Attorney General's Reference No. 158 of 2004

In sentencing for death by dangerous driving, the court must select the appropriate culpability category under R v Cooksley [2004] 1 Cr App R(S) 1 and must not double count aggravating features which form part of the same culpability feature. A professional driver who knowingly drives while deprived of adequate sleep or rest, and whose driving shows the effects of that deprivation before the collision, falls within the higher-culpability category.

A guilty plea attracts less mitigation where the offender challenges the prosecution’s factual basis and accepts the full extent of culpability only shortly before the hearing.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient an 18-month sentence imposed at Bristol Crown Court for death by dangerous driving.

The offender, a lorry driver, fell asleep while driving a heavy goods vehicle after inadequate sleep. His vehicle crossed into the path of Emma Kelly’s car, killing her instantly. He had also exceeded the applicable speed limit and used a mobile telephone during the day.

The sentencing judge placed the offending in the intermediate category under R v Cooksley [2004] 1 Cr App R(S) 1. The central issue was whether that categorisation, and therefore the 18-month sentence, was unduly lenient.

1. The court granted leave and held that the 18-month sentence was unduly lenient. It quashed that sentence and substituted three years’ imprisonment. The three-year driving disqualification and requirement to pass an extended driving test remained unchanged.

2. The judge had placed the offending in the wrong R v Cooksley [2004] 1 Cr App R(S) 1 category. The proper starting point was higher culpability, not intermediate seriousness. The offender knowingly drove while deprived of adequate sleep and rest. He should also have appreciated the effect of that deprivation from his manner of driving before the collision.

3. The court accepted that aggravating features which are integral to the same culpability feature must not be double counted. The matters relied upon as separate aggravating features were subsumed in the feature of driving while knowingly deprived of adequate sleep or rest. That feature nevertheless placed the case in the higher-culpability bracket, for which the guideline range was four to five years after a trial.

4. The guilty plea warranted mitigation, but not the full allowance available to an offender who accepts the prosecution’s factual basis from the outset. Applying the approach indicated by R v Last and Others [2005] EWCA Crim 106, the offender’s earlier challenge to the factual basis reduced the credit available. Taking account of mitigation, including good character, remorse, impaired health, delay and the double-jeopardy principle, the appropriate sentence on the reference was three years.

• Court of Appeal (Criminal Division): Granted leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient, quashed the 18-month term and substituted three years’ imprisonment.
• Bristol Crown Court: On 6 December 2004 imposed 18 months’ imprisonment for death by dangerous driving, with a three-year driving disqualification and an extended driving test requirement.