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Driver given suspended sentence on sole charge of failing to stop after death of cyclist

Cyclist was injured ‘owing to the presence’ of his car

A Hampshire motorist has been given a five-month suspended sentence after pleading guilty to failing to stop at a hearing at Basingstoke Magistrates' Court.

The Daily Echo reports that Brian Tozer was injured "owing to the presence" of Michael O’Shea’s Mazda 3 on the A343 Redon Way near the Folly Roundabout in Andover. The incident took place shortly before 1am on March 6 and while Tozer was found lying in the road by a passing motorist, he later died in hospital.

O’Shea had fled the scene but was arrested by police later that day following tip-offs following media coverage of the collision.

Defending, Natalie Cheeseman said: “He didn’t know what to do and essentially fled. He stopped and started walking back towards the scene of the incident and [Tozer] was being attended to and left. He found himself in an extremely difficult situation and he has not managed it perfectly. Who is to know what anyone would do in that situation until they are in it?”

Cheeseman claimed O’Shea suffered from undiagnosed learning difficulties and asked magistrates not to pass down a custodial sentence for fear he may lose his job – one he has held since leaving school 12 years ago, without qualifications.

O’Shea told police he had not ‘drunk or smoked’ before driving and was not distracted. He said he had been driving at between 15mph and 20mph.

As well as being handed a five-month prison sentence, suspended for 12 months, O’Shea was banned from driving for 12 months and ordered to do 250 hours’ community service and pay court costs and a victim surcharge totalling £165.

Alex has written for more cricket publications than the rest of the road.cc team combined. Despite the apparent evidence of this picture, he doesn't especially like cake.

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davel | 7 years ago
1 like

You put forward the argument that she was doing her job, ethically; I questioned how much part speculation should play in that.

I'm aware that there will have been hours of discussion that we're not party to, but it seems to me that ' undiagnosed conditions' is the very definition of speculation. You seem to know a bit about this stuff, so is this acceptable? Is this a legal 'thing'? We cannot know this person or set of circumstances 100% so in mitigation, m'lud.... What If? Court time is given to this? Please say it ain't so.

There are undiagnosed conditions in absolutely everything that absolutely everyone does absolutely everywhere. I reckon Hitler had a fair few undiagnosed conditions.

..and there's your Godwin.

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bendertherobot replied to davel | 7 years ago
0 likes
davel wrote:

You put forward the argument that she was doing her job, ethically; I questioned how much part speculation should play in that. I'm aware that there will have been hours of discussion that we're not party to, but it seems to me that ' undiagnosed conditions' is the very definition of speculation. You seem to know a bit about this stuff, so is this acceptable? Is this a legal 'thing'? We cannot know this person or set of circumstances 100% so in mitigation, m'lud.... What If? Court time is given to this? Please say it ain't so. There are undiagnosed conditions in absolutely everything that absolutely everyone does absolutely everywhere. I reckon Hitler had a fair few undiagnosed conditions. ..and there's your Godwin.

Well, you're speculating that there's speculation as well. See, it has to come from somewhere, claiming an undiagnosed condition would be picked up on by the Court because, by it's nature, that condition must either now be present or have been diagnosed. It's difficult to say where it's come from but to say it there must be some substance for it, either in the client's instructions or in the pre sentence report. 

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burtthebike | 7 years ago
2 likes

Christopher Gard was caught mobile driving eight times before he killed a cyclist and was finally jailed.  How many cyclists does this guy have to kill before he pays the proper penalty.  There is something very, very wrong with our hysterically badly named "justice" system.

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oldstrath | 7 years ago
2 likes

So in essence, O'Shea is too thick to drive safely, so we'll let him off, to continue driving unsafely. Just how fucked up is our legal system?

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Cupov | 7 years ago
2 likes

Natalie Cheeseman...you should be ashamed of yourself.

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bendertherobot replied to Cupov | 7 years ago
2 likes
Cupov wrote:

Natalie Cheeseman...you should be ashamed of yourself.

 

Why? Her duty is to her client and to represent his interests to the best of her abilities. There's nothing unethical in her statement. Any part of it can be ignored or given certain weight by the bench.

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davel replied to bendertherobot | 7 years ago
1 like
bendertherobot wrote:
Cupov wrote:

Natalie Cheeseman...you should be ashamed of yourself.

 

Why? Her duty is to her client and to represent his interests to the best of her abilities. There's nothing unethical in her statement. Any part of it can be ignored or given certain weight by the bench.

