Sims, R v

Driving despite repeated, competent medical advice not to drive pending investigation of a condition capable of causing an epileptic blackout may, on the facts, fall within level 1 of the Sentencing Guidelines Council’s guidance for causing death by dangerous driving. The decisive feature may be a deliberate and persistent disregard of warnings given to prevent loss of control of a vehicle, rather than the manner in which the vehicle was driven immediately before the collision. A sentencing judge is entitled to treat such conduct as flagrant disregard for the rules of the road where the warnings and the risk were clear. A sentence at the level 1 starting point and within its range will not be manifestly excessive on those findings.

The applicant was convicted after trial at the Crown Court at Basildon of causing death by dangerous driving. He drove onto a pedestrian refuge, causing a traffic-sign pole to strike and fatally injure a pedestrian.

The sentencing judge imposed eight years’ imprisonment, disqualified him from driving for ten years, and required an extended re-test. The judge classified the offending as level 1 under the Sentencing Guidelines Council’s Definitive Guidance, relying on findings that the applicant had repeatedly been told by medical professionals not to drive while possible epileptic episodes were investigated.

On a renewed application for permission to appeal sentence, the central issue was whether that medical-history evidence could properly place the offending in the most serious level of culpability.

1. The renewed application for permission to appeal sentence was dismissed. The sentencing judge had been entitled to classify the offending as level 1, and the eight-year sentence was neither outside the applicable range nor manifestly excessive.

2. Level 1 covers the most serious offending, including driving involving a deliberate decision to ignore, or flagrant disregard for, the rules of the road. A driver need not have driven dangerously in the sense of deliberately mishandling the vehicle immediately before the collision for that level to be available.

3. Where a person with an undiagnosed condition is repeatedly and competently advised not to drive until investigation and any treatment are complete, driving in defiance of that advice is capable of amounting to level 1 conduct. The advice must make clear that driving creates a risk of an epileptic blackout and danger to the public.

4. The court stressed that a medical condition by itself does not automatically require level 1 classification. Here, however, the judge had found a deliberate and persistent disregard of medical advice, including advice given shortly before the fatal collision. The warnings existed to prevent precisely the loss of control that occurred.

5. The comparative sentencing references to R v Akinyeme [2007] EWCA Crim 3290 and R v Colliss [2006] EWCA Crim 206 did not undermine that conclusion. On the judge’s findings, the level 1 starting point of eight years was properly applied after trial.

• Court of Appeal (Criminal Division): renewed application for permission to appeal sentence dismissed.
• Crown Court at Basildon: the applicant was convicted after trial of causing death by dangerous driving and sentenced to eight years’ imprisonment, with a ten-year driving disqualification and an extended re-test requirement.