R v Callum McCann

This appeal, which is brought with the leave of the Single Judge, arises out of two sets of offences. We shall give further detail below but in briefest outline, at various stages in the proceedings the appellant pleaded guilty to three sets of offences as follows. First, on 5 May 2025 the appellant drove dangerously and by driving deliberately at someone walking along the pavement was guilty of an offence of affray. He was at the time disqualified from driving and had no insurance. We shall refer to these as "the 5 May offences".

On 7 May 2025 he again drove dangerously when trying to evade the police. Once again, he deliberately drove onto the pavement and once again he was driving whilst disqualified and without insurance. We shall refer to these as "the 7 May offences".

While the police were investigating 5 and 7 May offences the appellant was found to be in possession of a driving licence which had been stolen from its rightful owner in 2022. The appellant pleaded guilty to handling stolen goods as a result of his possession of the licence.

There has been some confusion about how these various offences ended up in the Crown Court at Snaresbrook but on 22 December 2025, having pleaded guilty to all the offences, the appellant was sentenced by Mr Recorder Barnett as follows: on count 2 of the indictment, which was the 5 May dangerous driving, on his plea of guilty he was sentenced to 12 months' imprisonment concurrent; on count 3, which was the driving while disqualified on 5 May, no separate penalty was imposed. On count 4, which was the dangerous driving on 7 May, 6 months' imprisonment consecutive was imposed. On count 5, which was driving whilst disqualified on 7 May, no separate penalty was imposed. On count 6, which was the charge of handling stolen goods, he was sentenced to 1 month's imprisonment concurrent and on count 7, the count of affray, he was sentenced to 20 months' imprisonment.

The factual background

Around 7.30 pm on 5 May 2025 Ms Gracie Sabine was walking along Market Road in Islington when she heard the appellant shouting towards her: "Where's Amber? Where's Amber?" The appellant was referring to his ex-girlfriend, Amber Lindell, who was a friend of Ms Sabine's. The appellant was driving a Mercedes Coupe motor vehicle. His current partner was in the front passenger seat. Ms Sabine was concerned for her safety. She responded: "You all right?" before continuing to walk along the pavement. The appellant turned his vehicle around, mounted the pavement and drove deliberately towards Ms Sabine before speeding away along Market Road. Ms Sabine had Snapchat open on her mobile phone and recorded some of the incident. On the recording Ms Sabine can be heard asking the appellant why he was following her. We have seen the recording, which graphically illustrates the course and speed of the Mercedes as it mounted the pavement very close to Ms Sabine and heading in her direction. The incident was witnessed by a member of the public who called 999. Ms Sabine also contacted the police who attended her home and took a statement. While the officers were there, the appellant sent Ms Sabine a direct message via Instagram asking that she "send the video" with an accompanying laughing face emoji.

The following day, 6 May 2025, the appellant called 101 to ask whether he was wanted for an offence. Officers attended his home later that day and spoke with his legal guardian who showed them a text conversation he had with the appellant on 5 May. In the messages the appellant admitted mounting the pavement to scare Ms Sabine but said he did not cause her any injuries.

In the early hours of 7 May the appellant was seen driving a Mercedes in Holloway Road. PC Serban activated his blue lights and signalled for the appellant to stop. PC Serban pulled over and rolled down his window. The appellant asked the officer if everything was all right. PC Serban told the appellant to turn off his engine. The appellant then mounted the left side of the pavement in an attempt to squeeze by a parked car and a building. He then reversed and mounted the pavement again before speeding away along Holloway Road. At the time of both sets of offences the appellant was disqualified from driving and had no insurance.

He was arrested at his home address on 8 May 2025. On his person was a wallet which contained a driving licence in the name of "Tallulah Hastings". A crime report had been issued in 2022 after Tallulah Hastings' wallet and driving licence were stolen.

The appellant had bought the car he was driving just four days before knowing full well that he was disqualified and not allowed to drive it. He also obviously knew that he was driving without insurance. At one point the appellant was charged with an offence of attempting to cause Ms Sabine grievous bodily harm with intent. Later, that charge was dropped and the offence of affray was preferred to which the appellant was prepared to and did plead guilty at the first opportunity.

