Airey, Attorney-General's Reference No 61 of 2009

In assessing an unduly lenient sentence for causing death by dangerous driving, the court should identify the applicable guideline level and its sentencing range. Greatly excessive speed and competitive racing ordinarily fall within level 2, subject to the fairness of the sentencing basis adopted below. Alcohol consumption, injury to another road user and leaving to avoid detection are serious aggravating features. A victim’s participation in racing provides limited mitigation where the offender incited the competition. Conduct separately punished as perverting the course of justice must not be punished twice, although it may demonstrate the offender’s attitude. The court may reduce the extent of an increase to reflect the impact of resentencing and the offender’s subsequent progress in custody.

The Attorney General referred the offender’s sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. Following a trial at Leeds Crown Court, the offender was convicted of causing death by dangerous driving after racing a friend’s vehicle on public roads. The friend was killed when his vehicle collided with an oncoming bus. The bus driver sustained serious injuries.

The Recorder imposed four and a half years’ imprisonment for causing death by dangerous driving, with a consecutive six-month sentence for perverting the course of justice. The offender had left the scene and repeatedly misled the police about his involvement. The central issue was whether the principal sentence was unduly lenient and, if so, what substituted sentence was appropriate.

1. The court granted permission and allowed the Attorney General’s reference. The sentence of four and a half years’ imprisonment for causing death by dangerous driving was unduly lenient.

2. The deliberate and persistent racing created grave danger. Although the driving could have fallen within guideline level 1, fairness required the court to proceed on the level 2 basis apparently accepted at sentence. Level 2 includes greatly excessive speed and competitive racing, and has a starting point of five years’ custody with a range of four to seven years.

3. The offence was aggravated by alcohol consumption, serious injury to the bus driver, and the offender’s departure in an attempt to avoid detection. The deceased’s contribution to his own death carried little mitigating weight because the vice of competitive driving was that it encouraged the other driver to participate. The court also avoided punishing the offender twice for leaving the scene, since that conduct had separately been punished as perverting the course of justice.

4. The sentencing comparisons in R v Kibble [2009] 2 Cr App R(S) Case No 93, 616 and R v Bowyer [2009] EWCA Crim 112, together with the guideline, confirmed that the original term was too low. A sentence around eight years would have reflected the gravity of the driving.

5. When fixing the substituted term, the court gave weight to the impact of a substantial increase on a prisoner already serving sentence and to the offender’s reported progress in custody. It substituted six and a half years’ imprisonment for causing death by dangerous driving, left the consecutive six-month sentence in place, and imposed a total of seven years’ imprisonment. The sentence ran from the date of the Recorder’s sentence.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court allowed the reference and increased the total sentence to seven years’ imprisonment: [2009] EWCA Crim 2561.

• Leeds Crown Court: The offender was convicted after trial of causing death by dangerous driving and sentenced on 30 June 2009 to four and a half years’ imprisonment for that offence, with a consecutive six-month sentence for perverting the course of justice.