Hussain, R v

For drug-driving offences, the Sentencing Council’s Drug Driving Guidance is not a binding sentencing guideline. It should nevertheless be used where helpful. The excess-alcohol guideline is not an appropriate substitute.

In applying the guidance, the court must identify specified drugs which increase seriousness and any aggravating factors. The presence of another specified drug, carrying a passenger, and relevant drug offending while subject to a suspended sentence may justify a disqualification within the higher suggested range.

R v Hussain concerned an application for leave to appeal against a 30-month driving disqualification imposed at Nottingham Crown Court following committal for sentence from Nottingham Magistrates’ Court.

The applicant had pleaded guilty to two offences of driving with controlled drugs above the specified limit, contrary to section 5A(1)(a) of the Road Traffic Act 1988. He did not challenge the fines or the curfew imposed for breach of a suspended sentence order. The sole issue was whether the driving disqualification was manifestly excessive.

1. The application for leave to appeal was refused. The 30-month disqualification was not manifestly excessive.
2. The Sentencing Council’s Drug Driving Guidance was relevant assistance, although it did not have the force of a sentencing guideline. It was wrong to sentence by reference to the excess-alcohol guideline, because the drug-driving regime adopted a strict-liability and zero-tolerance approach.
3. The applicant had a factor increasing seriousness because his blood contained derivatives of both cocaine and cannabis, the latter being another specified drug. The court also identified two significant aggravating factors: he carried a passenger, thereby exposing that person to risk, and he committed the offences while subject to a suspended prison sentence for conspiracy to supply cannabis.
4. The passenger’s apparent lack of vulnerability, and any awareness of the applicant’s drug use, did not reduce the significance of carrying that passenger. The guidance indicated a disqualification of 29 to 36 months where factors increasing seriousness and aggravating factors placed the offending at the custody threshold. Although the Recorder did not find that threshold crossed, the 30-month period appropriately followed the guidance in the circumstances.

• Court of Appeal (Criminal Division): refused the application for leave to appeal against sentence in R v Hussain, [2018] EWCA Crim 2361.
• Crown Court at Nottingham: on 13 March 2018, imposed fines, a three-month electronically monitored curfew for breach of a suspended sentence order, and a 30-month driving disqualification.
• Nottingham Magistrates’ Court: committed the applicant to the Crown Court for sentence for two drug-driving offences.