R v Cooksley and others

All England Official Transcripts, 2003, R v Cooksley and others

R v Cooksley and others

CRIMINAL; Sentencing

Sentencing - Sentencing principles - Causing death by dangerous driving - Causing death by careless driving when under the influence of drink or drugs - Guidelines.

[2003] EWCA Crim 996, (Transcript: Smith Bernal)

COURT OF APPEAL (CRIMINAL DIVISION)

LORD WOOLF CJ, GAGE, MOSES JJ

3APRIL 2003

H Roberts for the First Appellant

S Morley for the Second Appellant

G Baxter for the Third Appellant

G Mercer QC for the Fourth Appellant

N Hilliard for the Respondent

Hodson Parsons James and Vaux; Pattinson and Brewer; Cobleys; Bennett Griffin; Treasury Solicitors

LORD WOOLF CJ
(reading the judgment of the coourt): [1] This judgment relates to three appeals against sentence and one Attorney General's Reference. The appeals and the reference have been listed together to enable us to decide whether we should issue fresh guidelines as to sentencing for the offence of causing death by dangerous driving and careless driving when under the influence of drink or drugs in view of the advice of the Sentencing Advisory Panel of February 2003 (the "Advice") which recommended that there should be new guidelines. In his foreword, the Chairman of the Panel, Professor Martin Wasik, pointed out that:

"This offence causes particular difficulty for sentencers. By definition, it is one which always gives rise to extremely serious harm: the death of at least one victim (and in some cases serious injury to others). Understandably this often leads to calls from victims' families, and from the wider community, for tough sentencing. On the other hand, an offender sentenced for causing death by dangerous driving did not intend to cause death or serious injury, even in the extreme case where he or she deliberately drove for a prolonged period with no regard for the safety of others.

The Panel believes that new guidelines will help sentencers to strike an appropriate balance between the level of culpability of the offender and the magnitude of the harm resulting from the offence.

The Panel drew up its initial proposals on the basis that the outcome of an offence, including the number of people killed, was relevant to the sentence, but that the primary consideration must always be the culpability of the offender. That was supported by the majority of respondents to our consultation paper, and it remains our view.

Two of the detailed points in the Panel's Advice deserve particular mention. One is the significance of multiple deaths. Although the number of people killed is often a matter of chance, there are (as some of our consultees pointed out to us) cases where the offender has knowingly put more than one person at risk, or where the occurrence of multiple deaths was reasonably foreseeable. In such cases, we recommend that the occurrence of more than one death should be treated as a more seriously aggravating factor.

The second point is the inclusion of 'driving when knowingly deprived of adequate sleep or rest' in the list of factors that would aggravate the seriousness of an offence. Under previous sentencing guidelines, 'briefly dozing at the wheel' was seen as an example of a 'momentary dangerous error of judgment', indicating a less serious offence.

The Panel's view (again supported by consultees) is that falling asleep is more likely to aggravate than mitigate the seriousness of an offence, because drivers do not normally fall asleep without warning, and the proper course of action for a motorist who feels drowsy is to stop driving and rest."

[2] Mr Nicholas Hilliard appears on behalf of the Attorney General on the reference. In addition, he has assisted the court by making submissions on the Advice of the Sentencing Advisory Panel. He has referred to paras 1.1 to 1.3 of the Department of Transport's paper "Tomorrow's roads: safer for everyone. The Government's road safety strategy and casualty reduction target for 2010". Those paragraphs provide:

"1.1 Road accidents cause immense human suffering. Every year, around 3,500 people are killed on Britain's roads and 40,000 are seriously injured. In total, there are over 300,000 road casualties, in nearly 240,000 accidents, and about fifteen times that number of non-injury incidents. This represents a serious economic burden; the direct cost of road accidents involving deaths or injuries is thought to be in the region of Ł3 billion a year.

1.2 Nevertheless, Britain has had -relatively speaking -remarkable success in reducing road casualties. And this is despite the vast growth in traffic since the beginning of the last century. In 1930 there were only 2.3 million motor vehicles in Great Britain, but over 7,000 people were killed in road accidents. Today, there are over 27 million vehicles on our roads but far fewer road deaths.

1.3 In 1987 a target was set to reduce road casualties by one-third by 2000 compared with the average for 1981-85. We have more than achieved this target for reducing deaths and serious injuries. Road deaths have fallen by 39% and serious injuries by 45% and we are now one of the safest countries in Europe and indeed the world. However, there has not been any such steep decline in the number of accidents, nor in the number of slight injuries, although improvements in vehicle design have helped to reduce the severity of injuries to car occupants."

[3] He drew our attention to para 12 of the Advice, which indicates that driving offences causing death are among those most frequently referred by the Attorney General to this Court because he considers that the sentence at trial was unduly lenient. The Attorney General is in favour of fresh guidelines being issued. We have come to the conclusion that the following guidelines should be issued. They are based upon the Advice, the terms of which in general we accept. The new guidelines shall come into force forthwith and should be applied by courts when passing sentence from the date of this judgment.

[4] The Advice refers to the possibility of the maximum sentence being increased for causing death by dangerous driving by Parliament. This guidance is given on the basis of the existing maximum penalty which is 10 years imprisonment. In addition, disqualification for a minimum period of 2 years and endorsement of the offenders licence are obligatory and the offence carries 3 - 11 penalty points. The offender must also be required to pass an extended driving test before his licence can be restored.

[5] The offence of causing "the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place" was created by s 1 of the Road Traffic Act 1988 (the "RTA 1988"), as substituted by s 1 of the Road Traffic Act 1991 ("the RTA 1991"). The maximum penalty for this offence was originally 5 years imprisonment but this was increased to the present maximum of 10 years by the Criminal Justice Act 1993.

[6] The significant distinction between the former offence of causing death by reckless driving and reckless driving is that the new offences do not require evidence of the offenders state of mind as the test is now objective. When a person is to be regarded as driving dangerously for the purposes of both offences is now contained in s 2A of the RTA 1988 (inserted into that Act by the RTA 1991). That section provides that a person is to be regarded as driving dangerously if:

"a) The way he drives falls far below what would be expected of a competent and careful driver, and

b) It would be obvious to a competent and careful driver that driving in that way would be dangerous."

