Practice and Procedure


PUBLISHED February 14, 2003

Whilst a victim's view was not a relevant consideration when sentencing, where the sentence would aggravate the distress of the victim, or the victim's family, the sentence could be moderatedAppeal by defendant with leave of the single judge. On 22 February 2002 at Newcastle-Upon-Tyne Crown Court before HHJ Faulks the defendant ('R') pleaded guilty to manslaughter. R was sentenced by Bennet J on 18 June 2002 to four years imprisonment. R lived beside the river and owned a rigid hull inflatable power boat. On 9 August 2001 R went out, with two friends, for a drink using the boat as transport. At 8.00pm they returned home. R was adversely affected by alcohol and travelled at a speed of 28mph along the river. The speed limit for the river was 7mph. R was travelling on the wrong side of the river and failed to see a sea cadet boat which was crossing the river in a loop. The cadet steering that boat threw it into reverse but that did not prevent a collision. R's boat careered across the river and struck a wall. One of R's friends ('V') fell into the water, R did everything he could to try and rescue V but he drowned. When sentencing the judge had available many character references including ones from V's mother and friends. V's mother stated that she did not want to see R go to prison as it would deprive him of his family. R had been a great support to her and she had been to Spain with R, his partner and child since V's death. R was of good character and had pleaded guilty immediately. R appealed sentence on the grounds that: (i) the tariff adopted was too high having regard to the early plea, given even before R had received any legal advice; (ii) R's genuine remorse; and (iii) the type of person he was which was evidenced from prison reports.HELD: (1) The question the court had to consider was what approach should be taken in matters of this kind. The river was not the same as a road, it did not have the same volume of traffic and the consequences of bad driving were not controlled by Parliament. However, the river was a public right of way and others using it were entitled to be protected. Mercifully no sea cadet had died as a result of the incident. (2) Sentence for this type of offence may not bear directly to sentences for offences of death by dangerous driving but they were a useful starting point. (3) There was no question as between those involved that little was achieved by a prison sentence. However, that was not the only yardstick. It was clear from R v Nunn (1996) 2 Cr App R (S) 136, R v Roache (1999) and commentary on those cases in Criminal Law Review that the point of view of the victims was not a relevant consideration. Sentences passed should be in accordance with governing provisions, and the fact that a victim was willing to forgive should not have any relevance. (4) However, there were exceptions, if a sentence would aggravate the victims distress it could be moderated, that principle applied equally to V's mother. (5) The starting point should have been three years and the extent it should be moderated taken from there. People who behaved like R had to face real sentences because if the problem was not addressed more tragedies could occur. However, there should be some reduction. If it was not for the views expressed by V's mother the court would substitute a two year sentence. Because of the mother's views the sentence would be reduced to 18 months.Appeal allowed.