14 December 2016
A case this week in Ipswich Crown Court has highlighted the public’s concern about the level of sentencing in fatal driving cases. The subject was aired at length on the Mark Murphy breakfast show @BBCSuffolk yesterday.
Callers to the programme asked “Why, if the maximum sentence is 14 years in prison for causing death by driving carelessly whilst over the limit do the courts hand out sentences of 4 or 5 or 6 years?” “Why are courts bound by sentencing guidelines?” “Why if the courts give a 6 year sentence does that not mean 6 years in prison?”
Years ago, sentencing used to be in the discretion of a judge guided by Court of Appeal cases. The judge would look at cases involving similar facts and try to arrive at some consistency, taking into account any mitigation that may allow a lesser sentence to be passed. This could produce vastly differing results across the country.
The approach was changed in 2003 by Act of Parliament when all judges were instructed to first establish the seriousness of the offence and then to sentence accordingly. Ever since, Guidelines for specific types of offences have progressively been published by the Sentencing Guidelines Council, with different offences being addressed each year. The Guidelines for driving offences were produced in 2008.
In any sentencing exercise, Judges are required to take into account the five purposes of sentencing which are punishment, reduction of crime, reform and rehabilitation, protection of the public and reparation to those affected by the time.
First, judges are required to allocate the level of seriousness to an offence to decide whether to impose custody or not and, if custody, the length of imprisonment.
“Seriousness” is assessed by looking at the culpability (or blameworthiness) of the offender and the harm caused or intended to be caused. This is sometimes difficult because, for instance, the harm caused can be greater than the harm intended or, sometimes, the blame attached is greater than the actual harm caused. It would be a case of greater culpability, for instance, if there had been deliberate harm caused which was more than necessary for the offence to be committed or where an offender had targeted a vulnerable victim. If there was much more harm or, indeed, much less harm caused than was intended or foreseen then this could lead to a finding of greater or lesser blame or culpability.
The sentencing guidelines are formulated by the Sentencing Guidelines Council and are used to establish seriousness. This is done by looking at the level of culpability and harm.
Once the level of seriousness has been assessed then the Guidelines continue to assist the judge by setting out a list of examples of aggravating or mitigating factors which might increase or decrease the level of sentence.
In general, this approach is designed to deliver a level of consistency across the country which, some argued, was not present under the previous discretionary sentencing regime.
What the process does not deal with very well is cases where the degree of harm vastly out weighs the harm either intended or foreseen by the offender. This might be the case where, for instance, death is caused by careless driving involving a momentary lapse of attention leading to the most severe consequences.
The government has recognised that there is some considerable disquiet about the level of sentencing in some fatal driving cases. For that reason, the Ministry of Justice is consulting on the approach to seriousness in driving offences which have led to death. The consultation is open to 1 February 2017 https://www.gov.uk/government/consultations/driving-offences-and-penalties-relating-to-causing-death-or-serious-injury .
Generally, the government does not anticipate a change to the approach set out in the sentencing guidelines for most driving offences which result in fatalities. However, the consultation specifically asks for responses to a proposal that causing death by dangerous driving and causing death by careless driving whilst under the influence of alcohol/drugs should have maximum sentences increased from 14 years to life. The government also wants to know what people think about imposing the maximum sentence in all such cases regardless of the presence of other aggravating or mitigating factors and whether an offender pleads guilty or not guilty or has any previous convictions. Additional aggravating factors which would not then be given any weight might include the fact that there was more than one fatality or where the level of alcohol breath reading was very high.
What is clear is that the Sentencing Guidelines Council has no plans to revise the current guidelines on this type of offence unless the consultation leads to a change in the law.
As an example of the Guidelines approach, causing death by careless driving while under the influence of drink or drugs or where there has been failure to provide a specimen for analysis is given a starting point of 18 months custody where there has been a momentary inattention with no aggravating factors and where the level of alcohol is only a little over the limit (with a sentencing range of 26 weeks to 4 years). The guideline sentence rises to a starting point of 6 years with a sentencing range of between 5 and 10 years custody where the alcohol level is double the limit. The starting points reflect the position where someone has no previous convictions and is convicted after trial. If there is a guilty plea offered at the earliest opportunity then an offender is legally entitled to a one third discount on sentence.
The statistics across the country do tell a story of consistency. In 2015 there were 21 cases of causing death by careless driving whilst under the influence of alcohol or drugs. Of those, 20 resulted in sentences of immediate custody. The average sentence in 2015 was 53 months. For causing death by dangerous driving, in 2015 there were 122 cases. 114 of those resulted in immediate custody with the average sentence being 57 months.
The callers to Mark’s programme were also concerned that an offender might be released halfway into any sentence imposed. There are a number of well-established reasons why this is done and will continue to be done for the foreseeable future. Not only does it allow the authorities to exert some control on the prison population but also any release into the community is on licence and an offender is subject to recall. One of the stated purposes of sentencing is reform and rehabilitation. Punishment is important, of course, but is only one factor in the process.
The sentence imposed at Ipswich Crown Court this week for causing death by careless driving whilst over the limit was bound to provoke comment. The outcome was tragic. The offender was clearly highly culpable. But the sentence for the crime committed accurately reflected the existing guidelines.