The sentencing hearing

Antecedents

Victim impact statement

The prosecution opening

The prosecution submitted that the appellant was entitled to full credit in relation to 5 May offences including the affray and 25 per cent in relation to 7 May offences and the handling of stolen goods. In terms of guidelines the lead offence was the affray which the prosecution submitted should be treated as category A because of the intention to cause fear of very serious violence and category 1 due to the serious fear and distress that was caused to Ms Sabine. That would give a starting point of 2 years' custody with a category range from 1 year 6 months to 2 years 9 months' custody. There were no identified aggravating factors. The dangerous driving on 5 May was submitted to be culpability A due to the highly dangerous manoeuvre of mounting the pavement and harm teetering between category 1 and 2 in the light of minor injury, with the presence of the passenger in his car being an aggravating feature. The prosecution accepted the Recorder's suggestion that it would be appropriate to treat the affray as the lead offence and to treat the dangerous driving as an aggravating feature in respect of which a concurrent sentence should be imposed.

The sentencing remarks

The Recorder dealt first with the affray and 5 May dangerous driving. He took the 2-year starting point for the affray adopting the prosecution submission that it was category A1 offence because the appellant "used a weapon and caused real fear. There was no actual serious injury". He then said that he would impose no separate penalty for the dangerous driving but that the affray was aggravated by the fact that the appellant was "dangerously driving a vehicle... and was disqualified at the time." So the starting point had to be increased to 30 months. As the appellant was entitled to a full discount the Recorder reached the sentence of 20 months which he imposed. For 5 May he imposed a concurrent sentence of 12 months which he explained as meaning that there was no separate penalty for the dangerous driving apart from the obligatory disqualification. The meaning is clear even if the analysis is suspect.

The grounds of appeal

Ground 1. It is submitted there were no aggravating features that justified the Recorder increasing the sentence for the affray from the 2-year starting point from an A1 offence. If he did so on account of the dangerous driving, it is submitted that he was double counting as the affray was categorised as falling within category A1 because he used his car as a weapon to cause Ms Sabine serious fear and distress.

Ground 2. It is submitted that the sentence imposed by the Recorder for 7 May offences is very close to the sentence that would and should have been imposed had the Recorder treated the offence as an A2 offence and then reduced the starting point of 36 weeks by the 25 per cent to which the appellant was properly entitled. However, that sentence when properly analysed in this way makes no allowance for totality even though the Recorder said that he was making an allowance for that reason.

Ground 3. It is submitted that there was no or no sufficient reduction to reflect the appellant's personal mitigation.

Ground 1. We have set out above what the Recorder said about aggravating features that caused him to go up from the affray starting point of 2 years to 30 months. There were two: the appellant was "dangerously driving a vehicle ... and was disqualified at the time". In our judgment, the overlap between the appellant's driving of his vehicle and the offence of affray was virtually complete. Placing the affray in category A1 was on account of the appellant's intention to cause fear of very serious violence and causing serious fear and distress to Ms Sabine. The dangerous driving of the vehicle was the means by which he carried his intention into effect and caused the fear and distress suffered by Ms Sabine. That said, we do not accept that the other feature identified by the Recorder, namely the fact that he was driving whilst disqualified, was irrelevant. Nor was it subsumed in the affray in the same way as the dangerous driving was. It falls within the guideline factor for motoring offences increasing seriousness "other driving offences committed at the same time as the dangerous driving" as does the offence of driving without insurance. However, the sentence imposed by the Recorder does not appear to have been subject to any reduction for the appellant's personal mitigation. On any view, the fact of the appellant's extremely troubled upbringing and the evidence that there is good in him that is being carefully nurtured by Dr Ashworth and others needs to be reflected in the sentence that the court imposes.

Ground 2. We accept that 7 May offence of dangerous driving fell within category A2 because it occurred in the course of evading the police but fortunately no injury or damage to property was caused. That would give a starting point of 36 weeks. Once again, the aggravating feature of committing other driving offences, driving whilst disqualified and without insurance would have justified some relatively modest uplift from the starting point. Unfortunately, the Recorder did not specify what his notional sentence before making a reduction for totality, the appellant's personal mitigation and before a reduction for plea would have been. Given his apparent acceptance of the categorisation of the dangerous driving as A2, it cannot reasonably have been more than about a year. Leaving personal mitigation on one side for a moment, only a very modest reduction for totality, if any, was called for. We bear in mind that the two incidents of dangerous driving were separate and distinct and the Recorder imposed no separate penalty for the offences of driving while disqualified and using a motor vehicle on the road without insurance and that he made the sentence for the handling stolen goods concurrent. For these reasons we do not consider it would be right to interfere with the Recorder's sentencing of 7 May offences unless it is demonstrable that he has made materially insufficient allowance for the appellant's personal mitigation.

