Bennett, R v

In sentencing for causing death by dangerous driving, the offence may properly fall within the most serious guideline level where substantial alcohol consumption caused gross impairment and the driver continued after clear physical indications of dangerous driving. The alcohol level may inform both categorisation and aggravation, provided it is not counted twice without recognising its distinct gravity.

Sentencing must nevertheless give full weight to substantial personal mitigation. In particular, an offender’s youth, genuine remorse for the death of a close friend, good character, limited driving experience, early acceptance of responsibility and positive progress in custody may significantly outweigh aggravating features and justify a lower starting point.

The appellant, aged 17 and newly qualified to drive, pleaded guilty at Worcester Crown Court to causing the death of his best friend by dangerous driving after driving while heavily intoxicated. Shortly before the fatal collision, his vehicle struck a traffic island and bollard, damaging a tyre, but he continued to drive.

On 17 October 2008, the Recorder sentenced him to five years and four months’ detention in a young offender institution, disqualified him for seven years and required an extended re-test. The Recorder treated the offence as Level 1 under the Sentencing Guidelines Council Definitive Guideline on causing death by driving, using an eight-year post-trial starting point.

The appeal challenged the treatment of aggravating matters and contended that the Recorder had insufficiently reflected the appellant’s age and personal mitigation.

1. The appeal was allowed to the extent of sentence. The court quashed the sentence of five years and four months’ detention and substituted four years’ detention, less one day spent on remand.

2. The Recorder had correctly categorised the offence as Level 1 under the Sentencing Guidelines Council Definitive Guideline on causing death by driving. The appellant had consumed nearly three times the legal alcohol limit. His collision with the traffic island and bollard, followed by his failure to stop, demonstrated the dangerous quality of his driving and could amount to an aggravating feature.

3. The Recorder was entitled to distinguish an alcohol level almost three times the legal limit from a lower, though still serious, level of intoxication. That assessment did not amount to impermissible double counting, because the Recorder had expressly avoided using the same feature twice without recognising its additional gravity. He was also entitled, to a limited extent, to take account of the recent fixed penalty for being drunk and disorderly.

4. However, the Recorder had treated the aggravating and mitigating factors as effectively cancelling each other out. That was excessive. The appellant’s age was the most significant mitigating feature. His genuine remorse for the death of his best friend, early frank acceptance of responsibility, good character, limited driving experience, loss of his intended career, and good conduct and progress in custody also carried substantial weight.

5. Those mitigating factors significantly outweighed the aggravating factors. The appropriate post-trial starting point was six years’ detention, which became four years after credit for the early guilty plea.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 591, allowed the appeal against sentence to the extent of substituting four years’ detention for five years and four months.

• Worcester Crown Court: The appellant pleaded guilty to causing death by dangerous driving and was sentenced on 17 October 2008 to five years and four months’ detention in a young offender institution, with driving disqualification and an extended re-test requirement.