Stewart, Re

For causing death by dangerous driving, the level 1 sentencing category applies where a driver deliberately ignores safety rules and thereby shows flagrant disregard for the serious danger to others. A prolonged course of such driving may warrant level 1 even where it lies near the boundary with level 2. The sentencing judge must independently evaluate the proper guideline category. A prosecutorial concession on category is an evaluative judgment, not a fact, and does not bind the sentencing judge or the Attorney General or Solicitor General on an unduly lenient sentence reference. Any departure from it in the final reference should be clearly identified and justified.

The offender was convicted after trial at the Crown Court at Preston of causing death by dangerous driving. He had driven a heavy goods vehicle after failing to secure its crane and an outrigger arm. The arm struck a pedestrian, causing fatal injuries. The trial judge imposed four years and six months’ imprisonment and a driving disqualification.

On a reference on behalf of the Solicitor General, the court considered whether the sentence was unduly lenient because the offending should have been categorised as level 1, rather than level 2, under the guideline for causing death by driving. It also considered the significance of the prosecution’s earlier concession as to the appropriate category.

1. The court allowed the reference. It quashed the sentence of four years and six months’ imprisonment and substituted a sentence of seven years’ imprisonment.

2. Level 1 under the causing-death-by-driving guideline covers driving involving a deliberate decision to ignore road-safety rules, flagrant disregard for those rules, and apparent disregard for the great danger caused to others. The court held that the trial judge’s findings established that level. The offender knowingly failed to secure the crane and outrigger mechanisms, drove a heavy goods vehicle in that state to save time and inconvenience, and then failed to respond to obvious indications of danger. This was a prolonged course of dangerous driving which foreseeably resulted in death.

3. The case could properly be placed towards the bottom of level 1 and near the boundary with level 2. It was nevertheless plainly level 1 offending. The personal mitigation was minimal, there had been no guilty plea, and the asserted remorse was unimpressive. A sentence of seven years was the least sentence that could be justified after trial.

4. The prosecution’s concession below that the case fell between levels 2 and 3 did not bind either the sentencing judge or the Attorney General or Solicitor General. Categorisation under a guideline is an evaluative judgment, not a factual concession. A departure on a reference is permissible where properly and substantially justified, although the court will give due weight to the sentencing judge’s evaluation.

5. Applying section 35 A of the Road Traffic Offenders Act 1988, as amended, the extended disqualification period was increased to 42 months. With the five-year discretionary period, the total driving disqualification became eight and a half years.

• Court of Appeal (Criminal Division) — On a reference for an unduly lenient sentence, the court allowed the reference, quashed the custodial sentence and substituted seven years’ imprisonment: [2016] EWCA Crim 2238 .

• Crown Court at Preston — The offender was convicted after trial of causing death by dangerous driving and sentenced to four years and six months’ imprisonment, with a driving disqualification of seven years and three months and an extended driving test requirement.