Because she's justifying the behaviour of a louse. Technically she might be doing her job. Box ticked for her next appraisal. Hopefully her Christmas Dos are with tax-avoiding accountants and Goldman Sachs employees.

And someone please tell me that 'undiagnosed conditions' have to get substantiated or are laughed out of court.

Avatar
bendertherobot replied to davel | 7 years ago
0 likes
davel wrote:
bendertherobot wrote:
Cupov wrote:

Natalie Cheeseman...you should be ashamed of yourself.

 

Why? Her duty is to her client and to represent his interests to the best of her abilities. There's nothing unethical in her statement. Any part of it can be ignored or given certain weight by the bench.

Because she's justifying the behaviour of a louse. Technically she might be doing her job. Box ticked for her next appraisal. Hopefully her Christmas Dos are with tax-avoiding accountants and Goldman Sachs employees. And someone please tell me that 'undiagnosed conditions' have to get substantiated or are laughed out of court.

There's not technically about it. It's her job. To do anything else would be a breach of her professional obligations to her client. That's our system. As to her claim, that will have such weight as is given to it, which could well be none. It's also a report, without being there, it may well be that the undiagnosed conditions have now been diagnosed and there was evidence, as there will be in the thing called the pre sentence report which went with this case (given that there was a risk of a custodial sentence). She's not justifying his behaviour, she's presenting a thing called a plea in mitigation. 

Avatar
oldstrath replied to bendertherobot | 7 years ago
1 like
bendertherobot wrote:
davel wrote:
bendertherobot wrote:
Cupov wrote:

Natalie Cheeseman...you should be ashamed of yourself.

 

Why? Her duty is to her client and to represent his interests to the best of her abilities. There's nothing unethical in her statement. Any part of it can be ignored or given certain weight by the bench.

Because she's justifying the behaviour of a louse. Technically she might be doing her job. Box ticked for her next appraisal. Hopefully her Christmas Dos are with tax-avoiding accountants and Goldman Sachs employees. And someone please tell me that 'undiagnosed conditions' have to get substantiated or are laughed out of court.

There's not technically about it. It's her job. To do anything else would be a breach of her professional obligations to her client. That's our system. As to her claim, that will have such weight as is given to it, which could well be none. It's also a report, without being there, it may well be that the undiagnosed conditions have now been diagnosed and there was evidence, as there will be in the thing called the pre sentence report which went with this case (given that there was a risk of a custodial sentence). She's not justifying his behaviour, she's presenting a thing called a plea in mitigation. 

 

Some of us simply cannot understand how any one with a functioning conscience can attempt to excuse, mitigate, whatever, this character's behaviour. If he really did do it because of this 'condition', surely that is itself clear evidence he should never drive again?

Avatar
bendertherobot replied to oldstrath | 7 years ago
1 like
oldstrath wrote:
bendertherobot wrote:
davel wrote:
bendertherobot wrote:
Cupov wrote:

Natalie Cheeseman...you should be ashamed of yourself.

 

Why? Her duty is to her client and to represent his interests to the best of her abilities. There's nothing unethical in her statement. Any part of it can be ignored or given certain weight by the bench.

Because she's justifying the behaviour of a louse. Technically she might be doing her job. Box ticked for her next appraisal. Hopefully her Christmas Dos are with tax-avoiding accountants and Goldman Sachs employees. And someone please tell me that 'undiagnosed conditions' have to get substantiated or are laughed out of court.

There's not technically about it. It's her job. To do anything else would be a breach of her professional obligations to her client. That's our system. As to her claim, that will have such weight as is given to it, which could well be none. It's also a report, without being there, it may well be that the undiagnosed conditions have now been diagnosed and there was evidence, as there will be in the thing called the pre sentence report which went with this case (given that there was a risk of a custodial sentence). She's not justifying his behaviour, she's presenting a thing called a plea in mitigation. 

 

Some of us simply cannot understand how any one with a functioning conscience can attempt to excuse, mitigate, whatever, this character's behaviour. If he really did do it because of this 'condition', surely that is itself clear evidence he should never drive again?

Ah, the conscience argument. I guess it wouldn't be awfully hard to ensure that all defendant solicitors were without one. What about the ones were the client is innocent, do we give those ones with a conscience and the guilty ones one without? At what stage to we ascertain whether a conscience is required? In any event that's the legal system, a representative of the accused who's there to protect rights because we still have a system that gives rights to those who are accused or guilty of crimes. It's not even really an idealism, it's more a practicality of a functioning society with rules. 

