Attorney-General's Reference No 16 of 2008

A sentence for causing death by dangerous driving must reflect the offender’s actual culpability. Dangerous overtaking may amount to a grave error of judgment without being reckless where the offender did not appreciate that the manoeuvre might result in a serious accident.

The sentencing court should place the driving within the applicable culpability categories and consider relevant aggravating and mitigating features. A sentence may be lenient without being unduly lenient. Where the proper sentence is only modestly higher, the Court of Appeal may decline to interfere after allowing for double jeopardy.

The Solicitor General referred, under section 36 of the Criminal Justice Act 1988, a 14-month sentence imposed on Richard Smith for causing death by dangerous driving. Smith also sought permission to appeal his sentence.

Smith had attempted to overtake a line of vehicles on a busy, undulating single-carriageway road. He lost control while trying to avoid oncoming traffic. His vehicle collided with another car, causing the driver’s death and serious injury to the driver’s wife. The sentencing judge treated the driving as a very serious error of judgment and imposed immediate custody.

The issues were whether the sentence was unduly lenient and whether it should instead have been suspended.

1. The court granted leave on the Attorney General’s reference but did not interfere with the 14-month sentence. It refused the offender permission to appeal.

2. The driving was dangerous, but it was not properly characterised as reckless. The court could not be sure that, when beginning the overtaking manoeuvre, the offender appreciated that it might well cause a serious accident. He believed it was safe to overtake, but made a grave error of judgment. He failed to allow for his car’s limited power, its passengers and load, and the upward incline.

3. The court applied the sentencing categories in Cooksley [2003] EWCA Crim 996. This was not a prolonged, persistent and deliberate course of very bad driving. However, the offender continued dangerous driving for about ten seconds after he could have pulled back, and the serious injury to the deceased’s wife aggravated the offence. The judge was entitled to place the case at the top of the lowest culpability bracket or at, or towards, the bottom of the intermediate bracket.

4. Applying Richardson [2006] EWCA Crim 3186, the appropriate post-trial sentence was about two to two and a half years. Remorse, positive good character and the guilty plea reduced that figure to 14 months. The sentence was lenient, but not unduly lenient. Taking double jeopardy into account, it would have been wrong to increase it.

5. A suspended sentence was not appropriate. The case did not fall within the small category in which custody could properly be suspended.

• Court of Appeal (Criminal Division) — on an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held that the sentence was lenient but not unduly lenient and declined to vary it. The offender’s application for permission to appeal was refused.
• Sentencing court — His Honour Judge Machin imposed 14 months’ imprisonment for causing death by dangerous driving.