrent on each count and was disqualified from driving for seven years. 2. He appeals to this court against the sentence of imprisonment with leave of the single judge. 3. As is so often the case in offences of causing death by dangerous driving the court was faced with an extremely difficult sentencing exercise. In this case, on the one hand, there was, as can be appreciated by the number of counts, tragedy of significant proportions in that five people died. On the other hand, the appellant who was the driver of the bus which caused the tragedy is a 51 year old man with no previous convictions and in respect of whom no question of irresponsible driving has arisen either in the past, or, as we shall see, to a significant extent, in relation to the driving itself in this case. 4. The facts were that just after 5.00 p.m. on Easter Sunday 11th April 2004, the appellant had driven his Volvo double decker bus to a bus stop outside a Funfair known as Fantasy Island, Sea Lane, Ingoldmells. He let off passengers and then took on board other passengers. At the time as is apparent from video camera recordings, which we have seen, the area was extremely busy as one might imagine from the nature of the day in question. Families were walking to and fro, crossing the road, and in fact going in front of the bus within the lay -by itself. 5. As he came to close the doors the appellant moved off and almost immediately struck a Simon Keyworth, who was indeed in the bus lay -by area, with significant force. He did not stop. The evidence was clear that he accelerated. He went through traffic lights controlling a pedestrian crossing whilst people were in the process of crossing. He collided with a BMW motor car that was stationary in the road and passing on its nearside, mounted the crowded pavement, before regaining the carriageway and eventually only coming to a halt some 22 seconds after leaving the bus stop having travelled some 170 metres. 6. The consequence of that driving over that period was that a husband and wife were killed (they were in their early 30s), and a mother and two of her children were killed. The children were at the time aged five and just a few months, the latter being in a pushchair. The father of those children received serious injuries. One of his kidneys and his spleen had to be removed. He now suffers from severe depression and has had repeated flashbacks to the incident. Many others were injured. 7. How did that terrible accident happen? It is now accepted, and indeed was for the purposes of the trial, that the reason that this occurred was that the appellant, when he stopped the bus, applied the handbrake. It was an automatic bus with, therefore, two pedals, an accelerator and a brake. Whilst it was stationary he left the gearbox in drive. That meant that the bus was held only by the handbrake. The moment that the handbrake was released the bus was bound to move forward. His practice - - and it is apparently a practice adopted by many drivers - - was to place his foot on the footbrake as he released the handbrake in order to restrain the bus before allowing it to move off. On this occasion he made the tragic error of putting his foot on the accelerator as he released the handbrake. As a result, the bus moved forward, unsurprisingly. It was in those circumstances that he first hit the victim Simon Keyworth. 8. At that point passengers in the bus shouted at the driver to stop, but it is apparent that he did not stop, the reason being that he believed that he had in fact got his foot on the brake, instead of, as was the case, the accelerator. He continued to believe that he had his foot on the brake as is clear from the fact that the passengers in the bus heard him say "the brake has failed". He continued to be of that view until after it would appear he had mounted the pavement and mowed down the victims who were killed. At that point, or thereabouts, he realised that his foot was not on the brake, applied the brake and brought the bus to a halt. By then, of course, the damage had been done. It would appear that the period over which he operated the bus under the misapprehension that he had his foot on the accelerator was some 16 seconds or thereabouts. 9. In order to assist the court in determining how best to view the driving in those circumstances the trial judge was provided with expert reports, in particular, on behalf of the appellant, from a Mr Dean Southall, who described what had happened after the bus moved off as classically exemplifying a panic state in the driver, so that he behaved in a way which was predictable in the sense that he remained under the delusion about the fact that his foot was on the brake and not the accelerator for a period of time which was not unexpected. 10. The judge, when considering that aspect of the case, said this at page 12C ff of the sentencing remarks: "In relation to the issue of pedal confusion I have read the reports of Dean Southall and of Dr Koch. It's perhaps an issue more apparent than real because there is no question here that what occurred was that you failed correctly to identify the pedals and that you pressed the accelerator from the time of the bus stop when you should have pressed the brake. What happened thereafter was panic and the effect of panic and the two experts consider the effect of hyper -vigilance and how that can affect people. According to Dr Koch - - and this to me makes sense - - hyper -vigilance affects many people in many different ways. It has been said this morning that the response to hyper -vigilance can be as many as there are drivers. Mr Southall concludes that there was nothing any driver could do other than to take the course which you did under the state of hyper -vigilance and panic in which you then were. The prosecution do not accept that all drivers would have reacted in the same way in response to your pedal error. Dr Koch concluded, having considered responses of approximately 10,000 people in relation to this part of the case, that your error persisted for 16 seconds and was an extreme consequence of pedal confusion." 11. This court, differently constituted, considered this appeal last week and asked for further assistance from counsel as to what the situation was as between the appellant and the respondent in relation to this and related aspects of the case. An agreed note has been provided for the court in the following terms: "A. At the sentencing hearing before Dame Heather Steel, and prior to the facts being opened by the prosecution, two issues, as identified by the basis of plea, were raised by the prosecution. 1. The issue was raised as to whether the unintended acceleration occurred at the time that the bus first pulled away from the kerb or at or after the collision with Simon Keyworth. The appellant's counsel indicated that he was content that the appellant should be sentenced on the basis that the pedal error occurred at the outset, as the bus initially pulled off. 2. The prosecution indicated that they did not accept the contention of Mr Dean Southall that, from the time that he was in a 'panic state' until he brought it [the bus] to a halt some 160 metres further down Sea Lane, Mr Topasna did all that he, or any driver in the hyper -vigilant state engendered by panic, could be expected to do to control the vehicle. In an exchange with defence counsel, Her Ladyship clarified the way in which she proposed to deal with the issue, as now reflected in paragraph 12C to 13B of the transcript of the sentencing remarks, and defence counsel indicated that he did not seek an issue trial on that point." 12. It follows that the sentencing judge, it is accepted, was entitled to approach this matter on the basis that the period over which this appellant persisted in his belief as to the fact that the brakes had failed was at or beyond the limits of what would be expected of a careful driver. 13. The facts that we have related make it plain why this was a particularly difficult sentencing exercise. This does not fall into the category of cases where there has been any significant period of bad or irresponsible driving. It does not have any of the usual aggravating features, such as drink, or, in itself, excessive speed. This is a case where the cause of the incident was an error made by the appellant in identifying the difference between his brake pedal and his accelerator. That, in the circumstances, amounted to dangerous driving in itself. This has to be put in the context of a driver controlling a very large vehicle in an area which was clearly extremely busy with pedestrian traffic. It was a situation, accordingly, which required the greatest vigilance. The way in which the appellant dealt with the crisis with which he was confronted was in itself, as described by the judge, an extreme consequence of pedal confusion. And last, but not least, the consequences have been devastating. This is a case where the court was bound to take into account the substantial loss of life which was occasioned by this tragic error. 14. The sentencing judge, as one would expect, confronted with the difficulties of the sentencing exercise in this case, expressed her reasons for passing the sentence that she did in extremely careful terms. The sentencing remarks go for approximately 25 pages. She described the background, and clearly and accurately described it. She indicated that she was proposing to give to the appellant full credit for the plea of guilty that he entered, even though, in fact, it was a plea entered after the failure of legal submissions. 15. Having related the facts of the accident and indicated the credit that she was prepared to given, she then turned to the authorities. Not surprisingly the first authority that she referred to was the case of