A person is also to be regarded as driving dangerously if, "it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous."

[7] Section 2A(3) further provides that in determining what would be expected of and obvious to a competent and careful driver regard must be had not only to the circumstances of which he could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accused. This last provision does introduce a subjective element into the offence of driving a vehicle in a dangerous state but this does not materially alter the objective nature of the offence as a whole.

[8] Dangerous driving has to be distinguished from a careless and inconsiderate driving (section 3 RTA 1988) and causing death by careless driving when under the influence of drink or drugs (section 3A RTA 1988). The former offence is a summary offence for which the offender is not subject to imprisonment and has a maximum penalty of a level 4 fine (currently Ł2,500). Disqualification is discretionary and the offence carries 3 - 9 penalty points. The latter offence is indictable only and subject to the same maximum penalty of 10 years imprisonment.

[9] There is still the offence of motor manslaughter in relation to which a sentence of life imprisonment can be imposed. It is also an offence to which s 2 of the Crime (Sentences) Act 1997 applies so that in the absence of exceptional circumstances relating either to the offender or to his offences a mandatory sentence of imprisonment for life must be imposed if the offender has a previous conviction for a "serious offence."

[10] Where death is not a consequence of the dangerous driving, then the maximum penalty is 2 years imprisonment. As that offence can still result in catastrophic injuries being caused by an accident we agree with the Advice that "under the present structure there is an unduly large gap between the maximum of 2 years for dangerous driving and 10 years for an offence in which the same standard of driving "has by chance resulted in death". Like the Panel, we therefore welcome the proposed 5 year maximum for the basic offence of dangerous driving. We do not see the same need to increase the maximum of 10 years imprisonment for death by dangerous driving, particularly as the offence of motor manslaughter still remains. That offence being reserved for situations where on the facts there was a very high risk of the driving resulting in death. (See R v Pimm 14 Cr App Rep (S) 730, [1994] RTR 391.)

[11] Before referring to the Guidelines, we would make the following points about sentencing for death by dangerous driving:

"i) Although the offence is one which does not require an intention to drive dangerously or an intention to injure, because before an offender can be convicted of dangerous driving, his driving has to fall "far below" the standard of driving that would be expected of a competent and careful driver and the driving must be such that it would be obvious to the same competent and careful driver that driving in that way would be dangerous, it will usually be obvious to the offender that the driving was dangerous and he therefore deserves to be punished accordingly.

ii) In view of the much heavier sentence which can be imposed where death results as compared with those cases where death does not result, it is clear that Parliament regarded the consequences of the dangerous driving as being a relevant sentencing consideration so that if death does result this in itself can justify a heavier sentence than could be imposed for a case where death does not result.

iii) Where death does result, often the effects of the offence will cause grave distress to the family of the diseased. The impact on the family is a matter that the courts can and should take into account. However, as was pointed out by Lord Taylor CJ in Attorney General's References Nos. 14 and 24 of 1993 (Peter James Shepherd, Robert Stuart Wernet) [1994] 15 CAR (S) 640 at P644:

"We wish to stress that human life cannot be restored, nor can its loss be measured by the length of a prison sentence. We recognise that no term of months or years imposed on the offender can reconcile the family of a diseased victim to their loss, nor will it cure their anguish."

iv) A factor that courts should bear in mind in determining the sentence which is appropriate is the fact that it is important for the courts to drive home the message as to the dangers that can result from dangerous driving on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standards of driving. Motor vehicles can be lethal if they are not driven properly and this being so, drivers must know that if as a result of their driving dangerously a person is killed, no matter what the mitigating circumstances, normally only a custodial sentence will be imposed. This is because of the need to deter other drivers from driving in a dangerous manner and because of the gravity of the offence."

[12] Prior to the increase in the maximum period imprisonment to 10 years and when the offence was still causing death by reckless driving this court gave a guideline judgment in R v Boswell [1984] 6 CAR 257. The legislative changes since that time have meant the guidance in that case is out of date. However, in the case of Warnet and Shepherd to which reference has already been made the court indicated that the list of aggravating and mitigating circumstances, set out in Boswell were still relevant, but that where a driver had driven with selfish disregard for the safety of other road users or of his passengers of with a degree of recklessness, instead of the appropriate sentence being 2 years or more, sentences of upwards of 5 years would be appropriate. As is pointed out by the Advice, the import of that decision is that bad cases should be dealt with at least twice as severely as before but without necessarily affecting sentencing in cases which previously attracted shorter custodial terms or making custodial sentences more likely in those cases where custody would not previously have been considered necessary. In practice, however, it is clear that there has been an upward trend across the range of cases, and, in particular that non-custodial sentences are rarely used.

ASSESSING THE SERIOUSNESS OF AN OFFENCE

[13] In the Advice the Panel expresses their view in these terms:

"13. The key problem for a sentencer dealing with this offence is the tension between the outcome of the offence (which is inevitably the death of at least one victim) and the degree of the offender's culpability. The Panel's provisional view, that the offender's culpability should be the dominant component in the sentencing exercise but that the outcome of the offence should have some effect, was strongly endorsed by the majority of respondents to the consultation paper. The Panel understands the view of the minority, that causing death is invariably a very serious crime, but reaffirms its initial view that culpability must be the dominant factor when the offence involves no intention to kill or injure."

[14] As we have made clear, in accord with the view of the minority referred to in the Advice, we accept that causing death is invariably a very serious crime. Nonetheless, we do not dissent from the Panel's view that culpability must be the dominant factor when assessing as precisely as possible just where in the level of serious crimes the particular offence comes.

