Carswell, R. v

For sentencing dangerous driving, the court should apply the guideline level that reflects the actual degree of risk and culpability. A lawful hands-free telephone call may be an avoidable distraction, but it is not necessarily a gross avoidable distraction placing the offence in the more serious level.

Where there is no aggravating feature or reason to depart from the guideline, the recommended starting point should be reduced to reflect a guilty plea, genuine remorse and previous good character.

The appellant pleaded guilty at Guildford Crown Court to causing death by dangerous driving after his lorry struck a stationary queue of traffic. He was speaking on a lawful hands-free work telephone call and did not see the queue until it was too late. The collision caused the death of the driver of a car ahead.

He received four years’ imprisonment, a five-year driving disqualification and an extended re-test requirement. With leave of the single judge, he appealed against sentence. The issue was whether the sentencing judge had correctly applied the dangerous-driving sentencing guideline and properly allowed for mitigation.

1. Appeal allowed against sentence. The four-year sentence was inconsistent with the applicable dangerous-driving guideline.
2. The appellant’s driving created a significant risk of danger because he failed to anticipate and identify a stationary queue in time. That placed the offence at level 3, for which the guideline starting point was three years and the range was two to five years.
3. Level 2 required a substantial risk of danger and was commonly marked by matters such as grossly excessive speed, gross avoidable distraction, or impairment through drink or drugs. The appellant was travelling at about the lorry speed limit. His lawful hands-free telephone call was avoidable as a distraction, but was not a gross avoidable distraction.
4. There was no aggravating factor, or other reason, justifying departure above the three-year starting point. The guilty plea, genuine remorse, good driving and employment records, lack of convictions, and the appellant’s post-traumatic stress disorder justified a reduction.
5. The court substituted two years’ imprisonment. It also reduced the disqualification from five years to three years. The requirement to take an extended driving test remained.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted two years’ imprisonment with a three-year driving disqualification.
• Crown Court at Guildford: On 21 April 2009, following a guilty plea to causing death by dangerous driving, imposed four years’ imprisonment, a five-year disqualification and an extended re-test requirement.