Afrifa-Osew, R v

In sentencing for causing death by dangerous driving, culpability is assessed principally by the quality of the driving and the foreseeable danger it created. A category 3 offence has a starting point of three years’ custody before aggravating and mitigating features are considered.

The effect of imprisonment on innocent dependants must be considered separately when deciding whether custody is unavoidable, fixing the shortest commensurate term, and deciding whether that term can be suspended. Family impact is highly fact-sensitive. In an exceptional case, it may justify suspension, even though immediate custody will ordinarily provide the appropriate punishment.

The offender made an abrupt and unsafe U-turn on the A10 without seeing an oncoming motorcyclist. The collision killed him. She was convicted after trial of causing death by dangerous driving.

On 8 September 2017, the Crown Court imposed two years’ imprisonment, suspended for two years, 300 hours’ unpaid work, and a driving disqualification. The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient.

The central issues were whether the judge had wrongly reduced the guideline starting point to two years and then double-counted mitigation by suspending the sentence, particularly in light of the impact on the offender’s children.

1. The Attorney General’s reference was dismissed. The suspended sentence was lenient, but not unduly lenient. There was no proper basis to vary it.

2. The offender’s driving was highly dangerous, notwithstanding its short duration. This was correctly classified as a category 3 offence. The proper starting point was three years’ custody before adjustment for aggravating and mitigating features. The sentencing judge was entitled to give little weight to the vehicle’s MOT position because any defects were irrelevant to the collision. He was also entitled to reduce the term to two years because of the exceptional evidence of the offender’s positive good character and contribution to others.

3. The court applied the distinction in R v Petherick [2013] 1 WLR 1102. The impact on family life is relevant first to whether imprisonment is proportionate where a case is on the cusp of custody, and separately to whether family circumstances may mitigate the length of a sentence. The Sentencing Council’s four-stage approach also required a distinct final decision on suspension.

4. There was no double counting. The judge reduced the custodial term for the offender’s good character, then considered separately whether suspension was justified by the likely serious impact of immediate imprisonment upon her innocent children. He had properly considered the interests of both the offender’s family and the deceased’s family. Although the prospect of the children being sent to Ghana had reduced, it could not be discounted, and there was strong evidence that they would suffer significantly if their primary carer were imprisoned.

5. Immediate custody will usually be required in cases of this gravity. However, the judge was entitled to treat these circumstances as exceptional and to suspend the two-year term. The decision turned on its own facts and was stated to set no precedent for other cases.

• Court of Appeal (Criminal Division): Granted leave under section 36 of the Criminal Justice Act 1988, but dismissed the Attorney General’s reference and left the suspended sentence unchanged.
• Crown Court: On 8 September 2017, following conviction for causing death by dangerous driving, imposed two years’ imprisonment suspended for two years, 300 hours’ unpaid work, and a two-year driving disqualification with an extended re-test requirement.