[15] The Panel sets out a series of aggravating and mitigating factors. These are more extensive than those that were set out in Boswell. We adopt them but they stress that should not be regarded as an exhaustive statement of the factors. In addition it is important to appreciate that the significance of the factors can differ. There can be cases with three or more aggravating factors, which are not as serious as a case providing a bad example of one factor. They are as follows:

"Aggravating Factors

"Highly culpable standard of driving at time of offence

(a) the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a 'motorised pub crawl'

(b) greatly excessive speed; racing; competitive driving against another vehicle; 'showing off'

(d) a prolonged, persistent and deliberate course of very bad driving

(e) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking)

(f) driving while the driver's attention is avoidably distracted, eg by reading or by use of a mobile phone (especially if hand-held)

(g) driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills6

(h) driving when knowingly deprived of adequate sleep or rest

(i) driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns

Driving habitually below acceptable standard

(j) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle

(k) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving

Outcome of offence

(l) more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable)

(m) serious injury to one or more victims, in addition to the death(s)

Irresponsible behaviour at time of offence

(n) behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape

(o) causing death in the course of dangerous driving in an attempt to avoid detection or apprehension

(p) offence committed while the offender was on bail8."

Mitigating Factors

"(a) a good driving record;

(b) the absence of previous convictions;

(d) genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);

(e) the offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and

(f) the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving."

[16] Having referred to the aggravating factors, the Panel deals with specific situations which have been considered in recent authorities. One such situation is what the Panel describes as "avoidable distractions". The example given, supported by the case of Browning [2002] 1 CAR (S), 377 is the use of mobile phones when driving. In Browning the defendant was a lorry driver who veered of the road and killed a man in a lay-by while sending a text message. This court upheld the custodial sentence of 5 years. In giving the judgment of the court Mance LJ made a statement which we would endorse. He said, "The use of a mobile phone to read and compose text messages while driving is a highly perilous activity. Even the use of a hand-held mobile phone by a driver whilst moving, a much too common feature of driving today, is self-evidently risky. But the risks of reading and composing, text messages appears to us of a wholly different order and to be to use the judges words, of the most "blatant nature". We would respectfully endorse those words. In that case Browning had pleaded guilty but there had to be a Newton hearing. Browning's evidence was not accepted so he was not entitled to full credit for his plea. The sentence of 5 years for an offender of good character and who was remorseful was upheld. Browning provides a useful example of what we would regard as being the current appropriate level of sentencing.

[17] Explaining their inclusion as an aggravating factor at (h), driving when knowingly deprived of sleep or rest, the Panel was right to draw attention to the observations of this Court in Attorney General's Reference No. 26 of 1999 [2001] CAR (S) 394. There it was said that falling asleep at the wheel usually involves a period during which a driver is conscious of drowsiness and difficulty in keeping his or her eyes open and the fact that the proper course for a driver in such a position to adopt is to stop driving and rest.

MULTIPLE DEATHS

[18] The Panel then discusses the authorities in respect of multiple deaths and in particular the case of Pattipher [1989] 11 CAR (S) 321 and France [2002] EWCA Crim 14019. We agree with the conclusion of the Panel that the number of deaths resulting from dangerous driving is relevant to the length of sentence. There are cases in which the defendant if, for example, he is a coach driver who drives after being deprived of sleep or under the influence of alcohol where he must be taken to appreciate that the consequence could be that there will be more than one death if he is involved in an accident. Certainly in that situation, multiple deaths will be a more seriously aggravating feature.

[19] Even where there is no reason to suggest that the defendant is knowingly putting more than one person at risk, the fact that the consequences of dangerous driving are particularly serious, for example, involving multiple deaths is a relevant factor as to the length of sentence. That is the view that will be taken by the public. However, we are certainly not suggesting that the sentence should be multiplied according to the number of persons who sadly lose their life. It is still necessary to regard the offender's culpability in relation to the driving as the dominant component in the sentencing exercise. While the sentence is increased to reflect more than one death the sentence must remain proportionate to the nature of an offence which does not involve any intent to injure.

THE OFFENDER'S OWN INJURIES

[20] The Advice relies on the case of R v Maloney [1996] 1 CAR (S) 221 for suggesting that a sentence can be reduced because of the extent of the offender's own injuries if the injuries are serious. We agree this is a relevant consideration. The injuries can make the sentence of imprisonment a greater punishment than usual. His injuries are also in themselves a punishment and should bring home to the offender, in the most direct possible way, what can be the consequences of dangerous driving. We however, also agree with the Panel that the fact that the offender has been injured should not automatically be treated as a mitigating factor and that only "very serious, or life changing, injury should have a significant effect on the sentence. Some indication of the scale of the effect is provided by the facts of Maloney. The offender had a very severe head injury, severe facial injuries, he lost the sight of his right eye and his right little finger, and there was continuing loss of use of his right arm and leg. On appeal this court reduced the sentence from 5 to 4 years but in doing so were taking into account, not only the injuries, but the fact that the trial judge had erroneously sentenced the appellant on the basis he had consumed an excessive amount of alcohol.

LENGTH OF SENTENCE

NO AGGRAVATING CIRCUMSTANCES

[21] As in the case of sentencing for any offence a sentence of imprisonment should only be imposed if necessary and then for no longer than necessary. In these cases an immediate custodial sentence will generally be necessary. The starting point for causing death by dangerous driving should be a short custodial sentence of perhaps 12 to 18 months. That is the approach that should be adopted even when there is a plea of guilty, though the plea of guilty will justify the appropriate reduction in the length of sentence. This is in relation to an adult offender. We regard as an example of this approach the case of Brown [2002] 1 CAR (S) 504. In Brown the defendant momentarily fell asleep while driving his van in daylight, drifted across the road and collided head on with a car travelling in the opposite direction, killing a passenger in it. The mitigating factors were guilty plea, previous good character with an impeccable driving record and the fact that the offender displayed genuine shock and remorse. In addition, the effect on the appellant's life and family was devastating. This court reduced the sentence to 9 months imprisonment.

