R v Kenneth Smith

In sentencing for causing death by dangerous driving, deliberate and flagrant acceleration after passing a speed camera may be treated as an aggravating feature where it produces grossly excessive speed. This may justify a sentence above the guideline starting point.

Appellate review considers the aggravating and mitigating circumstances overall. Express consideration of remorse, personal consequences, family impact and delay does not require a lower sentence where the sentence is not manifestly excessive. Blame wrongly placed on another may also aggravate sentence under the general sentencing guideline. Interim disqualification periods are deducted administratively under the Road Traffic Offenders Act 1988, rather than by the sentencing judge.

The applicant renewed his application for leave to appeal against a sentence of 44 months’ imprisonment imposed at the Crown Court at Woolwich for causing death by dangerous driving. He had pleaded guilty after initially denying responsibility and advancing a basis of plea suggesting that the deceased’s driving contributed to the collision.

The proposed grounds alleged that the sentencing judge wrongly treated deliberate speeding as aggravating, placed excessive weight on it, and failed to give sufficient weight to remorse, mental health, employment and family consequences. The court also considered an issue concerning calculation of the applicant’s driving disqualification. The central issues were whether the sentence was manifestly excessive and whether the disqualification period had been calculated correctly.

1. Application refused. The court agreed with the single judge that there was no arguable basis for contending that the sentence was manifestly excessive.
2. The sentencing judge was entitled to treat the applicant’s conduct as aggravating. This was not simply a case of driving at greatly excessive speed. The applicant had slowed for a speed camera and then rapidly accelerated to 81 mph on a 40 mph road. The judge was entitled to regard that conduct as deliberate and flagrant evasion of the speed limit and enforcement measures, producing grossly excessive speed. The resulting increase above the guideline starting point was within the sentencing discretion.
3. The sentencing remarks demonstrated that the judge had considered the relevant mitigation, including remorse, the effect on the applicant’s mental health and employment, the impact on his family, delay and the guilty plea. The fact that those matters were not separately deducted did not show that they had been ignored. The sentence had to be assessed by standing back and considering all aggravating and mitigating circumstances.
4. The court added that the judge would also have been entitled to treat blame wrongly placed on another as aggravating. Although that factor was not listed in the offence-specific guideline, it appeared in the General Guideline: Over-arching Principles, which was intended to be used with offence-specific guidelines.
5. The court drew attention to section 26(12) of the Road Traffic Offenders Act 1988. A period of interim disqualification is automatically deducted administratively from a disqualification imposed under sections 34 or 35. It should not be deducted by the sentencing judge. The point was noted for future reference, since the court had no power to increase the disqualification period.

• Court of Appeal (Criminal Division): renewed application for leave to appeal refused; the sentence was not manifestly excessive: [2023] EWCA Crim 1097.
• Crown Court at Woolwich: HHJ Mann KC imposed 44 months’ imprisonment for causing death by dangerous driving.