Woman jailed for using a mobile minutes before a fatal crash
Discussion
tenpenceshort said:
On the basis the defendant pleaded guilty and chose not to contest the prosecution case in any way, shape or form, the Judge is entitled to agree with the prosecution's version of events and treat it as fact, which is what happened here.
Whilst this is true, I think people are questioning whether the judge sentenced D on a basis which went beyond the prosecution case at its highest. Well, assuming he did (which is not necessarily the case) then see the consolidated criminal practice direction:"g) ... , where the prosecution has not invited the Court to hold a Newton hearing, and where the factual dispute between the prosecution and the defence is likely to have a material impact on the sentence, if the defence does not invite the Court to hold a Newton hearing the Court is entitled to reach its own conclusion of the facts on the evidence before it."
In other words, the judge can sentence on whatever basis he thinks is supported by evidence (or inferences drawn from failure to testify - N.b. this is mentioned elsewhere).
D would have been a terrible defence witness - especially in a Newton hearing (which is a hearing without a jury). She lied about using her phones - as proven by phone records. She could have lost all or some credit for pleading guilty - which in her case may have meant another 3 years or so (assuming judge took 9 years as a starting point).
In any event, it wouldn't surprise me if she sought leave to appeal against sentence.
It always makes me laugh when people ask why people cant turn their phones off whilst driving or people shouldnt be allowed in their cars with phones they should be locked in the boot.
As a driver I know that using my phone while driving is against the law. My phone is switched on whilst driving but its in the armrest or door pocket and gets ignored when it rings. I check for messages when I stop. Why would I want to wait for my phone to take 1.5 minutes to start then 30 seconds to connect to a network at the other end because I cannot be trusted to not use my phone to drive.
As a driver I know that using my phone while driving is against the law. My phone is switched on whilst driving but its in the armrest or door pocket and gets ignored when it rings. I check for messages when I stop. Why would I want to wait for my phone to take 1.5 minutes to start then 30 seconds to connect to a network at the other end because I cannot be trusted to not use my phone to drive.
Randy Winkman said:
I think the problem now is that use of smartphones is part of lots of people's habitual daily behaviour. So fiddling around with them the whole time is just what they do. Necessity doesn't have anything to do with it and neither do logic and reason.
This. And what's interesting to me is that it's one of those few driving transgressions which women are more likely to commit*. Given that many women nag men for not communicating, this is the flip-side to the same coin. And FWIW, in my experience women like to get/give instant answers to their TXTs. A recipe for danger.Re this particular case, her use of the mobile just prior must surely have been context to the actual incident, not the root factor?
* in relative terms, not absolute numbers
98elise said:
Prawnboy said:
when you have been nicked for using phones twice before and you were using one 6 minutes previous to the accident it's a very good chance phones are the cause.
Thats the link I don't see. Its a bit like saying you have points for speeding, therefore you can be done for speeding when there is no evidence that you have been. The evidence shows she used her phone 6 minutes before. How is it then a factor in the accident? The law works on what can be proved beyond reasonable doubt, not what that she probably was or was not doing.
oyster said:
98elise said:
Prawnboy said:
when you have been nicked for using phones twice before and you were using one 6 minutes previous to the accident it's a very good chance phones are the cause.
Thats the link I don't see. Its a bit like saying you have points for speeding, therefore you can be done for speeding when there is no evidence that you have been. The evidence shows she used her phone 6 minutes before. How is it then a factor in the accident? The law works on what can be proved beyond reasonable doubt, not what that she probably was or was not doing.
agtlaw said:
Whilst this is true, I think people are questioning whether the judge sentenced D on a basis which went beyond the prosecution case at its highest. Well, assuming he did (which is not necessarily the case) then see the consolidated criminal practice direction:
"g) ... , where the prosecution has not invited the Court to hold a Newton hearing, and where the factual dispute between the prosecution and the defence is likely to have a material impact on the sentence, if the defence does not invite the Court to hold a Newton hearing the Court is entitled to reach its own conclusion of the facts on the evidence before it."
In other words, the judge can sentence on whatever basis he thinks is supported by evidence (or inferences drawn from failure to testify - N.b. this is mentioned elsewhere).
D would have been a terrible defence witness - especially in a Newton hearing (which is a hearing without a jury). She lied about using her phones - as proven by phone records. She could have lost all or some credit for pleading guilty - which in her case may have meant another 3 years or so (assuming judge took 9 years as a starting point).
In any event, it wouldn't surprise me if she sought leave to appeal against sentence.
