Brown, R. v

When deciding whether to suspend a custodial sentence, the court must balance the relevant guideline factors. Strong personal mitigation and a realistic prospect of rehabilitation may favour suspension, but immediate custody may remain necessary to provide appropriate punishment for a seriously culpable offence causing death by dangerous driving.

Advanced age does not require a different sentencing approach. A substantial deterioration in a medical condition after sentence may exceptionally justify appellate intervention, but prison and compassionate-release powers remain available to the Secretary of State where health needs can be managed in custody.

The appellant, aged 78 at sentence, pleaded guilty in the Crown Court at Carlisle to causing death by dangerous driving. After falling asleep while driving a van towing a caravan, he crossed into the opposing carriageway and fatally injured another driver.

On 13 November 2020, the Crown Court imposed 12 months’ immediate imprisonment after credit for the guilty plea, together with a 42-month driving disqualification. The appellant accepted that custody of that length was inevitable, but contended that it should have been suspended. He also relied on his age, poor health, and a deterioration in his health while in custody.

The central issues were whether the sentencing judge erred in refusing suspension and whether the subsequent deterioration in health justified substituting a suspended sentence.

1. Appeal dismissed. The 12-month immediate custodial sentence was neither wrong in principle nor manifestly excessive.

2. The appellant’s driving was seriously culpable. He had undertaken a long journey, created the conditions in which he fell asleep at the wheel, and caused an avoidable death. The sentencing judge had already given substantial effect to age, ill health, good character, remorse, bereavements, driving record and the guilty plea. The resulting sentence before plea credit was below the guideline range.

3. In deciding whether to suspend the sentence, the judge properly balanced the factors identified in the guideline on custodial sentences. A realistic prospect of rehabilitation and strong personal mitigation pointed towards suspension. However, the judge was entitled to give decisive weight to the need for appropriate punishment for an offence of this seriousness. Immediate custody was capable of being the only appropriate punishment.

4. The judge had not imposed a deterrent sentence directed at elderly drivers. His point was that advanced age did not justify applying a different approach to immediate custody.

5. The court separately considered the appellant’s deterioration in health in custody. Applying R v Stephenson [2018] EWCA Crim 318, a significant deterioration in a condition known at sentence may exceptionally be relevant, although such cases are rare and mercy remains discretionary. The appellant’s health needs were being addressed, including hospital transfer. Any further medical or compassionate release was a matter for the Secretary of State.

• Court of Appeal (Criminal Division) Dismissed the appeal against the immediate custodial sentence: [2021] EWCA Crim 269.
• Crown Court at Carlisle On 13 November 2020, imposed 12 months’ immediate imprisonment following a guilty plea to causing death by dangerous driving, and disqualified the appellant from driving for 42 months.