A total sentence of five years' imprisonment was in all the circumstances and in particular in light of the guideline case of R v Cooksley & Ors (2003), manifestly excessive and a sentence of four years would be substituted.Appeal with leave of the single judge, against a total sentence of five years' imprisonment imposed by HH Judge Burr at Swansea Crown Court on 7 March 2003 following a plea of guilty to causing death by dangerous driving , driving with excess alcohol, possession of Class A drugs namely MDMA and possession of Class B drugs namely cannabis. The defendant ('D') was driving home after a night out drinking with friends. The victim ('V') was travelling in the opposite direction with his wife and 16 year old daughter. D swerved into the path of V and there was a head on collision. V and his daughter had to be cut from the wreckage, V died shortly after the accident and his daughter sustained serious leg and arm injuries. Following arrest D was breath and blood tested and found to have 152ml alcohol per 100ml blood. When he was searched he was found to have 1.5g cannabis and two and a half ecstasy tablets. In interview D said as it was dark he had been straddling the white line, he had been dazzled by V's oncoming headlights and mistakenly swerved to the right, which was the side of the road he would normally have driven on in Holland. When sentencing, the judge commented that D had been drinking for some time and had been over double the legal limit when tested some three hours after the accident. Blood analysis showed traces of cannabis and D had been in no fit state to drive. D appealed sentence on the ground that it was manifestly excessive as the judge had failed to give credit for his guilty plea and the strong mitigation. Allowing for a discount of one third, the sentence imposed meant the judge had in mind seven and a half years after trial.HELD: (1) The judgment in R v Cooksley & Ors (2003) EWCA Crim 996 was not available to the sentencing judge. The Lord Chief Justice adopted a series of aggravating and mitigating factors to be taken into consideration when sentencing for causing death by dangerous driving whilst under the influence of drink or drugs. That list was not exhaustive and it was important to appreciate that significant factors could differ. (2) D was within the higher culpability bracket and two of the aggravating factors were present, namely the consumption of drugs and alcohol and the fact that he killed a person. In mitigation was the fact that he had a good driving record, no previous convictions and had shown remorse. (3) In all the circumstances the sentence of five years was unduly severe. The court acknowledged the immense effect on the family of the deceased, however, the sentence imposed had to reflect the particular features of the case, the aggravating and mitigating factors and the guidelines laid down by the court in R v Cooksley (supra). A sentence of four years would be substituted.Appeal allowed.

[2003] EWCA Crim 3063

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