[22] Brown makes it clear that in order to avoid a custodial sentence there has to be exceptional mitigating features. As exceptional features, the Panel refer to the case of Jenkins [2001] CAR (S) 265. In that case the defendant was 16 years old with learning difficulties who lost control of a motorcycle because of its dangerous condition and his pillion passenger, who was his best friend, was killed. He pleaded guilty because it would have been obvious to a competent and careful driver that the condition of his vehicle was dangerous. He was sentenced to detention and a training order for 12 months but the Court of Appeal, while agreeing that the custodial sentence was warranted, "as a justifiable statement of society's abhorrence of dangerous driving and the use of dangerous vehicles on a public road", took into account that the defendant was not competent to maintain the bike and the fact that his mental condition prevented him from fully appreciating its dangerous condition. In the circumstances there having been delay in the case coming to trial, a 2 year supervision order was substituted. There obviously can be other exceptional situations and we consider it preferable not to try and anticipate what those situations will be. It is sufficient to emphasise that they have to be exceptional.

INTERMEDIATE CULPABILITY

[23] As against that case, the Panel states and we would agree, that

"30. An offence involving a momentary dangerous error of judgment or a short period of bad driving may be aggravated by a habitually unacceptable standard of driving on the part of the offender (factors (j) or (k) by the death of more than one victim or serious injury to other victims (factors (l) and (m) or by the offender's irresponsible behaviour at the time of the offence (factors (n) to (p). The presence of one or more of these features could indicate a sentence within the higher range, up to three years."

Accordingly, our starting point is 2 to 3 years. We do, however, qualify the Panels advice to this extent that we foresee circumstances, particularly where there is more than one of the factors present referred to above where 5 years could be appropriate if, for example, there is more than one victim. Unfortunately, because of the range of the variety of facts it is not possible to provide more precise guidelines.

[24] The Panel refer to the case of Braid [2002] 2 CAR (S) 509. In Braid the offender during daylight and in good conditions overtook a lorry while approaching a blind bend and collided head on with an approaching car. A passenger in the car was killed and in addition the driver of the other vehicle suffered injuries which would permanently affect his mobility. This is therefore a case where factor (m) applied and culpability was aggravated by serious injury to another victim in addition to the death of the deceased. The offender pleaded guilty. He was 20 years of age and of good character. The sentencing judge noted he had driven very badly over a short distance. This Court endorsed the view of the sentencing judge that personal circumstances did not weigh heavily in the balance in these cases. The public were entitled to require the courts to reflect the loss of life and to demonstrate that dangerous driving was a serious social evil, which if death results would lead to a substantial custodial sentence. The appellant should have appreciated that he was approaching a blind corner and that he could not see far enough to ensure that he could pass the articulated lorry safely. In reducing the sentence to 18 months detention in a young offenders institution, the court was, as it said, reflecting the many mitigating features. However, it also said that the case did not display any of the aggravating features. This would not be true in relation to the present guidelines and if the guidelines had been in force, we would not have expected the court to interfere with the period of 2 years detention imposed by the trial judge.

HIGHER CULPABILITY

[25] In relation to offences of higher culpability the Panel states:

"32. When the standard of the offenders' driving is more highly dangerous (as would be indicated, for example, by the presence of one or two of factors (a) to (i) the Panel suggests that the appropriate starting point would be a custodial sentence within the range from two to five years. The exact level of sentence would be determined by the dangerousness of the driving and by the presence or absence of other aggravating or mitigating factors."

[26] As a starting point we consider a bracket of 2 - 5 years is too wide. We suggest that sentencers should take as a starting point 4 - 5 years in relation to a contested case of this type. There will be cases which will involve higher sentences than 5 years because they are bad examples and cases, particularly where there is a plea, where the sentence will be less than 4 years where there are significant mitigating factors.

[27] The approach that we have just indicated is consistent with the approach of this court on Attorney General's Reference No. 58 of 2000 (Wynne) [2001] 2 CAR (S) 102; a sustained course of dangerous driving at excessive speeds, 50 mph in a 30 mph area was involved in that case. The offender had also consumed alcohol, although it was unclear whether this contributed to the offence. While driving on the wrong side of the road the offender collided head on with a motorcyclist who was killed. In addition a 7 year-old pillion passenger suffered leg injuries. The offender was an unqualified driver and he had left the scene of the crash immediately although he gave himself up to the police on the following day. On a guilty plea, this Court increased the sentence to 3 1Ú2 years. That sentence included an allowance for double jeopardy but for that allowance the sentence would not have been less than 4 years.

MOST SERIOUS CULPABILITY

[28] Here, what this Panel state is as follows:

"34. The Panel suggests that custodial sentences over five years should be reserved for cases involving an extremely high level of culpability on the offender's part. This might be indicated by the presence of three or more of aggravating factors (a) to (i), although an exceptionally bad example of a single aggravating feature could be sufficient to place an offence in this category. A sentence close to the maximum would be appropriate in a case displaying a large number of these features, or where there were other aggravating factors."

[29] The Panel do not give a starting point. We feel it would be helpful if we suggest again in a contested case a starting point of 6 years otherwise we endorse what the Panel states.

[30] The Panel gave as an example the case of Corkhill [2002] CAR (S) 60 where an offender was sentenced to 7 years detention. The Court of Appeal agreed this was a bad case but described it as "not among the very worse" and reduced the sentence to 5 years. Bearing in mind that Corkhill was 19 years old and pleaded guilty, we see it as consistent with our starting point.

[31] As an example of the most serious case justifying a total custodial sentence of the maximum of 10 years we refer, as did the Panel, to Noble [2002] EWCA Crim 1713. The Court of Appeal made it clear in that case, that the maximum sentence was justified not simply by the number of deaths but by the range of other aggravating factors, including driving at an excessive speed while about 21Ú2 times over the alcohol limit and then seeking to avoid responsibility by claiming one of the victims had been driving.

STARTING POINTS

A. DEATH BY DANGEROUS DRIVING

[32] We have set out four starting points; no aggravating circumstances - 12 to 18 months; intermediate culpability - 2 to 3 years; higher culpability - 4 or 5 years and most serious culpability - 6 years or over. We make clear that starting points only indicate where a person sentencing should start from when seeking to determine what should be the appropriate sentence. There is, however, a danger in relation to the higher starting points of the sentencer, if he is not careful, double accounting. The sentencer must be careful not to use the same aggravating factors to place the sentence in a higher category and then add to it because of the very same aggravating features.

