A driver who ploughed through a line of cones and killed a road worker has been spared jail after a judge ruled he could not be sure he was using a mobile phone at the time.
Anthony Tompkins veered across a dual carriageway and hit a group of workmen including victim Steven Tolly, who suffered fatal injuries when he was thrown against a cauldron of hot tar.
Tompkins was delivering furniture to North Devon when he crashed on the North Devon link road in January 2013 just after another driver had seen his white Iveco van weaving between lanes.
A dashboard mounted phone which was seized from the van by police showed he had opened an eBay app a few minutes before the crash but he has always denied being distracted by it
Mr Tolly, aged 48, from Tiverton, who was due to marry his long time partner Janice Rainey in September 2013, died six days later at Derriford Hospital in Plymouth.
Tompkins, aged 47, of Trehurst Farm, Tideford, near Saltash, admitted causing death by careless driving and was jailed for 12 months, suspended for two years and ordered to do 200 hours unpaid community work.
He was also banned from driving for four years by Judge Graham Cottle at Exeter Crown Court.
The judge complained that a decision by the Crown Prosecution Service not to proceed with the more serious charge of causing death by dangerous driving had tied his hands.
He told Tompkins:”I have been placed in a difficult and unsatisfactory position when it comes to passing sentence. I am bound to accept the basis of plea and sentence you accordingly.
“I make it quite clear that if I was sentencing on the basis of dangerous driving and driving while using a mobile phone device, you would receive a substantial prison sentence.
“I take into account that at some point on that journey you used your mobile phone to access eBay. However I sentence on the basis your driving was not affected by that immediately before this tragedy.
“I cannot ignore the possibility you were in some way affected by fatigue. You were at the time driving enormous distances.
“This case has been a tragedy for those involved in the life of the deceased. No sentence would reduce the pain felt by many who have been deprived of a good man.”
Tompkins was a self employed delivery driver operating from his home and covering up to 1,500 miles a week delivering furniture all over Britain. He also had his own business trading furniture on eBay.
On the day of the accident he had driven from Saltash via an antique shop near Exeter Airport and was on his way to North Devon via the A 361 North Devon link.
His van was travelling at around 55 mph when it veered for no apparent reason into the coned off area on the dual carriageway section of the link road at Gornhay Cross, Tiverton and hit a large cauldron full of hot tar where Mr Tolly and two other men were working.
One of the others jumped clear, another suffered broken ribs but Mr Tolly took the worst of the impact and suffered horrific head injuries when he was thrown into air and against the side of the hot box full of tar.
Mr Ian Bridge, defending, said Tompkins has always insisted he had not been distracted by his phone and may have suffered a series of mini-sleeps because of a previously undiagnosed sleep disorder.
He said: “He wants to tell Mr Tolly’s family how sorry he is and how there isn’t a day that goes by when he doesn’t think about the fact that he killed Mr Tolly by his driving.”
Mr Tolly’s partner Janice Rainey made an impact statement which was read to the court earlier this week.
She said she had been forced to move from a three bedroomed house with a lovely garden because she could no longer afford it after Mr Tolly’s death.
She described kissing goodbye to Steven when he went to work on the morning of the accident and then being taken to his bedside at the intensive care unit at Derriford after the accident.
She said:”He had a really horrific injury and massive swelling to his head. I saw him before they started to clean him up and seeing blood and tarmac in his wounds.
“He never regained consciousness. There were no last words. He was gone in the blink of an eye. He died seconds after they turned off the life support machine.
“I am relieved Tompkins has admitted his guilt but he has still not told us exactly what happened. I am still left wondering why.
“I miss Steven every single day and think of all the things we did together. There was so much fun and laughter. He was amazing and I loved him so much.
“After his death I found the wedding rings which he had planned to give me as a surprise. My daughter Jade is engaged but Steven will never be able to walk her down the aisle.
“I want to get part of his ashes made into a piece of glass jewellery which she will wear so he can be with her on that special day.”
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