Pearson, R v

In sentencing for causing death by dangerous driving, personal mitigation must be weighed against the offender’s culpability. The mitigating effect of the offender’s injuries, or of a close personal or family relationship with the victim, diminishes as the offender’s fault increases. Where the driving displays the highest culpability, such mitigation may carry limited weight.

A victim’s family may properly be heard, but a request for either leniency or severity cannot determine the proper sentence. A sentence which gives excessive weight to mitigation in the face of exceptionally grave and prolonged dangerous driving is unduly lenient.

The Solicitor General sought leave under Criminal Justice Act 1988, section 36, to refer as unduly lenient the sentence imposed on Daltery Roger Pearson at Newcastle Crown Court.

Pearson had pleaded guilty to causing death by dangerous driving and associated driving offences. While disqualified, uninsured and substantially over the alcohol limit, he drove dangerously for several miles before losing control of his car. His passenger and close friend died. The Crown Court imposed five years’ imprisonment for causing death by dangerous driving.

The central issue was whether that sentence gave excessive weight to personal mitigation despite the offender’s exceptionally high culpability.

1. The Attorney General’s Reference was allowed. The court granted leave under section 36 of the Criminal Justice Act 1988, held that the sentence of five years’ imprisonment was seriously unduly lenient, and substituted a sentence of ten years’ imprisonment for causing death by dangerous driving.

2. The offending represented the highest level of criminal culpability. Pearson was a disqualified driver who had never held a valid licence and had no insurance. He drove after consuming more than twice the permitted blood-alcohol level, over a prolonged distance, at speed and in an aggressively dangerous manner. He had relevant convictions for dangerous driving, drink-driving and driving while disqualified. Numerous road users were exposed to a real risk of death or serious injury.

3. The court accepted the guilty plea, the offender’s own serious injury, the wider family tragedy, and the grave condition of his child. It also noted the deceased’s fiancée’s request for leniency. However, a plea for leniency, like one for severity, cannot influence the proper sentencing decision. The effect of an offender’s injury and of a close relationship with a victim must bear a direct relationship to culpability: the greater the fault, the less weight those matters carry in mitigation.

4. The sentencing judge had allowed the personal mitigation to weigh far too heavily against the offender’s culpability. In the circumstances, no sentence below ten years’ imprisonment was appropriate.

• Court of Appeal (Criminal Division) — in [2008] EWCA Crim 3135, granted leave under section 36 of the Criminal Justice Act 1988, held the sentence seriously unduly lenient, and substituted ten years’ imprisonment.
• Newcastle Crown Court — on 3 October 2008, imposed five years’ imprisonment for causing death by dangerous driving, with concurrent sentences for driving while disqualified and driving with excess alcohol.