[33] In making our recommendations as to starting points, we have made the allowance we consider appropriate for the fact that those who commit offences of dangerous driving which result in death are less likely, having served their sentence, to commit the same offence again. Apart from their involvement in the offence which resulted in death, they can be individuals who would not otherwise dream of committing a crime. They, unlike those who commit crimes of violence, also do not intend to harm their victims.

B. CARELESS DRIVING UNDER THE INFLUENCE OF DRINK

[34] We have not, so far, mentioned the level of sentencing in cases of causing death by careless driving when under the influence of drink. The Panel have not advised that such cases should form a separate category. We agree. The driving may not not exhibit the aggravating factors set out in (a) to (i) of para 14 of the Panel's Advice. In some cases, the only aggravating factor will be the amount of alcohol consumed. In other cases, there may be the aggravating factor of disregarding a warning from a fellow passenger or knowingly driving a poorly maintained vehicle. There may be previous motoring convictions. There will also be cases where the driving is itself of significance in determining the appropriate sentence. As was made clear in R v Locke [1995] 16 Cr App Rep (S) 795, [1995] Crim LR 438, it is not necessary to have an additional count of death by dangerous driving before the full culpability of the offender's driving is taken into account in determining the right sentence. It will be perfectly possible for sentencing judges to fit cases of causing death by careless driving when under the influence of drink into one of the four guideline categories which we propose.

THE VIEWS OF THE VICTIMS FAMILIES

[35] Here, the Panel refer to the practice statement of the 16 October 2001 (Practice Direction (Victim Personal Statements) [2002] 1 CAR 69). The Panel also refers to the case of Roach [1999] 2 CAR (S) 105 where the court accepted that they could as an act of mercy reduce a sentence if relatives of a victim indicated that the punishment imposed on the offender was aggravating their distress. The Panel also refers to the fact that in that case Lord Bingham CJ said, "the court is not swayed by demands for vengeance and has to be very cautious in paying attention to pleas for mercy."

[36] The last case which we should refer because it was helpfully drawn to our attention by Mr Hilliard, on behalf of the Attorney General, is Attorney General's Reference No. 56 of 2002 (Nnamdi Megwa) [2002] EWCA Crim 2292. In that case the offender who was aged 37 pleaded guilty to two counts of causing death by careless driving when over the prescribed limit. He was sentenced to 2 years imprisonment on each count concurrently as well as being disqualified for 3 years.

[37] In that case a family had been driving in another vehicle at about 2.30am in the morning on the M1 motorway. Although how the accident occurred was not precisely established, it seems that the likely cause was the fact that the offender had fallen asleep and this caused his vehicle to collide with another vehicle travelling in the same direction and that vehicle then spun off the motorway killing the front seat passenger and the rear offside passenger and the rear nearside passenger. They were all members of the same family. The offender had been drinking and his blood alcohol concentration would have been, at the time of the accident, somewhere in the region of 105 milligrams of alcohol in 100 millilitres of blood. The number of persons injured and the fact that the offender had been drinking were relied upon by the Attorney General as aggravating features but there were mitigating features, namely the offender had pleaded guilty and shown genuine remorse, he was a man of good character, 37 years of age in responsible employment. The fact that the case was a result of a momentary inattention and not a prolonged course of bad driving was also relied upon.

[38] In giving the judgment of the court Kay LJ pointed out that, "sentences that would have been deemed appropriate 10 years ago would not begin to be considered to be right now. Sentences have been very substantially increased". Kay LJ added: "This was a case where there was no prolonged course of bad driving over and above that which is inevitably present in a case of this kind, but that any driving with excess alcohol is serious bad driving. If you drive with excess alcohol late at night, one of the possibilities is that it will increase the chances that you will fall asleep at the wheel. Those who fall asleep at the wheel, whether from excess alcohol or otherwise represent an enormous danger to other road users. Accordingly it is incumbent upon all to ensure they do not place themselves in a position where this is likely to happen."

[39] He also referred to the fact that "falling asleep is not generally something that happens in a moment. It is normally the end product of a process of feeling tired and people do have the opportunity to stop and avoid an accident when they start to feel that they are falling asleep". The court did not therefore regard the case as one of momentary inattention. However, it was not the worst driving. In addition the blood alcohol level was not a particularly high. However, the court went on to say, where more than one death is caused and where permanent serious injuries added to the factor of the number of deaths, those are matters that must be given some weight in the sentencing process. The fact that there were the deaths and one very serious injury was not in any way the result the driver intended and therefore the degree to which there is an increase in sentence for such factors is not generally thought to be a very marked. Nonetheless the authorities clearly establish that it is an important factor that has to be borne in mind. The court therefore took the view that a sentence in the brackets of 4 - 5 years should be imposed in a case of that sort. We respectfully agree.

DISQUALIFICATION

[40] As we have already indicated disqualification is mandatory for a minimum period of 2 years. The main purpose of disqualification is as the Panel advised, "forward looking and preventative rather than backward looking and punitive". It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads. We do, however, accept that for the offender being disqualified is a real punishment. The Panel suggests the risk represented by the offender is reflected in the level of culpability which attaches to his driving so that matters relevant to fixing the length of the driving disqualification for the offence of causing death by dangerous driving will be much the same as those factors we have listed already. We agree with this suggestion.

[41] We accept the advice of the Panel as to the length of bans. We do so notwithstanding the fact that the Panel adopts three bans of seriousness whereas in respect of imprisonment we have adopted four categories. We consider the Advice in relation to disqualification is sufficiently precise.

[42] The Advice was in the following terms:

"While those convicted of causing death by dangerous driving are likely to regard disqualification as an onerous part of the punishment for the offence, the main purpose of disqualification is forward-looking and preventative, rather than backward-looking and punitive. A driving ban is designed to protect road users in the future from an offender who, through his conduct on this occasion, and perhaps other occasions, has shown himself to be a real risk on the roads. In general, the Panel suggests, the risk represented by the offender is reflected in the level of culpability which attaches to his driving, so that matters relevant to fixing the length of the driving disqualification for the offence of causing death by dangerous driving will be much the same as those appearing in the list of aggravating factors for the offence itself. Shorter bans of two years or so will be appropriate where the offender had a good driving record before the offence and where the offence resulted from a momentary error of judgment. Longer bans, between 3 and 5 years, will be appropriate where, having regard to the circumstances of the offence and the offender's record, it is clear that the offender tends to disregard the rules of the road, or to drive carelessly or inappropriately. Bans between 5 and 10 years may be used where the offence itself, and the offender's record, show that he represents a real and continuing danger to other road users. Disqualification for life is a highly exceptional course, but may be appropriate in a case where the danger represented by the offender is an extreme and indefinite one. Noble (see paragraphs 36-37 above) was described by the Court of Appeal as 'one of those rare cases' where disqualification for life was necessary in order to protect the public."

