Causing death by dangerous driving

Tomasz Kroker using his mobile phone at the wheel

This week saw Tomasz Kroker sentenced to ten years’ imprisonment for causing death by dangerous driving along with the calls for tougher sentences that usually accompany such distressing cases.

Kroker had been driving his HGV along the A34 in Oxfordshire when it collided with a row of stationary vehicles that had stopped due to traffic ahead of them. Initially Kroker told him employer he had not been distracted by the radio or his telephone. In police interview, he answered no comment to all questions put to him at first. At some point, he told police that his brakes had failed suddenly. When the police showed him the dashcam footage from his lorry that showed him using his phone up until the very last second before impact Kroker admitted being distracted.

Last week he entered a guilty plea to four counts of causing death by dangerous driving and one count of causing serious injury by dangerous driving. This week judge Maura McGowan sentenced him to ten years’ imprisonment.

The relatives of those killed as well as campaign groups called for tougher sentences for people who kill others in these circumstances. There have also been calls for people to be prosecuted for manslaughter and receive tougher sentences.

The offence of causing death by dangerous driving was created specifically because people used to be tried for manslaughter and juries were very reluctant to convict. They were so reluctant to convict that the government of the day created the offence causing death by dangerous driving.

Historically, sentences for this type of offence were relatively light because sentencing has always looked toward culpability and intention to frame the sentence and only then toward the result. The prevailing view was always that it was unfair to impose a very lengthy sentence on somebody who only did a very small thing wrong, even if that very small thing had very big consequences.

Some would argue that taking your eyes of the road for a few seconds is a minor thing to do in the grand scheme of things and that an offender is less culpable for the deaths caused than somebody who sets out to kill. That was always the argument for relatively short sentences in driving cases.

The pendulum has clearly swung in the past decade or so and, in my opinion, is still swinging towards a situation where sentences are based not on the outcome a defendant intended but on the outcome of the defendant’s actions. This can be seen in the creating of offences such as causing death by careless driving and causing serious injury through dangerous driving, which allow courts to impose harsher sentences than standard dangerous/careless driving even when aggravated by death or serious injury.

As a law student, I always took the view that sentence should be based on the actual actions taken and the intention of the accused in taking those actions not on the outcome. As I grow older, I recognise that the potential outcome is often actually blindingly obvious and so very difficult for a sentence to ignore. Whereas as a 17 year old I would have thought that there’s no harm in speeding around a quiet country road, as an adult I recognise that I have no idea what’s around that corner and though I might get away with speeding round a bend a thousand times, I only need to find somebody around that bend once to end up killing somebody.

How does a court begin sentencing somebody whose momentary inattention has led to the deaths of four people?

First, the court must decide whether the offence is a dangerous offender. This means somebody who has committed one of a long list of specified offences and whom the court thinks pose a significant risk of serious harm to members of the public from further specified offences. In this case, I would have been surprised had the court said Kroker did pose such a risk, especially given the remorse he showed at the scene and later on. If he had been found to be a dangerous offender, the court would have had the power to impose a life or extended sentence rather than a maximum of 14 years.

Next the court must determine the level of seriousness of the offence. There are three levels distinguished by factors related mainly to the standard of driving:

·       Level 1 includes the most serious offences involving a deliberate decision to ignore the rules of the road, or a flagrant disregard for the rules of the road. This deliberate decision or disregard should be accompanied by a disregard for the great danger being caused to others. These offences are characterised by:

o   Prolonged, persistent and deliberate course of very bad driving and/or

o   Consumption of substantial amounts of alcohol or drugs leading to gross impairment and/or

o   A group of factors, which taken individually would place this offence in level 2 but taken together indicate a greater degree of seriousness.

