Legrys, R v Malcolm

When deciding whether a sentence for causing death by dangerous driving should be suspended, the court should apply the guidance in Cooksley. Exceptional mitigating circumstances are not a separate legal test. The expression indicates that a non-custodial outcome will be justified only in a very small minority of cases.

Prison overcrowding should not be the basis for suspending such a sentence. Even where the appellate court considers that immediate custody should have been imposed, it will not vary a sentence unless it is unduly lenient.

The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the respondent's sentence for causing death by dangerous driving.

Following a trial at Lewes Crown Court, Malcolm Legrys received twelve months' imprisonment, suspended for two years with 200 hours' unpaid work. He was also disqualified from driving for two years and required to pass an extended driving test. The fatal collision occurred while he attempted to overtake a slow-moving convoy, including an unlit tractor and trailer.

The central issue was whether the suspension of the sentence made it unduly lenient.

1. The court granted leave for the Attorney General's reference but declined to vary the sentence. The sentence could not be described as unduly lenient. Even if it had been, the court would not have altered it because the respondent had almost completed the 200 hours of unpaid work.

2. A sentence of about twelve months' imprisonment was appropriate. The respondent's dangerous driving involved an error in underestimating the time needed to overtake. The court accepted that the sentencing judge could describe that error as momentary. It declined to characterise the driving as reckless in the sense that the respondent realised the risk to others and proceeded regardless.

3. The respondent's good character and driving record, genuine remorse, post-traumatic consequences, and the possible contribution of the unlit tractor and trailer to the deceased's inability to avoid the collision were substantial mitigation. There were no aggravating features.

4. The sentencing judge should have applied Cooksley [2004] 1 Cr App R (S) 1, rather than prison overcrowding, in deciding whether to suspend the sentence. The reference in Cooksley to exceptional mitigating circumstances does not create a legal test. It indicates that only a very small minority of cases justify a non-custodial outcome. On the facts, despite the powerful mitigation, immediate custody should have been imposed.

• Court of Appeal (Criminal Division): On the Attorney General's sentence reference, the court granted leave but did not vary the suspended sentence: [2007] EWCA Crim 1605.

• Lewes Crown Court: Following conviction after trial for causing death by dangerous driving, HHJ Kemp imposed twelve months' imprisonment suspended for two years, with 200 hours' unpaid work, a two-year driving disqualification, and an extended re-test requirement.