The modern road safety regime means that, even if you haven’t touched a drop of alcohol, carelessness behind the wheel resulting in death could land you with a sentence of up to five years’ imprisonment. That’s the effect of the death by careless driving offence Parliament introduced in 2006. But what aggravating factors will a court take into account when sentencing careless drivers?
While maximum sentences will be very rare (the Sentencing Guidelines Council’s Guideline on “Causing Death by Driving” cases puts the top end of the ordinary sentencing range at three years), the threshold for a short custodial sentence is very low indeed. If the death did not result from “careless or inconsiderate driving arising from momentary inattention with no aggravating factors” the starting point is 36 weeks – that is unless the driving is deemed to have fallen “not far short of dangerous driving”, in which case the starting point is 15 months. With 12 months being the upper limit for a suspended sentence, and given that the sentencing range for the lowest culpability bracket does not extend beyond a community order, it becomes easy to understand why the majority of the sentence appeals heard by the Court of Appeal in 2011 focused on undermining the judge’s choice of category.
A review of the 2011 sentencing cases reveals that an effective way of challenging the categorisation can be to dispute the judge’s treatment of certain acts as aggravating factors. On multiple occasions it was held that where the acts complained of represented the constituent elements of the offence, those acts could not also be taken as aggravating factors. In other words, no double counting allowed. The case of Delduca illustrates the issue: the judge was found to have erred in treating the defendant’s adjustment of his heater as an aggravating factor when this was actually the act constituting the “momentary inattention” i.e. the actus reus of the offence itself.
The Court of Appeal’s broader approach to aggravating factors, however, has proved less “defendant friendly”. In Lawrence and Henry, the Court approved the taking into consideration of previous convictions for minor speeding offences and use of a mobile telephone while driving. It remains to be seen whether three points on a licence could tip the balance between a custodial and non-custodial sentence.
In fairness to the Court of Appeal, it has shown itself to be equally robust in its treatment of prosecutors. In Dales, the defendant’s conviction for death by careless driving was quashed on appeal and a re-trial ordered. When the CPS failed to ensure that the new indictment arrived at Luton Crown Court within the prescribed two-month time limit, blaming the oversight on preparations for a “team seasonal event” on 10 December, the order for re-trial was set aside. Careless indeed.