Neher, R. v

When deciding whether to suspend a custodial sentence, a court must follow the sequential custodial-sentencing process and weigh the relevant guideline factors. A finding that none favours suspension is erroneous where the offender has very strong personal mitigation.

Sentencing for causing serious injury by dangerous driving remains fact-sensitive. A court may use the death-by-dangerous-driving guideline to assess culpability, while allowing for the different level of harm. Where imprisonment has been served, a driving disqualification may require an extension period under section 35A of the Road Traffic Offenders Act 1988.

The appellant pleaded guilty in the Magistrates’ Court to two offences of causing serious injury by dangerous driving. She was committed to Northampton Crown Court, which imposed concurrent sentences of nine months’ immediate imprisonment, disqualified her from driving for two years, and required an extended driving test.

Her car had passed through a red light and collided with a motorcycle carrying an adult rider and his 12-year-old daughter. Both sustained serious injuries. The appeal, brought with leave, did not challenge the custody threshold or the length of the custodial term. It concerned whether the sentences should have been suspended in light of the appellant’s personal mitigation.

1. Appeal allowed. The court quashed the concurrent nine-month immediate custodial sentences and substituted concurrent sentences of nine months’ imprisonment, suspended for two years.

2. The correct custodial-sentencing sequence requires the court to consider whether the custody threshold is passed, whether custody is unavoidable, whether the sentence can be suspended and, if not, whether it can be served intermittently. The suspension decision remains highly fact-sensitive.

3. There was no guideline specifically for causing serious injury by dangerous driving under section 1A of the Road Traffic Act 1988. It was nevertheless permissible to use the levels of offending in the death-by-dangerous-driving guideline, as explained in R v Dewdney [2014] EWCA Crim 1722, while bearing in mind the different harm involved, as stated in R v Jenkins [2015] EWCA Crim 105. The court regarded this driving as Level 3 offending, but emphasised that comparisons with other driving cases were of limited assistance.

4. The sentencing judge erred by stating that none of the guideline factors favouring suspension existed. The appellant had very strong personal mitigation: good character, remorse, acceptance of responsibility, low risk of reoffending, vulnerability in custody, and serious consequences for her education and employment. The judge had also failed expressly to address her forcible return to the family home on the preceding night. Those matters justified suspension despite the seriousness of the offending and its consequences.

5. Applying R v Needham [2016] EWCA Crim 455, the court extended the driving disqualification by 10 weeks under section 35A of the Road Traffic Offenders Act 1988, reflecting the 10 weeks already served in custody. The requirement to pass an extended driving test remained.

• Court of Appeal (Criminal Division) Allowed the appeal against sentence and substituted concurrent suspended sentences: [2018] EWCA Crim 29.

• Northampton Crown Court On 28 June 2017 imposed concurrent sentences of nine months’ immediate imprisonment following committal for sentence.

• Magistrates’ Court The appellant pleaded guilty and was committed to the Crown Court for sentence.