So we turn to ground 3. We accept without reservation that the appellant has had an extremely troubled upbringing and that despite the very extensive efforts made by many people to see him to a better future, his current diagnosis of PTSD remains in place. We also accept that the decision to drive his car at Ms Sabine may have been influenced by his documented difficulties in relation to anger management. However, the decisions to buy the car and then use it when he knew he was not entitled to do so are not obviously attributable to those difficulties. Nor is his decision to go on driving it on 7 May after what had happened on 5 May. Standing back, and having regard to all the considerations that we have outlined including his antecedents and the serious nature of 5 May and 7 May offences, we are persuaded that the aggregate sentence of 26 months was manifestly excessive for the reasons we have given and that the appropriate aggregate sentence should have been one of 21 months made up of 15 months on count 7 and making no adjustment to the sentence of 6 months on count 4.

An aggregate sentence of 21 months is at least capable of being suspended. We have given close and anxious consideration to the submissions made by Ms Levett in relation to suspending the sentence. With a degree of regret, we have come to the conclusion that this offending, spread as it was over two separate days and two distinct episodes of dangerous driving, is so serious that we cannot in all consciousness suspend it. The appeal is therefore allowed to the extent that we have outlined.

Before we leave the case there are two other issues that need to be dealt with in the light of what we have said so far. First, although the Recorder referred to and the record referred to periods of "imprisonment", the effect of his age means that the sentences on counts 2, 4 and 6 should have been recorded as periods of "detention in a young offender institution" pursuant to section 262 of the Sentencing Act 2020 . As he was aged 21 when convicted on count 7 (the offence of affray) the prohibition in section 227 no longer applied and a custodial sentence would have been imprisonment. Secondly, we have to deal with the position in relation to the case of Needham . So therefore, we finish this judgment here and we will now hear necessary submissions about what the impact on Needham will be.

My Lord, by virtue of receiving the sentence of 21 months, the defendant having a determinate sentence would fall to be released after 40 per cent of that sentence, which is a period of 8.4 months and he has in fact served now 9 months and 5 days in custody and therefore he should be eligible for immediate release and as such, in my submission, it would be appropriate to impose the intended disqualification of 3 years from today which will then not need any further adjustment because he will be subject to immediate release. Unless I can assist any further those would be my representations.

Very neat.

There is one thing though. I have read the sentencing remarks of Recorder Barnett, and he said that the appellant "may" have to take what he described as "re-test" once he is eligible to driving again. That is not correct, is it, section 36 required him to be disqualified until such time as he passes an extended driving test?

That is absolutely right.

The disqualification does need amending to make that clear, but we do agree that your proposal of not extending the 3 years or uplifting it in accordance with Needham is fair and just in the circumstances. So 3-year disqualification on counts 2 and 4 but disqualified until he passes an extended driving test.

I am grateful, my Lord. Thank you.

You will be aware that from the way that we framed the judgment that we have not allowed ourselves to be driven by estimated release dates, but we are conscious that this will have an effect.

I am just going to say something direct to Mr McCann which may sound rather strange coming from someone wearing a wig and a gown and all that sort of stuff. I hope you have understood from the judgment that I have given that we understand that you have had a terrible upbringing and severely traumatic time and upbringing. But it is also completely clear that a lot of people have invested huge amounts of time, effort and love to try to see you through and you need to realise, and I am sure Dr Ashworth will immediately understand this, there will come a time when you can no longer rely on your terrible upbringing as an excuse for bad behaviour. That time has probably now come. You have a choice, it will be difficult to stick to, but you have a choice whether to go the path that Dr Ashworth is trying to lead you on or whether you are going to end up on the scrapheap of the criminal justice system. It would be a complete tragedy for you and for them if you ever come back before the court again. That is all I am going to say. It is your choice, but there are people who are there who are determined to help you. So give them your help as they do that.