Shepherd, R v

A guideline sentencing range normally supplies the provisional sentence, but a court may depart from it where the particular circumstances justify doing so. In causing-death-by-careless-driving cases, the court must assess the quality of the driving as a whole and the foreseeable danger it created.

A guilty plea does not invariably attract the full one-third reduction. Although avoiding a trial is important, the extent of credit also depends on whether the defendant had any realistic alternative to pleading guilty. Sentencing must remain faithful to the offence charged and must leave proper weight for mitigation and for aggravating features not present.

The appellant pleaded guilty at Truro Crown Court to causing death by driving without due care and attention after losing control of his car on a bend and colliding with an oncoming vehicle, killing its driver. He had passed his driving test six days earlier. The evidence showed excessive speed, hard braking and driving described as showing off.

HHJ Cottle sentenced him to four years’ detention in a Young Offender Institution, disqualified him for five years and required an extended retest. The appellant challenged the sentence as exceeding the definitive guideline’s upper range and as allowing insufficient credit for his early guilty plea.

1. Appeal allowed. The sentence of four years’ detention was reduced to three years. The driving disqualification was reduced from five years to four years. The extended-retest order remained in force.

2. The appellant’s driving fell within the highest guideline category: careless or inconsiderate driving falling not far short of dangerous driving. The court was entitled to treat the driving as exceptionally serious. The guideline range of 36 weeks to three years’ custody normally provides the provisional sentence, but particular circumstances may justify a sentence outside it. A sentence up to the five-year statutory maximum may be appropriate after a contested trial in an exceptional case.

3. The sentencing judge had correctly evaluated the quality of the driving and the foreseeable danger it created. The evidence of excessive speed, loss of control and the appellant’s conduct shortly before the collision justified a sentence above the guideline range.

4. The judge was also entitled to allow less than the full one-third credit for the guilty plea. Avoidance of a trial is an important reason for credit, but does not determine its extent. On the charge actually brought, the evidence was overwhelming and the appellant had no realistic alternative to pleading guilty. R v Lord [2009] 1 Criminal Appeal Reports (S) 44 did not require a different result because that case included a disputed issue of unfitness through drugs.

5. However, the judge had been unduly influenced by the view that the appellant ought to have faced the more serious charge of causing death by dangerous driving. A sentencing judge must remain faithful to the offence charged. Treating five years as the notional post-trial sentence left insufficient room for cases with further aggravation or relevant previous convictions, and gave inadequate effect to the appellant’s youth and previous good character. The proper post-trial sentence was four years, reduced to three years for the plea.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted three years’ detention, with a four-year driving disqualification: [2010] EWCA Crim 46.
• Crown Court at Truro: HHJ Cottle imposed four years’ detention in a Young Offender Institution, a five-year driving disqualification and an extended-retest requirement.