R v Thomas Davies

Where an operative Sentencing Council definitive guideline applies, a sentencing court should follow it unless the interests of justice make that inappropriate. Failure to have any regard to it may amount to an error of law and justify intervention on an Attorney General reference under the Criminal Justice Act 1988.

In assessing dangerous reversing, culpability must reflect the objective risk created by obstructed visibility and an obviously vulnerable pedestrian. The absence of an intention to drive recklessly does not itself place the offence in the lowest culpability category. Even where immediate custody is required by the harm and culpability, suspension may be justified after weighing the applicable guideline factors, low ongoing risk, double jeopardy and prison overcrowding.

The offender pleaded guilty to causing bodily harm by wanton or furious driving after reversing a work van into an elderly care-home resident and driving over her twice. She sustained life-changing injuries. The sentencing judge treated the offender’s culpability as very low and imposed a £500 fine with three penalty points.

The Solicitor General sought leave to refer the sentence as unduly lenient under section 36 of the Criminal Justice Act 1988. The central issues were whether the sentencing judge’s failure to consider the applicable definitive guideline made the sentence unduly lenient, the proper harm and culpability category, and whether any custodial term should be suspended.

1. The reference was allowed. The court granted leave and held that the sentencing judge had erred by failing to have any regard to the applicable Sentencing Council definitive guideline. It was not contrary to the interests of justice to follow that guideline. The condition in section 36(2)(b) of the Criminal Justice Act 1988 was therefore met, and the error risked undermining public confidence in sentencing.

2. The harm was level 1. The victim was an obviously vulnerable pedestrian and suffered life-changing, potentially life-shortening injuries. The court assessed culpability at level B, not level C. The offender was a commercial driver undertaking a risky reversing manoeuvre with obstructed visibility in a care-home car park, having shortly beforehand seen the victim walking there. The absence of an intentional reckless or wanton state of mind did not support the Recorder’s conclusion that culpability was at its lowest.

3. For a category B1 offence, the definitive guideline gave a starting point of 26 weeks’ custody and a range from a high-level community order to 12 months’ custody. After allowing appropriate credit for the guilty plea and considering mitigation and aggravation, the proper sentence was eight months’ imprisonment. No non-custodial sentence could adequately reflect the harm and culpability.

4. Applying the Overarching Guideline on the imposition of community and custodial sentences, the court nevertheless suspended the eight-month term for 12 months. The offender presented little ongoing risk, apart from this offence and older motoring offending. The court also had regard to R v Ali [2023] EWCA Crim 232, the principle of double jeopardy, and prison overcrowding.

5. The court also quashed the three penalty points and imposed a 12-month discretionary driving disqualification. The offender’s reliance on a licence for work was outweighed by the nature of the offending.

• Court of Appeal (Criminal Division) — By reference under section 36 of the Criminal Justice Act 1988, the court allowed the reference and quashed the sentence: [2023] EWCA Crim 1617.
• Sentencing court — On 9 October 2023, the offender was fined £500 and given three penalty points after pleading guilty to causing bodily harm by wanton or furious driving.