Petherick, R. v

Sentencing a defendant to imprisonment engages the article 8 family-life rights of both the defendant and affected family members, including dependent children. The court must ask whether there is an interference, whether it is lawful and pursues a legitimate aim, and whether it is proportionate.

The impact on children is a relevant mitigating consideration. It may make custody disproportionate where the case is on the cusp of custody, or may justify a reduction in sentence. There is no standard reduction: the weight of the factor depends on the facts, and its capacity to affect the outcome diminishes as the seriousness of the offence increases.

The appellant pleaded guilty to causing death by dangerous driving and driving with excess alcohol. While intoxicated, she drove at least 60 mph in a 30 mph urban high street, overtook vehicles recklessly and collided with a bus. One passenger died and another was seriously injured.

Judge Bing imposed a total sentence of four years and nine months' imprisonment. The appellant, a young sole mother, challenged the sentence principally by reference to her remorse, personal mitigation and the effect of imprisonment upon her infant son and their family life under article 8.

The appeal raised the proper significance of the interests and family life of dependent children when a criminal court determines a custodial sentence and its length.

1. The appeal was allowed to a limited extent. The court substituted a sentence of three years and 10 months' imprisonment for four years and nine months.

2. A custodial sentence ordinarily interferes with the family life of the offender and family members, including dependent children and, in an appropriate case, adults for whom the offender cares. Applying the approach stated in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, the court must ask whether there is an interference with family life; whether it is lawful and pursues a legitimate aim within article 8.2; and whether it is proportionate. In sentencing, the first two questions will usually be straightforward. The third requires the evaluative balance.

3. The court must be informed of relevant domestic circumstances and take account of the impact upon affected family members. The countervailing purposes include punishment, just deserts, deterrence, consistency between comparable offenders, and the interests of victims and their families. The effect on an innocent child may tip the balance where custody is otherwise marginal. Where custody remains necessary, it may justify mitigation of length, but no percentage or conventional adjustment is available.

4. The prospect that imprisonment will be disproportionate because of its family impact diminishes as the offence becomes more serious. It was unnecessary to decide whether article 3 of the United Nation's Convention on the Rights of Children or article 24.2 of the European Union Charter of Fundamental Rights applies to adult sentencing. Even on that assumption, the article 8 proportionality balance was the effective sentencing test.

5. The offence was a serious example of motor homicide, and a substantial custodial term was unavoidable. The starting point of eight years after a contested trial was correct, and there was no double counting of alcohol. However, the court gave greater effect to the appellant's youth, remorse, good character and the severe consequences for her relationship with her son. After the guilty-plea reduction, a further reduction of 18 months produced the substituted sentence.

• Court of Appeal (Criminal Division) Allowed the sentencing appeal to the limited extent of substituting three years and 10 months' imprisonment: [2012] EWCA Crim 2214.
• Crown Court Judge Bing sentenced the appellant, following guilty pleas, to four years and nine months' imprisonment for causing death by dangerous driving and driving with excess alcohol.