Appeal against sentence:"g) ... , where the prosecution has not invited the Court to hold a Newton hearing, and where the factual dispute between the prosecution and the defence is likely to have a material impact on the sentence, if the defence does not invite the Court to hold a Newton hearing the Court is entitled to reach its own conclusion of the facts on the evidence before it."
In other words, the judge can sentence on whatever basis he thinks is supported by evidence (or inferences drawn from failure to testify - N.b. this is mentioned elsewhere).
D would have been a terrible defence witness - especially in a Newton hearing (which is a hearing without a jury). She lied about using her phones - as proven by phone records. She could have lost all or some credit for pleading guilty - which in her case may have meant another 3 years or so (assuming judge took 9 years as a starting point).
In any event, it wouldn't surprise me if she sought leave to appeal against sentence.
http://www.counsel.direct/news/2015/2/18/r-v-usace...
Interesting that D wasn't called to give evidence - which ties in with my quoted post.
Cooperman said:
Probably a fair sentence, but one must feel sorry for her 8-year-old son who will now be in care until he is around 11, all through no fault of his own.
A very sad case all round, but she knew what she was doing having been previously convicted of using her mobile on 2 occasions.
Yes sad as it may seen, however what about the victim's family & friends.A very sad case all round, but she knew what she was doing having been previously convicted of using her mobile on 2 occasions.
agtlaw said:
agtlaw said:
Whilst this is true, I think people are questioning whether the judge sentenced D on a basis which went beyond the prosecution case at its highest. Well, assuming he did (which is not necessarily the case) then see the consolidated criminal practice direction:
"g) ... , where the prosecution has not invited the Court to hold a Newton hearing, and where the factual dispute between the prosecution and the defence is likely to have a material impact on the sentence, if the defence does not invite the Court to hold a Newton hearing the Court is entitled to reach its own conclusion of the facts on the evidence before it."
In other words, the judge can sentence on whatever basis he thinks is supported by evidence (or inferences drawn from failure to testify - N.b. this is mentioned elsewhere).
D would have been a terrible defence witness - especially in a Newton hearing (which is a hearing without a jury). She lied about using her phones - as proven by phone records. She could have lost all or some credit for pleading guilty - which in her case may have meant another 3 years or so (assuming judge took 9 years as a starting point).
In any event, it wouldn't surprise me if she sought leave to appeal against sentence.
Appeal against sentence:"g) ... , where the prosecution has not invited the Court to hold a Newton hearing, and where the factual dispute between the prosecution and the defence is likely to have a material impact on the sentence, if the defence does not invite the Court to hold a Newton hearing the Court is entitled to reach its own conclusion of the facts on the evidence before it."
In other words, the judge can sentence on whatever basis he thinks is supported by evidence (or inferences drawn from failure to testify - N.b. this is mentioned elsewhere).
D would have been a terrible defence witness - especially in a Newton hearing (which is a hearing without a jury). She lied about using her phones - as proven by phone records. She could have lost all or some credit for pleading guilty - which in her case may have meant another 3 years or so (assuming judge took 9 years as a starting point).
In any event, it wouldn't surprise me if she sought leave to appeal against sentence.
http://www.counsel.direct/news/2015/2/18/r-v-usace...
Interesting that D wasn't called to give evidence - which ties in with my quoted post.
Randy Winkman said:
I think the problem now is that use of smartphones is part of lots of people's habitual daily behaviour. So fiddling around with them the whole time is just what they do. Necessity doesn't have anything to do with it and neither do logic and reason.
Spot on!I would go so far to say people are addicted to them!
rambo19 said:
Randy Winkman said:
I think the problem now is that use of smartphones is part of lots of people's habitual daily behaviour. So fiddling around with them the whole time is just what they do. Necessity doesn't have anything to do with it and neither do logic and reason.
Spot on!I would go so far to say people are addicted to them!
Car in front stops, girl brakes to a halt, picks up device and checks screen, car moves, seconds later girl realises,drops phone on to passenger seat and drives forward, car in front stops, girl brakes, picks up phone and checks in case she's missed anything in the last 25 metres. and so on and so on.
Issi said:
rambo19 said:
Randy Winkman said:
I think the problem now is that use of smartphones is part of lots of people's habitual daily behaviour. So fiddling around with them the whole time is just what they do. Necessity doesn't have anything to do with it and neither do logic and reason.
Spot on!I would go so far to say people are addicted to them!
Car in front stops, girl brakes to a halt, picks up device and checks screen, car moves, seconds later girl realises,drops phone on to passenger seat and drives forward, car in front stops, girl brakes, picks up phone and checks in case she's missed anything in the last 25 metres. and so on and so on.
I'm a bus driver so I sit high up, I can see into cars, the amount of people fiddling with their phones is astounding!
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