Bowyer, R v

For sentencing for causing death by dangerous driving, competitive and aggressive racing over several miles may justify a sentence near the top of the Level 2 range where the conduct comes close to the boundary with Level 1. An appellate court will ordinarily respect the sentencing judge’s assessment of driving proved at trial, particularly where it rests on that judge’s evaluation of witnesses. A driving disqualification remains separately reviewable and may be reduced where its length is excessive in the circumstances.

The applicant was convicted at Salisbury Crown Court of causing death by dangerous driving after participating in aggressive and competitive driving with another motorist over about 4.7 miles. The other motorist collided with an oncoming vehicle, causing the deaths of both drivers.

He received six-and-a-half years’ imprisonment and a seven-year driving disqualification. After a single judge had refused leave, he sought an extension of time and renewed his application to appeal sentence. He contended that the custodial sentence was manifestly excessive and that the disqualification was too long.

1. The court granted an extension of time, refused leave to appeal the custodial sentence, but granted leave and allowed the appeal against the driving disqualification. The seven-year disqualification was quashed and replaced with a five-year disqualification.

2. The competitive and aggressive driving, at excessive speed and over a substantial distance, was a serious aggravating feature. The sentencing judge had described the driving after hearing the evidence at trial. The Court of Appeal should respect that assessment and saw no real prospect of dislodging it by revisiting the witness evidence.

3. The case fell within Level 2 of the Sentencing Guidelines Council guidance for causing death by dangerous driving. Level 2 includes driving creating a substantial risk of danger, such as greatly excessive speed or racing or competitive driving. Its range was four to seven years’ custody, with a five-year starting point.

4. In considering where within that range the case fell, it was relevant to consider the scope of Level 1. Although the sentencing judge had not treated the offence as Level 1, the prolonged competitive and aggressive driving came close to the boundary between the two levels. A sentence towards the upper end of the Level 2 range was therefore justified. The six-and-a-half-year custodial term was not manifestly excessive.

5. The applicant’s driving record and the circumstances of the offence gave force to the submission that seven years’ disqualification was too long. The appropriate period was five years.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1112, an extension of time was granted. Leave to appeal the custodial sentence was refused. Leave to appeal the disqualification was granted and that appeal was allowed, with a five-year disqualification substituted.
• Salisbury Crown Court: The applicant was convicted on 17 October 2008 of causing death by dangerous driving and, on 14 November 2008, was sentenced to six-and-a-half years’ imprisonment and disqualified from driving for seven years.