Cooksley
[2003] EWCA Crim 996, [2004] 1 Cr App R(S) 1. That was a case in which this court, presided over by the then Lord Chief Justice, considered the proposals made by the Sentencing Advisory Panel as to sentencing in cases of dangerous driving. 16. She records that at paragraph 13 of that judgment the Lord Chief Justice stated: "The key problem for a sentencer dealing with this offence is the tension between the outcome of the offence, which is inevitably the death of at least one victim, and the degree of the offender's culpability. Culpability must be the dominant factor when the offence involves no intention to kill or injure." 17. She then identified the four categories into which the Sentencing Advisory Panel had divided the offences of dangerous driving: that is those where there are no aggravating circumstances; secondly, those where there is intermediate culpability; thirdly, where there is higher culpability; and, fourthly, where there is the most serious culpability. 18. So far as the factors to be considered when determining the level into which to place the particular offence, or offences, the court set out in paragraph 15 of the judgment the aggravating and mitigating factors. It is clear that in the present case in relation to aggravating factors the only ones of significant relevance are (l) and (m), which relate to the consequences of the driving in relation to the numbers killed or injured. 19. The sentencing judge having then reflected on the fact that since the case of Cooksley the law had changed and the maximum sentence had been increased to 14 years, concluded that these particular offences fell into what she described as the most serious category of offence, which was in Cooksley recommended to have as a starting point a sentence of six years' imprisonment. She then went on in relation to the quality of driving itself: On any view, the initial collision with Mr Keyworth was dangerous. He was very close to the bus, in the lay -by at but bus stop and clearly visible as the bus set off. It cannot be gainsaid that you could and should have seen him and avoided him. Having struck him and knocked him down, you failed to respond to the shouts of the passengers. It is impossible to accept that you were not aware of that collision with Mr Keyworth. You continued to press the wrong pedal, the bus continued to accelerate and your course of driving became increasingly dangerous. You failed totally to consider the safety of your passengers who were in your care or your responsibility to other road users and pedestrians. The prosecution accept that your failure to act may have been due to panic but the prosecution case is that 16 seconds, during which the bus was accelerating, was unusually long. 22 second for the whole journey is a long time. 176 metres, in the circumstances of this case, is a long journey. For 146 metres of that journey the bus was under acceleration. The culpability here, even with all the available mitigation and the inevitable sympathy that anyone hearing this case must feel for you as well as for the families of the victims and all those who have been affected, is substantial. The principal determining factor in sentencing is your culpability. I'm satisfied that this also brings the case into the most serious category. You are an experienced bus driver and, even taking panic into account, it is astonishing that you did not react more quickly to avoid the devastation that you caused." 20. She then went on to repeat that the starting point was therefore six years, but, bearing in mind the other matters to which she had referred, the appropriate sentence would have been some seven and a half years' concurrent for each of the five offences and because of the plea of guilty she accordingly reduced it to a sentence of five years' imprisonment. 21. On behalf of the appellant the main point made is that the judge was wrong to place this case in the category of highest culpability. It is submitted that, in truth, this was a case of intermediate culpability as to which the Panel stated, as recorded in paragraph 23 of Cooksley by the Lord Chief Justice: "An offence involving a momentary dangerous error of judgment or a short period of bad driving may be aggravated by a habitually unacceptable standard of driving on the part of the offender (factors (j) or (k)) by the death of more than one victim or serious injury to the others victims (factors (l) and (m)) or by the offender's irresponsible behaviour at the time of the offence (factors (m) to (p)). The presence of one or more of these features could indicate a sentence within the higher range, up to three years." 22. The Lord Chief Justice in the same paragraph then went on: "Accordingly, our starting point is two to three years. We do, however, qualify the Panel's advice to this extent that we foresee circumstances, particularly where there is more than one of the factors present referred to above where five years could be appropriate if, for example, there is more than one victim. Unfortunately, because of the range of the variety of facts it is not possible to provide more precise guidelines." 23. It is important to remember that Cooksley , whilst providing valuable assistance to sentencers in determining where in the spectrum of sentencing a particular case falls, was, and remains, a guideline case. It is therefore of assistance to a sentencer but it is not prescriptive. 24. It may be that in one sense there is justification in the submission that this case could be looked at as a case of intermediate culpability with aggravating features, the aggravating features being, it seems to us, the matters identified by the sentencing judge in relation to the period over which the appellant remained of the view that he was applying the brake without appreciating that it was, in truth, the accelerator, but, perhaps most important, the multiple deaths and injuries which ensued. 25. As can be seen from the way in which the Lord Chief Justice approached the way in which one should look at cases in such circumstances, it seems to us that, even if this is to be placed in the intermediate category, bearing in mind the increase in sentences since the case of Cooksley , the judge's conclusion that seven and a half years was the appropriate figure to apply after trial cannot, in itself, be considered manifestly excessive. But it seems to us that, equally, the sentencing judge was entitled to decide that the case should more appropriately be placed, because of the factors to which we have referred, in the most serious category. It matters not. Once again, clearly if that is the right categorisation, seven and a half years cannot, in all the circumstances and for the reasons we have given, be considered a manifestly excessive sentence after trial. In those circumstances, whichever way one approaches the sentence which was imposed so carefully in this case by Dame Heather Steel, we cannot say that there is any justification for the conclusion that the sentence was manifestly excessive. Accordingly, we dismiss this appeal.