Foster, R v

For causing death by dangerous driving, a sentencing court may depart below the starting point for the lowest dangerous-driving category where the driving is markedly less culpable than conduct ordinarily within that category. It may instead use the starting point for the most serious category of causing death by careless driving.

The court must have regard to the definitive sentencing guideline, but it is not required to apply it rigidly. Genuine remorse, good character, a good driving record and other personal mitigation may justify a further reduction. Where the resulting term permits suspension, mercy may properly justify suspension if further immediate custody would serve no purpose.

The appellant was convicted of causing death by dangerous driving after his car crossed onto the wrong side of the road and collided head-on with a motorcyclist, who died from his injuries. He received 18 months’ custody and a driving disqualification; only the custodial sentence was challenged.

The jury rejected the appellant’s account that he had blacked out. The trial judge nevertheless accepted that he genuinely believed that explanation and found that the collision resulted from a momentary distraction. The appellant had just left hospital with his seriously ill wife after distressing discussions about her treatment.

The appeal concerned the proper application of the definitive guideline for offences of causing death by dangerous driving and whether the custodial term should be reduced and suspended.

1. Appeal allowed. Andrew Smith J, giving the court’s judgment, reduced the sentence from 18 months’ imprisonment to 12 months and suspended it for two years. A 12-month supervision requirement was to be imposed, subject to any observations by counsel.

2. The jury’s verdict established that the appellant’s driving had fallen far below the standard of a competent and careful driver and had been dangerous. That verdict had to be respected. However, the dangerous driving consisted of inattention for only a very short period, and the court considered it difficult to envisage dangerous driving of lower culpability.

3. The court accepted that the offence fell within the guideline’s lowest category, namely driving creating a significant risk of danger. Although avoidable distraction was an identified feature of that category, the guideline expressly contemplated cases in which the driving was markedly less culpable than that category ordinarily envisaged.

4. This was such a case. The appellant’s emotional state following the hospital visit made him susceptible to distraction. His lack of previous convictions, good driving record, genuine remorse and other personal mitigation warranted using the 15-month starting point applicable to the most serious level of causing death by careless driving, and then reducing it to 12 months.

5. Suspension became legally available once the term was reduced to 12 months. Despite the grave and tragic consequences of the offence, no purpose would be served by requiring further immediate custody after the appellant had already served nearly three months. The definitive guideline had to be regarded, but did not compel sentencing by rigid rules.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence. The custodial term imposed following conviction was reduced from 18 months to 12 months and suspended for two years.
• Crown Court: On 23 December 2008, the appellant was convicted of causing death by dangerous driving. On 17 February 2009, he was sentenced to 18 months’ custody and disqualified from driving.