Duffield, R v

A sentence is not unduly lenient merely because it is merciful. A reference under Criminal Justice Act 1988, section 36 fails where, after proper allowance for aggravating and mitigating circumstances, the sentence remains within the range properly open to the sentencing judge.

The reviewing court must assess the sentence on the factual basis properly accepted by the prosecution. It cannot treat an earlier act, including the use of a mobile telephone, as aggravating on the footing that it caused the death when the agreed basis of plea excludes that causal connection.

The offender pleaded guilty at Lincoln Crown Court to causing death by dangerous driving after his car struck and killed a cyclist. He had sent a text message while driving shortly before the collision, but the prosecution accepted a basis of plea that this earlier use of the telephone had no direct causal effect on the accident. The admitted dangerous driving consisted of his failure to concentrate on the road ahead.

The sentencing judge imposed, after correction under the slip rule, 12 months’ detention in a young offender institution. The Solicitor General applied under section 36 of the Criminal Justice Act 1988 for the sentence to be reviewed as unduly lenient. The central question was whether the sentence fell outside the proper sentencing range on the accepted factual basis.

1. The application was refused. The 12-month detention sentence was merciful, but it was within the range properly available to the sentencing judge after all aggravating and mitigating circumstances had been considered.

2. The court had to proceed on the prosecution’s accepted basis of plea. Although the offender had sent a text message while driving shortly before the collision, that basis excluded any direct causal effect of the telephone use on the accident. The court could not therefore sentence on the contrary footing that the texting caused the death.

3. The offender’s failure to concentrate on the road ahead constituted the dangerous driving which caused the cyclist’s death. The cyclist bore no responsibility for the collision. However, the court also took account of the offender’s positive good character, genuine remorse, youth, assistance at the scene, and eventual guilty plea.

4. The sentencing judge had assessed an 18-month detention sentence as appropriate before credit for the guilty plea and had properly reduced it for that plea. The Court of Appeal held that this assessment, viewed on the accepted facts and with the mitigating matters, did not produce an unduly lenient sentence. The sentence consequently remained undisturbed.

• Court of Appeal (Criminal Division): The Solicitor General’s application under section 36 of the Criminal Justice Act 1988 was refused. The sentence was held to be within the proper range.

• Crown Court at Lincoln: The offender pleaded guilty to causing death by dangerous driving. On 2 February 2009, amended under the slip rule on 25 February 2009, he was sentenced to 12 months’ detention in a young offender institution.