Curtis, R v

Deliberate use of a hand-held mobile telephone, including texting, while driving is unlawful and inherently distracting. Where it contributes to dangerous driving causing death, a custodial sentence is inevitable. The appropriate length remains fact-specific.

A material consideration is whether telephone use or texting occurred at impact, in the immediately preceding seconds, or earlier in the journey and may nevertheless have reduced the driver’s attention. Even where a sentence is lenient and arguably unduly lenient, an appellate court may decline to increase it after considering all the circumstances at the review stage.

The offender was convicted at the Crown Court at Oxford of causing death by dangerous driving after her car struck the rear of a stationary vehicle on an unlit dual carriageway. The deceased died from the collision.

During the journey the offender had made, received, read and sent numerous mobile telephone messages without stopping. Her calls had ended shortly before the collision, but she was not using the telephone at impact and had not opened a text received shortly beforehand. She was sentenced to 21 months’ imprisonment.

The Solicitor General sought leave under Criminal Justice Act 1988, section 36, to refer the sentence as unduly lenient. The central issue was whether the earlier mobile telephone use materially aggravated the dangerous driving and justified an increase in sentence.

1. Leave was granted, but no increase in sentence was ordered. The court held that the 21-month sentence was lenient and arguably unduly lenient. On reviewing all the circumstances, however, it declined to exercise its power to increase it.

2. Deliberately using a hand-held mobile telephone or texting while driving is dangerous because it distracts the driver from the full attention required for driving. It is a voluntary breach of safety legislation. When such conduct contributes to dangerous driving causing death, custody is inevitable.

3. The length of custody depends on the detailed facts, together with aggravating and mitigating features. A particularly important factual inquiry is whether the telephone use or texting was taking place at impact, within the immediately preceding seconds, or at an earlier stage but may still have contributed to inadequate attention to the road.

4. Here, the offender was not using her telephone at impact and had not responded to the text received shortly before it. The court nevertheless concluded that she would have been much less likely to have been distracted had she not used the telephone or texted during the journey. That conduct was therefore material to sentence.

5. The court also took account of the offender’s positive character, genuine remorse and insight, and the fact that she had received a release date before learning of the reference. Those matters, viewed with the whole case, meant that an increased sentence was not ordered.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, granted leave to review the sentence but declined to increase it.
• Crown Court at Oxford: The offender was convicted on 19 December 2008 of causing death by dangerous driving and was sentenced on 2 February 2009 to 21 months’ imprisonment.