Clarke, R v

In sentencing for causing death by dangerous driving, culpability must be assessed by reference to the offender’s actual awareness of a medical impairment. A conscious failure to stop driving will ordinarily be seriously aggravating. However, where awareness was brief or momentary and the offender had otherwise managed the condition responsibly, culpability may fall substantially below the usual sentencing range.

The court must also give proper weight to the exceptional effect of custody on serious medical treatment and to delay not attributable to the offender. These factors may justify a substantial reduction, although the gravity of the offence can still require an immediate custodial sentence.

Clarke, who had type 1 diabetes, suffered a hypoglycaemic attack while driving in Birmingham. His vehicle struck two boys on a footpath. One child later died. He was convicted at the Crown Court at Birmingham of causing death by dangerous driving and was sentenced to three years’ imprisonment and disqualified from driving for life.

On his sentence appeal, the parties agreed that the case should be approached on the factual basis most favourable to him that was consistent with the conviction. He had managed his diabetes carefully, but had briefly been aware of the onset of an attack before entering a period of hypoglycaemic unawareness. The appeal concerned the resulting degree of culpability, the effect of imprisonment upon his treatment and health, and delay before sentence.

Disposition

1. The appeal against sentence was allowed. The sentence of three years’ imprisonment was quashed and replaced with one year’s imprisonment. The life disqualification was not challenged.
2. The conviction required the court to proceed on the basis that Clarke had consciously failed to stop driving during a second phase of his deteriorating condition. The sentencing judge’s reference to what he should have known was a slip. Culpability depended upon actual awareness, because mere constructive awareness would not have established the offence.
3. Ordinarily, knowingly driving while a medical condition significantly impairs driving ability places an offender in a higher culpability category. That conclusion followed from Cooksley [2004] 1 Cr. App. R. (S.) 1, Richardson [2007] 2 Cr. App. R. (S.) 36, and the sentencing guidelines. Here, however, the period of awareness could have been momentary. Clarke had otherwise managed his diabetes responsibly and there was no reckless disregard of the regime for his illness. Those factors significantly reduced culpability below the ordinary range.
4. Custody would be materially more onerous because of the serious risks created by hypoglycaemic unawareness and the practical difficulties of receiving an islet-cell transplant and intensive follow-up while imprisoned. The court accepted that the prison authorities would facilitate treatment, but the medical consequences remained substantial mitigation.
5. The delay of two years and eight months between the accident and sentence, through no fault of Clarke, also counted in his favour. The offence was nevertheless too serious for a suspended sentence.

• Court of Appeal (Criminal Division) In [2009] EWCA Crim 921, allowed the sentence appeal, quashed the three-year sentence, and substituted one year’s imprisonment.
• Crown Court at Birmingham Convicted Clarke of causing death by dangerous driving on 19 August 2008 and sentenced him on 19 December 2008 to three years’ imprisonment with a life driving disqualification.