To an extent mitigation does seek to excuse, but you'll rarely see an advocate use those words as it's red rag to a bull to the bench. There's a lot of buzz word bingo in the reporting of a plea in mitigation but, essentially, they're quite boring things and essentially mechanical. There will be some stuff about antecedent history, the offence, pre cons and dealing with the recommendation of the pre sentence report. That's not reported on here, but it's unlikely that there was not one and it's unlikely that the bench did not follow its recommendations. But that's too hard to report.

In relation to undiagnosed conditions remember this isn't a driving offence per se. Not in terms of ability. It's about those conditions and, by implication, how they affected his judgement on this occasion. But without having heard the case one cannot be sure of that context. There's no direct evidence in relation to driving ability because that ability was not in evidence. And the level of those learning difficulties is not mentioned. Remember that people with learning difficulties are allowed to drive. 

So, from what we actually know, it's not a lot. The bench gave a sentence within guidelines. The lawyer did her job, it seems, in the correct manner ignoring any cries for conscience to override the defendant's rights. 

The outlying issue is, once again, the lack of any substantial driving charge on the evidence. There appears to be a lack of any so the CPS will balance that against the need for a prosecution. That's something I'd like to see changed and for the CPS to bring more of them as test cases. That's a whole can of worms because of how cases have previously been dealt with and their own written policy.

Avatar
davel replied to bendertherobot | 7 years ago
0 likes
bendertherobot wrote:
davel wrote:
bendertherobot wrote:
Cupov wrote:

Natalie Cheeseman...you should be ashamed of yourself.

 

Why? Her duty is to her client and to represent his interests to the best of her abilities. There's nothing unethical in her statement. Any part of it can be ignored or given certain weight by the bench.

Because she's justifying the behaviour of a louse. Technically she might be doing her job. Box ticked for her next appraisal. Hopefully her Christmas Dos are with tax-avoiding accountants and Goldman Sachs employees. And someone please tell me that 'undiagnosed conditions' have to get substantiated or are laughed out of court.

There's not technically about it. It's her job. To do anything else would be a breach of her professional obligations to her client. That's our system. As to her claim, that will have such weight as is given to it, which could well be none. It's also a report, without being there, it may well be that the undiagnosed conditions have now been diagnosed and there was evidence, as there will be in the thing called the pre sentence report which went with this case (given that there was a risk of a custodial sentence). She's not justifying his behaviour, she's presenting a thing called a plea in mitigation. 

Is it not possible to do her job, ethically, in defending a piece of shit, without resorting to speculation (1. 'undiagnosed conditions' = speculation. 2. 'but what would anyone else do, m'lud?' = speculation)?

Seems she's clutching at straws and going beyond mitigation regarding the facts.

Avatar
bendertherobot replied to davel | 7 years ago
1 like
davel wrote:
bendertherobot wrote:
davel wrote:
bendertherobot wrote:
Cupov wrote:

Natalie Cheeseman...you should be ashamed of yourself.

 

Why? Her duty is to her client and to represent his interests to the best of her abilities. There's nothing unethical in her statement. Any part of it can be ignored or given certain weight by the bench.

Because she's justifying the behaviour of a louse. Technically she might be doing her job. Box ticked for her next appraisal. Hopefully her Christmas Dos are with tax-avoiding accountants and Goldman Sachs employees. And someone please tell me that 'undiagnosed conditions' have to get substantiated or are laughed out of court.

There's not technically about it. It's her job. To do anything else would be a breach of her professional obligations to her client. That's our system. As to her claim, that will have such weight as is given to it, which could well be none. It's also a report, without being there, it may well be that the undiagnosed conditions have now been diagnosed and there was evidence, as there will be in the thing called the pre sentence report which went with this case (given that there was a risk of a custodial sentence). She's not justifying his behaviour, she's presenting a thing called a plea in mitigation. 

Is it not possible to do her job, ethically, in defending a piece of shit, without resorting to speculation (1. 'undiagnosed conditions' = speculation. 2. 'but what would anyone else do, m'lud?' = speculation)? Seems she's clutching at straws and going beyond mitigation regarding the facts.

If you think she's erred ethically ring the SRA. Remember that there will be a lot of information in this case that you've not seen or heard.

Avatar
Angry Egg | 7 years ago
2 likes

I think I am getting radicalised more and more everytime I read these stories...

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garuda | 7 years ago
2 likes

That's more like it. With the feel good cyclist gets justice trend lately, here I was thinking it is no longer okay to kill people using cars, but, nope, it is still is! Rejoice fellow drivers! The justice system will gladly absolve you of any guilt as a bonus too.