[43] We do not agree that the length of the ban should be tailored to take into account the anticipated date of early release of the offender. On the other hand we accept that to extend the ban for a substantial period after release can be counter-productive particularly if it is imposed on an offender who is obsessed with cars or who requires a driving licence to earn his or her living because it may tempt the offender to drive while disqualified.

[44] The balancing of these conflicting considerations is very much the responsibility of the sentencer. In doing so the balancing exercise will require the sentencer to take into account the requirement which now exists that an order must be made that the offender is required to pass an extended driving test.

[45] We can now turn to the individual cases.

ROBERT CHARLES COOKSLEY

THE FACTS

[46] At Newport Crown Court on 20 August 2002 this appellant changed his plea from not guilty to guilty on a count of causing death by careless driving when under the influence of drink. On 10 September 2002 he was sentenced to a term of 4 years imprisonment, disqualified from driving for 6 years and ordered to take an extended re-test following a disqualification period. He appeals by leave of the single judge. The facts are as follows. At about 8.25pm on 1 September 2001 the appellant was driving along the A48 towards Newport when he ran into a cyclist travelling in the same direction. Immediately before the accident the driver of a car which was following the appellant's car noticed the appellant's car braking in a quick but controlled manner. The car behind the appellant's car pulled out to overtake and as it did so the front-seat passenger noticed that the appellant's car had hit the cyclist. That car pulled up and the driver and his passenger returned to the scene of the accident. The appellant was trying to resuscitate the cyclist and his female passenger was hysterical. An ambulance and the police were called. The injured cyclist was removed from the scene in the ambulance but later died. Police officers at the scene smelt alcohol on the breath of the appellant and his passenger. The appellant's passenger told police officers that she and the appellant had started drinking at 11.00am and they were on their way from one public house to another when the accident occurred. She said that she had told the appellant that he should not be driving but had gone along with him to avoid a row. Both she and the appellant tested positive on a roadside breath test but later at the police station the appellant refused to provide either a specimen of breath or blood for analysis. Following a plea and directions hearing, at which the appellant pleaded not guilty, the prosecution served the evidence of an expert who had made a back calculation from the roadside breath test relating to the amount of alcohol which it was alleged the appellant had consumed before the accident. In his opinion the appellant must have consumed at least 9 pints of beer before the accident although the appellant admitted to consuming only 4 pints. The defence instructed its own expert and it suffices to note that the accuracy of the prosecution expert's evidence ultimately was not challenged and the appellant pleaded guilty. He is now aged 46 and has a number of previous convictions which include in 1994 a conviction for driving with excess alcohol and in 2001 for failing to stop after an accident.

[47] On behalf of the appellant, it is submitted that apart from the consumption of alcohol there was an absence of serious culpability. Counsel submits that there is no evidence of the appellant's car meandering or wandering across the road. There is no evidence of excessive speed and the appellant remained at the scene of the accident. Further, it is submitted that the judge failed to give sufficient credit for the appellant's guilty plea and remorse shown by him.

OUR CONCLUSIONS

[48] In our judgment the submissions on the lack of culpability fail to address the gravity of the case against the appellant, namely that he had consumed such a quantity of alcohol as to cause him to fail to see the cyclist in time or at all. In addition, there is the aggravating feature that he had driven notwithstanding a warning from his passenger that he should not do so. In our judgment this was a bad case of causing death by careless driving when under the influence of drink. The defendant had spent a good part of the day drinking. He was warned not to drive by his passenger. Clearly, he cannot have seen the cyclist in time to avoid the accident. For these reasons his judgment must have been seriously affected by alcohol. In our opinion this case falls into the third category of seriousness or higher culpability, and notwithstanding the appellant's guilty plea, for which only limited credit was due, and the fact that this was a case of careless driving, the sentence was not manifestly excessive.

THE RESULT

[49] This appeal must be dismissed.

IAN PAUL STRIDE (2002 05928 Y5)

THE FACTS

[50] This appellant appeals against a sentence of 21Ú2 years imprisonment imposed at Maidstone Crown Court on 13 September 2002 following a trial at which he was convicted of causing death by dangerous driving. He was disqualified from driving for 5 years and until an extended re-test is taken.

[51] The appellant has been a professional lorry driver for over 20 years. On 16 December 2000 he had started work at 3pm. He drove to a garage in Kent to make a delivery and left that garage at 5.36pm. After driving a distance of only 19 miles, taking him some 22 minutes, an accident occurred on the M20 motorway. Two vehicles were stationary on the hard shoulder. One of them had broken down and a Peugeot 405 had parked behind the other car in order to assist. There were approximately seven people standing on the verge of the hard shoulder at the time, some were getting into the rear of the Peugeot. As the appellant's tanker approached, it slowly veered off the main carriageway onto the hard shoulder and into collision with the rear of the Peugeot. Tragically Richard Foord, in the back of the Peugeot at the time, was killed. The appellant told the police and maintained at trial that he had a sneezing fit causing him to leave the road.

[52] It is apparent that the trial judge directed the jury that if the explanation for the accident might have been that the appellant had sneezed, he should be acquitted. But if the jury was sure that, as the prosecution contended, the defendant had fallen asleep he should be convicted.

[53] The jury convicted and accordingly the judge sentenced him on the basis that the appellant had fallen asleep. It is conceded on behalf of the appellant that the judge was entitled to take that view.

