Topasna, R. v

In sentencing for causing death by dangerous driving, culpability remains the dominant consideration where the offender did not intend death or injury. The number of deaths and injuries may nevertheless greatly aggravate the offence. A momentary driving error may amount to substantial culpability where it occurs while operating a large vehicle in a crowded area and its dangerous consequences persist.

Sentencing guidance assists but does not prescribe the outcome. A sentencing judge may place the offence in the category which the overall facts justify. On appeal, the material question is whether the sentence was manifestly excessive, not whether a different categorisation was also open.

The appellant pleaded guilty to five counts of causing death by dangerous driving. He had released the handbrake of an automatic double-decker bus while his foot was on the accelerator rather than the brake. Believing that the brake had failed, he continued to accelerate for about 16 seconds in a crowded area. Five people were killed and others were injured.

On 9 November 2005, Dame Heather Steel imposed concurrent sentences of five years’ imprisonment and disqualified him from driving for seven years. The appellant challenged only the custodial sentence. He contended that the judge had wrongly treated the offending as falling within the highest culpability category and that the sentence was excessive.

1. Appeal dismissed. The court held that the concurrent sentence of five years’ imprisonment was not manifestly excessive.

2. The initial pedal error was dangerous driving. Although the case lacked familiar aggravating features such as drink, excessive speed or a prior history of irresponsible driving, the appellant was driving a large bus through an exceptionally crowded pedestrian area. The error persisted while he accelerated over a substantial distance. The sentencing judge was entitled to treat the duration of the panic response as beyond that expected of a careful driver and to regard the appellant’s culpability as substantial.

3. The five deaths, serious injury to another victim and the danger to passengers and pedestrians were grave aggravating consequences. The court accepted that the case could arguably have been placed in the intermediate category with aggravating features. It was nevertheless also open to the judge to place it in the most serious category.

4. Cooksley [2003] EWCA Crim 996, [2004] 1 Cr App R(S) 1 supplied useful sentencing guidance but was not prescriptive. Its approach showed that multiple victims could justify a substantially higher sentence even within the intermediate category. In light of increased maximum sentences and the particular facts, a post-trial sentence of seven and a half years was not manifestly excessive under either categorisation. Full credit for the guilty plea reduced that figure to five years.

• Court of Appeal (Criminal Division) Dismissed the appellant’s sentence appeal.

• First-instance sentencing court On 9 November 2005, Dame Heather Steel imposed concurrent sentences of five years’ imprisonment for five counts of causing death by dangerous driving, with a seven-year driving disqualification.