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don simon fbpe | 7 years ago
3 likes
Quote:

Who is to know what anyone would do in that situation until they are in it?”

Well Natalie Cheesman sounds like a really nasty piece of shit!

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Yorkshire wallet | 7 years ago
4 likes

It's times like this you wish 'cyclists' were some sort of vigilante mob and this guy would get what should be coming to him. 

It's a pity you can't do some sort of dark web crowdfunding to get him done over. 

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handlebarcam | 7 years ago
6 likes

When a society deems incompetence to be a valid excuse for killing a person with a car, or at least enough of a mitigating factor to let them back behind the wheel in a mere twelve months, something is very, very wrong. Unfortunately, you cannot ban thick people from driving, because public transport doesn't serve all the places where menial work is done. They are also valuable consumers who buy millions of cars.

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bendertherobot | 7 years ago
1 like

https://www.sentencingcouncil.org.uk/offences/item/fail-to-stopreport-ro...

 

It's getting a bit tiresome posting links. Can someone explain how the Magistrate has erred in relation to the single charge brought by the CPS?

Avatar
I love my bike replied to bendertherobot | 7 years ago
1 like
bendertherobot wrote:

https://www.sentencingcouncil.org.uk/offences/item/fail-to-stopreport-ro...

 

It's getting a bit tiresome posting links. Can someone explain how the Magistrate has erred in relation to the single charge brought by the CPS?

Unfortunately your information is the answer - as the trial & sentence can only be for the charge(s) brought.

If he fails his ~5hr/wk community service in the coming year, he could get to spend some time inside.

Avatar
bendertherobot replied to I love my bike | 7 years ago
3 likes
I love my bike wrote:
bendertherobot wrote:

https://www.sentencingcouncil.org.uk/offences/item/fail-to-stopreport-ro...

 

It's getting a bit tiresome posting links. Can someone explain how the Magistrate has erred in relation to the single charge brought by the CPS?

Unfortunately your information is the answer - as the trial & sentence can only be for the charge(s) brought.

If he fails his ~5hr/wk community service in the coming year, he could get to spend some time inside.

I know it's the answer. It's in relation to the call to remove her from the bench. We do this regularly on road.cc. Everyone complains that the Judge/Magistrate has failed without checking their actual legal powers in the first place.

Avatar
Awavey replied to bendertherobot | 7 years ago
1 like
bendertherobot wrote:
I love my bike wrote:
bendertherobot wrote:

https://www.sentencingcouncil.org.uk/offences/item/fail-to-stopreport-ro...

 

It's getting a bit tiresome posting links. Can someone explain how the Magistrate has erred in relation to the single charge brought by the CPS?

Unfortunately your information is the answer - as the trial & sentence can only be for the charge(s) brought.

If he fails his ~5hr/wk community service in the coming year, he could get to spend some time inside.

I know it's the answer. It's in relation to the call to remove her from the bench. We do this regularly on road.cc. Everyone complains that the Judge/Magistrate has failed without checking their actual legal powers in the first place.

Well they only gave 5 months, 26 weeks is more like 6,so how much more serious a case do they think they need the room to deal with without applying the maximum ? He plead guilty m'lud ? So what was the mitigating factor for a suspended sentence ? an undiagnosed mental capacity condition ?

Clearly leaving the scene of an accident by itself is not designed to deal with crashes that result in the death of one of the parties involved,CPS clearly felt not possible to convict on anything else as not enough evidence...and yet it is automatically taken as a given in the sentencing for the actual charge they did bother with,the 'accident' the accused left & didn't report was the result of a collision by the car driven by the accused,who then fled the scene and it resulted in at least 'serious' injury to the other party according to sentencing guidelines. Surely even a room full of part time or bar stool lawyers can spot the logic trap there.

Avatar
bendertherobot replied to Awavey | 7 years ago
1 like
Awavey wrote:
bendertherobot wrote:
I love my bike wrote:
bendertherobot wrote:

https://www.sentencingcouncil.org.uk/offences/item/fail-to-stopreport-ro...

 

It's getting a bit tiresome posting links. Can someone explain how the Magistrate has erred in relation to the single charge brought by the CPS?

Unfortunately your information is the answer - as the trial & sentence can only be for the charge(s) brought.

If he fails his ~5hr/wk community service in the coming year, he could get to spend some time inside.

I know it's the answer. It's in relation to the call to remove her from the bench. We do this regularly on road.cc. Everyone complains that the Judge/Magistrate has failed without checking their actual legal powers in the first place.