[54] The appellant is 43 and of good character. He volunteered that he had been convicted of a traffic offence approximately 20 years ago and more recently of a minor speeding offence. A number of witnesses gave evidence and wrote of his honesty, integrity and hard work. The Pre-Sentence Report spoke of the fact that he had been traumatised by the accident. In his sentencing remarks the judge accepted that there were no aggravating features.

OUR CONCLUSIONS

[55] This, as we have said, was a case where a driver fell asleep at the wheel. Usually, as we have indicated at para 17 of this judgment, this will be an aggravating feature. Sleep is normally preceded by a period of drowsiness and difficulty in keeping the eyes open. But this was an unusual case. The appellant had not been driving for any lengthy period. Nor had he been working throughout the day. There was no reason why he should anticipate becoming tired, let alone falling asleep. In those circumstances we take the view that the judge was correct in declining to identify any aggravating feature and in particular we do not think this is a case where the driver was knowingly deprived of adequate sleep or rest.

[56] On the other hand, there was powerful personal mitigation. In those circumstances we do not think this case falls within our intermediate category of 2 to 3 years. It was a rare case of a driver momentarily and unexpectedly falling asleep at the wheel. In those circumstances we take the view that it falls within the lowest category and a sentence of 18 months imprisonment was appropriate.

[57] Additionally, we take the view that disqualification for driving for a period of 5 years was too long. Disqualification is primarily intended to provide a safeguard to the public for the future. In the light of this professional driver's good driving record we take the view that protection of the public does not require disqualification for 5 years and for that period we substitute a period of 3 years disqualification.

THE RESULT

[58] Accordingly in this case the appeal is allowed by substituting for the period of 21Ú2 years of imprisonment a period of 18 months imprisonment and for the disqualification of 5 years a period of 3 years and until an extended re-test is taken.

NEIL TERENCE JOHN COOK (2002 06552 W4)

THE FACTs

[59] This appellant was sentenced by the Recorder of Liverpool on 27September 2002 to a total of 7 years detention in a Young Offenders Institution for two offences of causing death by dangerous driving. He had pleaded guilty earlier. The appellant is aged 20. The facts demonstrate that these offences were of the most serious kind.

[60] On 17 May 2002 at about 4am the appellant was driving a Volvo motorcar. It was not his own and he was unable to identify the owner. There were five passengers in the car. He was driving the car on a dual carriageway in Liverpool in respect of which there was a 30mph speed limit. The area was known as dangerous and there were signs along it reading "Speed Kills" and "Slow Down Please". His speed was estimated at between 68 and 73mph at the time of the accident. As he approached a sharp left hand bend he lost control. The car hit the left hand kerb, rose into the air, struck a tree and crashed through the gardens of three houses demolishing a wall and a bay window. A passenger sitting in the rear and another passenger sitting in the front passenger seat were killed immediately. One other passenger suffered a large cut on her head, a fractured forearm and a chipped vertebrae at the top of her neck. Another passenger sustained serious head injuries requiring intensive support on a respirator and a fifth passenger suffered a fractured hip.

[61] The appellant had a bad driving record which included three previous offences of driving whilst disqualified. He was driving whilst disqualified at the time of these offences.

[62] As the Recorder of Liverpool noted in his sentencing remarks the only mitigation was that he had pleaded guilty when the case first came into the Crown Court and had expressed sorrow and remorse. There was graphic evidence of the impact his driving had had upon the relatives of the deceased.

[63] It was argued on this appellant's behalf that whilst there were significant aggravating features, deriving from the manner of his driving and the fact that he was disqualified, insufficient allowance had been made for the age of this appellant and his plea of guilty. Our attention was drawn to the decision of this court in the R v Corkhill [2002] 2 CAR (S) 18 in which a sentence of 7 years detention was reduced to 5 years having regard to the early plea of guilty and the appellant's youth.

OUR CONCLUSIONS

[64] In our judgment this case was worse. Two young people were killed and others suffered severe injuries as a result of this appellant's deliberate decision to drive at dangerous speed in order to impress his fellow passengers.

[65] Having regard to the appellant's sustained driving at speed and the fact that he was disqualified, we place this case within the most severe culpability category. The appellant drove persistently at an excessive speed in order to show off to his fellow passengers, aggravating features as identified by the Sentencing Advisory Panel at para 14(b). However, this appellant is entitled to some credit for his plea even though it was not entered at the earliest time. The conclusion we have reached is that a sentence of 7 years for a person of the appellant's age is an excessively high sentence and a sentence of 6 years detention will appropriately meet the requirements of punishment and deterrence for this serious offence.

THE RESULT

[66] Accordingly, we allow the appeal and quash the sentence of 7 years and instead impose a sentence of 6 years detention.

RICHARD CRUMP

[67] On 26 September 2002 at the Chichester Crown Court, the defendant, Richard James Crump was convicted of causing death by dangerous driving. On 29 November 2002 he was sentenced to 12 months' imprisonment suspended for 2 years. He was disqualified from driving for 4 years, ordered to take an extended driving test and ordered to pay Ł200 towards the costs of the prosecution. Her Majesty's Attorney-General applies under s 36 of the Criminal Justice Act 1988 for leave to refer the sentence to this Court for review because he considers it was unduly lenient. We grant leave.

THE FACTS

[68] The facts were as follows. At about 12.30pm on 18 January 2001 the defendant was driving his Peugeot motorcar south along South Farm Road, Worthing approaching a railway crossing. He had two passengers in his car. At the same time Hannah O'Leary, aged 86, was walking in South Farm Road in the vicinity of the railway crossing. As the defendant approached the crossing the signalman activated the warning bells and crossing lights sequence. The sequence was that yellow lights come on for 3 seconds and the audible warning started. After 3 seconds red lights start to flash. After another 7.5 seconds the facing barriers start to descend. A pedestrian saw the Peugeot drive over the railway line as the barriers descended. His evidence was that the defendant had to cross into the opposite carriageway on the north side of the line and "shimmy" his way diagonally across the crossing to get through. The pedestrian described the vehicle as travelling too fast. At the same time a taxi driven by Liberato Dichello approached the crossing from the south side as the lights flashed and the gates started to come down. He saw Mrs O'Leary step into the road off the east pavement. He stopped his vehicle short of where she was crossing so that she could cross in front of his taxi. His evidence was that she had reached about halfway across the lane when the Peugeot vehicle came over the crossing at an angle and struck her. By then the crossing gates were halfway down and the car was at an angle in order to avoid the gate. Mr Dichello thought that the car was travelling at more than 30mph. The defendant stopped the Peugeot a short distance from the point of impact. At the scene he spoke to a police officer saying "I had to make a snap decision. I was confronted by a red light and she stepped out from the side of the road in front of me." A little later when he was sitting alone in the back of a police car the defendant received a telephone call on his mobile from one of his passengers. The defendant's side of the conversation was recorded by a video system inside the police car. He said:

"Yeh, well, this is your fault. You know that don't' you? Do you know that? No? [pause].

