Wilson, R v

In sentencing for causing death by dangerous driving, the court must assess the offender’s culpability by reference to the quality of the driving and the foreseeable danger it created, while treating deaths and injuries as aggravating harm in accordance with the sentencing guideline. Driving whilst knowingly deprived of sleep or rest will ordinarily fall within the lowest seriousness level, but multiple deaths and serious injury may justify moving the case into a higher band.

It may aggravate the offence that a driver’s unfitness to drive was obvious. That requires more than an inference that the driver must have realised, before setting off, that they were unfit. A driver who becomes aware of approaching sleep must stop.

The appellant fell asleep while driving a minibus home from the Notting Hill Carnival after prolonged wakefulness. The vehicle mounted the pavement and struck five pedestrians. Two died, one suffered permanent leg injury, and two others were injured.

At the Crown Court, the appellant pleaded guilty to two counts of causing death by dangerous driving and one count of dangerous driving. She received concurrent sentences of five years’ imprisonment for the death counts and one year for dangerous driving. She appealed against sentence.

The central questions were the appropriate seriousness level under the sentencing guideline, whether the judge had double-counted the appellant’s exhaustion as aggravation, and the proper sentence after mitigation.

1. Appeal allowed. The concurrent five-year sentences for causing death by dangerous driving were set aside and replaced by concurrent sentences of three years’ imprisonment. The concurrent one-year sentence for dangerous driving remained unchanged.

2. Under the sentencing guideline, to which the court must have regard under section 172 of the Criminal Justice Act 2003, culpability is assessed principally by the quality of the driving and the foreseeable danger created. Knowingly driving while deprived of sleep or rest is a characteristic generally falling within level 3.

3. This was nevertheless a level 2 case. The two deaths, the injuries to three further pedestrians, and the permanent injury to one of them increased the harm sufficiently to move the offence from level 3 into level 2.

4. It can aggravate an offence that it was obvious that the defendant was in no fit state to drive. However, the evidence did not show that the appellant consciously appreciated before setting off that she was unfit. She should have appreciated as sleep approached that she had to stop.

5. The sentencing judge’s starting point was substantially too high. The appellant’s good character, unblemished driving record and personal mitigation justified a sentence in the order of three and a half years. The importance of avoiding separation from her new baby made three years the appropriate sentence.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted concurrent three-year sentences for the two counts of causing death by dangerous driving.
• Crown Court: On 9 November 2009, imposed concurrent sentences of five years’ imprisonment for two counts of causing death by dangerous driving and one year for dangerous driving.