Well they only gave 5 months, 26 weeks is more like 6,so how much more serious a case do they think they need the room to deal with without applying the maximum ? He plead guilty m'lud ? So what was the mitigating factor for a suspended sentence ? an undiagnosed mental capacity condition ? Clearly leaving the scene of an accident by itself is not designed to deal with crashes that result in the death of one of the parties involved,CPS clearly felt not possible to convict on anything else as not enough evidence...and yet it is automatically taken as a given in the sentencing for the actual charge they did bother with,the 'accident' the accused left & didn't report was the result of a collision by the car driven by the accused,who then fled the scene and it resulted in at least 'serious' injury to the other party according to sentencing guidelines. Surely even a room full of part time or bar stool lawyers can spot the logic trap there.

6 months is the maximum and, it appears, though it's not clear, that he pleaded guilty. That attracts discount of up to a 1/3 which can operate so as to turn a prison sentence into a suspended sentence. In this case the bench decided that the custodial threshold had been passed. That is the only reason a suspended was possible. It's entirely within the Court's discretion to add up all of the factors indicating greater culpability and harm and discount them due to offender mitigation. So a sentence of 5 months suspended is entirely within the sentencing guidelines that this judge had to be sentence with. 

The guidelines don't distinguish the how of the accident, they simply deal with sentencing it according to the gravity of this offence. There's no logic trap there, many offences deal with harm in the same way regardless of whether the offence is one of harm or "regulatory" such as this one. It's an imperfect system but, at least, there's no loophole.

What I would like to see is him called back for his actions as he left Court. Others have been for words/actions/posts on facebook. It could well be that he's already breached his suspended sentence provisions.

Avatar
Housecathst replied to bendertherobot | 7 years ago
3 likes
bendertherobot wrote:

https://www.sentencingcouncil.org.uk/offences/item/fail-to-stopreport-ro...

 

It's getting a bit tiresome posting links. Can someone explain how the Magistrate has erred in relation to the single charge brought by the CPS?

 

Your right, the cps are a fucking disgrace too.

how do we find out where this remedial works so that we can insure he losses this oh so important job, I assume his a brain surgeon. 

 

Avatar
bendertherobot replied to Housecathst | 7 years ago
0 likes
Housecathst wrote:
bendertherobot wrote:

https://www.sentencingcouncil.org.uk/offences/item/fail-to-stopreport-ro...

 

It's getting a bit tiresome posting links. Can someone explain how the Magistrate has erred in relation to the single charge brought by the CPS?

 

Your right, the cps are a fucking disgrace too.

 

Well, they can only charge on the basis of the evidence available. Where did they go wrong in this case?

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Must be Mad | 7 years ago
3 likes
Quote:

suffered from undiagnosed learning difficulties

oh well of course then - innocent, and off you go chap - take it easy.

One would have though that if you wanted to present 'learning difficulties' *in a court case* as a defence or mitigating factor, then you would pop along to see a specialist and get it diagnosed.

Avatar
FluffyKittenofT... | 7 years ago
5 likes

The frequency of these sorts of stories makes one wonder how magistrates get appointed. Be interesting to know how many of them are themselves bad drivers, and how many are (exclusively) cyclists or pedestrians. Seems like there might be a consistent bias involved.

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rowes | 7 years ago
7 likes

Looking on Streetview, it looks like Redon Way is a well lit, straightish road, which is probably suitable for more than 15-20mph, so doubt he was doing that.

The guys obviously a tool and should be imprisoned, but Linda Smith (Magistrate) needs to be removed from office.

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Mungecrundle | 7 years ago
5 likes

Un-fucking-believable.

Not that I wish harm on anyone, but if there is such a thing as karma, I sincerely hope the utterly despicable Mr O'Shea's next victim, and there will be someone, is related to one of those magistrates. Because I really want them to have to explain their decision to let this scumbag walk free, after what he did and the actions he took in trying to avoid responsiblity, to someone who they genuinely care about.

 

My deepest condolences to the friends and family of Mr Tozer.

M

Avatar
tritecommentbot | 7 years ago
4 likes

Oh poor guy, might lose his job.

 

Definitely a pattern of the cyclist looking like a nice guy and the dangerous driver looking like a massively punchable scumbag.

 

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brooksby | 7 years ago
9 likes

Oh yeah, this is the guy who made obscene gestures at reporters outside court and grinning like the Cheshire Cat, on coming out of the court after his sentencing. Clearly utterly repentant.

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