Go on, give it loads. Go on, you can do it. Go on. Yeh, anyway."

[69] Later when interviewed he said that he thought he was probably travelling at about 40mph. He had not noticed the flashing lights and the warning bells and had been unaware of the crossing until one of his passengers had said "Quick, go, there's a crossing". He said that "It was like a split [second] decision thing . . . I wasn't expecting there to be a train crossing there and I've kind of obviously gone through it whilst its coming down at some point, not realised it, someone said "there's a barrier coming down" and then this woman just stepped out in front of me." Re-interviewed on 22 March 2001 Crump estimated his speed at 30 to 35 mph.

[70] As a result of the impact Mrs O'Leary sustained multiple injuries and on 14 February 2001 she died in hospital as a result of heart failure brought on by the injuries.

[71] The defendant is now aged 30. He had three previous conviction for speeding the last of which was in 1997.

THE REPORTS

[72] Before the judge there was a pre-sentence report and two medical reports. All these reports comment on the sincerity of expressions of remorse by the defendant. The medical reports show that the defendant suffers from a severe and disabling eczema. This condition requires treatment by a daily bath containing an emollient and the application of steroid ointment and moisturising creams. From time to time the defendant has to be admitted to hospital for in-patient treatment. A psychiatrist reported that the defendant showed signs of Post Traumatic Stress Disorder which he suspected had caused the defendant to develop a dependence on prescribed sleeping tablets and anti-anxiety drugs.

[73] The judge sentenced the defendant on the basis that he had approached the crossing travelling at a speed in the mid 30s. He said that it was implicit from his direction and the jury's verdict that the defendant having seen the warning lights decided to go on and take the various risks involved in not stopping. For this reason he had to drive an "S" course along the road in order to pass under the barrier on his side of the road. The judge concluded that only a custodial sentence was justified but that the interplay between the defendant's psychological make-up and his medical difficulties were such as to constitute exceptional circumstances enabling him to suspend the sentence.

THE SUBMISSIONS

[74] The Attorney-General contends that the following aggravating features were present.

"(1) The defendant failed to heed the warning bells and lights which would have been evident for some time.

(2) The defendant ran the risk of his vehicle blocking the railway line if he had not managed to drive under the crossing gates.

(3) The defendant had three previous convictions for speeding."

[75] The Attorney-General accepts that the following mitigating factors were present.

(1) Apart from road traffic offences the defendant had no other previous convictions.

(2) The defendant was in poor health. He suffered from severe eczema and had experienced some symptoms of post-traumatic stress disorder after the incident.

(3) The defendant was remorseful for what he had done."

[76] Mr Hilliard submitted that, on the judge's findings, this was a case of the defendant taking a deliberate risk by attempting to cross the railway crossing as the barriers were descending. He pointed to the risk of disastrous consequences which might have occurred if the defendant's vehicle had been trapped on the crossing. He submitted that the sentence of 12 months was unduly low and that the starting point should have been 21Ú2 years in prison. From this starting point some allowance could properly be made for the defendant's personal mitigation but the mitigation was not such as to amount to exceptional circumstances enabling the court to suspend the sentence.

[77] Mr Geoffrey Mercer QC representing the defendant before us, as he did in the lower court, submitted that, ignoring the defendant's medical condition, the sentence was not unduly lenient. He submitted that there were no aggravating features and that the decision to drive over the crossing as the barriers were descending was a split-second decision amounting to no more than an error of judgment. He further submitted that, in view of the defendant's medical condition, the judge was justified in suspending the sentence of imprisonment.

OUR CONCLUSIONS

[78] The Attorney General should have leave.

[79] We are of the opinion that the sentence passed was unduly lenient. In our judgment the aggravating feature in this case is the deliberate risk which the defendant took in deciding to drive across the railway crossing as the barriers were descending. In order to do so it was inevitable that he had to drive onto the wrong side of the road. There was the considerable risk that if he failed to pass under the second barrier he might cause a very serious accident involving a train. In our judgment his driving was such that it came into the second intermediate category to which we have referred; that is the 2 to 3 year bracket. In the circumstances, we accept the Attorney General's submission that the starting point was 21Ú2 years. Taking into account the defendant's considerable remorse and the other personal mitigation save for his medical condition in our view the appropriate sentence would have been 2 years.

[80] However, in our judgment, the judge was entitled to suspend the sentence. He had seen the defendant give evidence. The defendant's medical condition was undoubtedly serious and difficult to treat. In the course of his sentencing remarks the judge was handed a letter from the prison authorities in which it was stated that in principle the prison medical services would be able to give the prescribed level of care which the defendant's condition required. The judge found that in reality the prison service would, at the least, have extreme difficulty in coping with the defendant's condition. Having carefully read the medical reports, in our view, the judge was quite entitled to reach that conclusion and, as he stated, as an act of humanity to suspend the sentence. In addition, we have been told by counsel that the effect of having this appeal hanging over his head, has caused the defendant's eczema to deteriorate. We take the view that having regard to the principle of double jeopardy it would in any event now be wrong to direct an immediate sentence of imprisonment.

[81] Accordingly the sentence will be varied to a term of 2 years imprisonment suspended for 2 years. The period of disqualification will remain unaltered as will the order that when the period of disqualification has expired before he drives again the defendant must take an extended test.

Judgment accordingly.

end of selection