Attorney General's Reference No 74 of 2005

In sentencing for causing death by dangerous driving, culpability rather than the fatal outcome is the dominant consideration. An immediate custodial sentence of 12 to 18 months will generally be required even without aggravating circumstances. Departure from that course requires exceptional mitigating features.

Exceptionality is a fact-sensitive assessment. The deceased's conduct may properly be considered where it materially affected the offender's culpability. A suspended sentence is not unduly lenient where exceptionally low culpability, arising from the circumstances of the offence, is combined with other substantial mitigation and justifies that conclusion.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient an 18-month sentence, suspended for two years, imposed for causing death by dangerous driving.

The offender, a part-time taxi driver of previous good character, drove into a pedestrian who had been behaving unpredictably in the road while apparently intoxicated. Other drivers had avoided the pedestrian, but the offender braked only shortly before impact. The offender lost his taxi employment, expressed remorse and suffered depression after the incident.

The central issue was whether the trial judge had been entitled to treat the combination of exceptionally low culpability and mitigation as sufficient to justify a suspended sentence.

1. Leave was granted for the reference, but the court held that the sentence was not unduly lenient. The 18-month sentence suspended for two years would stand.

2. The court applied the guideline in Cooksley [2004] 1 Cr App R(S) 1. Culpability, rather than outcome, determines where an offence falls on the scale of seriousness. In the ordinary case, even without aggravating features, an immediate custodial sentence with a starting point of 12 to 18 months is generally necessary. Only exceptional mitigating features can justify avoiding custody.

3. The trial judge had to sentence on the basis of the jury's verdict that the driving was dangerous, notwithstanding his personal disagreement with that verdict. However, the offender's culpability could not realistically be assessed without taking account of the deceased's deliberate and unpredictable conduct in moving into the path of traffic.

4. The court recognised that this was a borderline conclusion and might not itself have described the case as exceptional. Nevertheless, the deceased's conduct, the very low level of culpability, and the offender's personal mitigation together just made the case exceptional. The suspended sentence was therefore justified.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 3120, the court granted leave for a reference under section 36 of the Criminal Justice Act 1988, but held that the sentence was not unduly lenient and left it undisturbed.

• Leicester Crown Court: Following conviction for causing death by dangerous driving, Judge Morrell imposed 18 months' imprisonment suspended for two years, disqualified the offender from driving for two years, required an extended re-test, and ordered a contribution to prosecution costs.