·       Level 2 is for driving that created a substantial risk of danger and is characterised by:

o   Greatly excessive speed, racing or competitive driving or

o   Gross avoidable distraction such as reading or writing text messages over a period of time or

o   Driving while the defendant’s ability to drive is impaired through the consumption of alcohol or drugs or because the defendant failed to take prescription drugs or because of a known medical condition or

o   A group of factors, which taken individually would place this offence in level 3 but taken together indicate a greater degree of seriousness.

·       Level 3 encompasses driving that created a significant risk of danger and is characterised by:

o   Driving above the speed limit or at a speed that is inappropriate for the conditions (this could be a speed below the speed limit) or

o   Driving while tired or in the knowledge that the vehicle has a serious defect, including being poorly maintained or loaded dangerously or

o   A brief but obvious danger that arose from a seriously dangerous manoeuvre or

o   Driving while avoidably distracted or

o   Failing to have proper regard for vulnerable road users.

According to the press reports, Kroker was distracted for a period of 45 seconds during which period he did look at the road but only very briefly; he was changing the music on his mobile telephone. When passing sentence, the judge said that he was so distracted he might as well have been “driving with his eyes closed”.

While 45 seconds may not sound a very long time, it was long enough for his lorry to travel almost a kilometre with the driver paying virtually no attention to the road ahead of him. That is arguably sufficient to count as a “prolonged period” and it is difficult to avoid the conclusion that not looking at the road for almost a kilometre is very bad driving and obviously dangerous. The distraction was easily avoidable, indeed it should never have arisen.

Deciding on the level is not a matter of counting all the factors and the one with the most wins. Sentencing is an art that requires the sentencing judge must take account of all the factors in the case and decide what level it falls into. In this case, the judge seems to have decided it was a level 1 offence. Do you agree?

The starting point and ranges for each level are as follows:

1.       Starting point is 8 years imprisonment with a range of 7 to 14 years

2.       Starting point is 5 years imprisonment with a range of 4 to 7 years

3.       Starting point is 3 years imprisonment with a range of 2 to 5 years

So, in Kroker’s case the judge would have taken a starting point of 8 years. You’ll note that so far, we have decided on levels based entirely on the defendant’s actions, we haven’t considered the result of his actions beyond this being a case involving death. But, we are about to because after determining the starting point the judge must take account of any aggravating or mitigating factors that exist.

In Kroker’s case there are three, possibly five aggravating factors that apply and will have been considered by the judge:

1.       Multiple deaths;

2.       Serious injury caused in addition to the death (although he received a four year prison sentence for that as a separate offence);

3.       Disregard of warning – just an hour before the crash Kroker had signed a statement for his employer promising not to use his phone while driving;

4.       Other offence committed, using a mobile telephone. Although using a phone is not mentioned in the sentencing guidelines it is arguable that it applies in this case.

5.       Although not listed as an aggravating factor by the guidelines, the court may also have been unimpressed by his initial attempt to avoid responsibility by denying the use of the phone until confronted with the CCTV evidence and a claim that his brakes failed suddenly.

The sentencing guidelines list a number of mitigating factors, none of which apply in this case. However, Kroker displayed genuine remorse for the deaths he caused immediately at the scene and throughout the court case. That may well have saved him from an even longer sentence.

So, having considered the aggravating factors the judge moved from the starting point of 8 years to impose a sentence of 10 years imprisonment. It’s not clear from any of the press reports but I assume that this was 10 years per offence all to run concurrently. She also imposed four years for causing serious injury. A seven year driving ban was also imposed and Kroker will have to take an extended driving test before he is allowed on the road again.

Was the sentence long enough? In my opinion it is because, although he was irresponsible and caused a huge amount of harm, he did not set out to do any of those things. You don’t have to agree with my opinion and I know many don’t. As I said earlier, the reason the offence of causing death by dangerous driving was created was because juries were frequently unwilling to convict people of manslaughter and open up the lengthy sentences that would follow. If sentences are made significantly longer I have to question whether juries would become reluctant to convict once again – maybe times have changed and people no longer think like that.