Introduction

This commentary examines the Court of Appeal’s decision on a Solicitor General’s reference for an unduly lenient sentence following a fatal road traffic collision caused by a professional bus driver who had deliberately deprived himself of sleep and was nearly three times over the legal limit for THC. The case clarifies two important sentencing points:

• Prolonged, persistent and deliberate driving whilst repeatedly falling asleep, in combination with being over the drug limit, can and should be treated as Category A culpability for the offence of causing death by dangerous driving.
• When sentencing for causing death by dangerous driving, courts may have measured regard to the Sentencing Council guideline for causing death by careless driving while under the influence of drink or drugs as a cross‑check to ensure proportionality.

The decision also revisits the structure of guideline application where features of more than one culpability category are present, and it corrects the calculation of the driving disqualification to include the proper extension period.

Summary of the Judgment

The respondent, a 24‑year‑old bus driver, attended a party through the night, explicitly stating by text that he would not sleep before his 8 a.m. shift. He drove a double‑decker bus from the depot at 8:45 a.m., visibly drowsy on cab CCTV, repeatedly yawning and experiencing micro‑sleeps. Over approximately 13 minutes he drove erratically, drifting and over‑correcting, before mounting the pavement and fatally striking a nine‑year‑old child on a scooter. He tested negative for alcohol but positive for cannabis (THC at not less than 5.9 μg/L; legal limit 2 μg/L). He pleaded guilty to causing death by dangerous driving and to driving whilst unfit through drugs.

At first instance, the judge placed the case in Category B culpability (starting point 6 years), uplifted to 7 years for aggravation, then down to 6 years for mitigation, and applied a one‑third credit for the early guilty plea, resulting in a sentence of 4 years’ imprisonment and a 5‑year disqualification (later adjusted under the slip rule).

On the Solicitor General’s reference, the Court of Appeal found the sentence unduly lenient. Re‑categorising the culpability as Category A, the Court adopted a 12‑year starting point, adjusted to 10 years (to reflect the presence of some Category B features), added 2 years for aggravation, subtracted 2 years for mitigation, leaving 10 years before plea. Applying the full one‑third plea discount, the Court imposed 6 years and 8 months’ imprisonment. The disqualification was recalculated to 8 years and 4 months (a 5‑year ban plus an extension of 3 years and 4 months to reflect the time to be served in custody). The reference accordingly succeeded.

Detailed Analysis

1) Precedents and Materials Cited

No prior case authorities were cited. The Court’s reasoning rests primarily on the Sentencing Council guidelines:

• The offence‑specific guideline for causing death by dangerous driving, with Category A having a 12‑year starting point (range 8–18 years) and Category B a 6‑year starting point (range 4–9 years).
• The offence‑specific guideline for causing death by careless driving while under the influence of drink or drugs (the “careless under influence” guideline), referenced as a cross‑check. In that guideline, for culpability A, the starting point is 9 years (range 6–12 years) where any quantity of a single drug is detected above the legal limit—here the respondent was nearly three times the limit.

The Court emphasised that although the respondent was not convicted under the “careless under influence” offence, measured regard to that guideline is relevant as a proportionality check when sentencing for the more serious “dangerous driving” offence.

2) The Court’s Legal Reasoning

a) Error in categorisation and the significance of the cross‑check

The first‑instance judge placed the case in Category B, reasoning that it did not equate to the most serious “deliberately dangerous and wicked” driving. The Court of Appeal held this approach undervalued the respondent’s persistent decision to continue driving despite repeated micro‑sleeps and visible drowsiness, and the objective dangerousness of the prolonged journey.

The Court used the “careless under influence” guideline as a cross‑check. Because even a careless‑driving death with drugs above the limit would attract a 9‑year starting point at Category A, a 4‑year sentence for dangerous driving causing death was plainly out of kilter. This cross‑check did not control the outcome but demonstrated the scale of the miscalibration.

b) Why Category A culpability applied

The Court identified three Category A indicators (acknowledging their overlap):

• Deliberate disregard of rules and risk: The respondent chose to attend work without sleep (“I ain’t sleeping”), did not stop after startling awake upon leaving the depot, and continued despite obvious impairment.
• Prolonged, persistent, and deliberate dangerous driving: Over roughly 13 minutes, the respondent repeatedly nodded off and over‑corrected, evidencing sustained dangerous operation while conscious of his condition.
• Lack of attention for a substantial period: A significant span of micro‑sleep and drowsiness, captured on video, culminating in a fatal incursion onto the pavement.

While Category B factors also existed—namely impairment through drugs and deprivation of adequate sleep—the guideline requires weighing the factors to select the category that “most resembles the offender’s case.” On that balance, Category A was plainly engaged.

c) Stepwise application of the guideline

Having determined Category A culpability, the Court followed the guideline structure:

1. Starting point: 12 years’ custody (Category A, causing death by dangerous driving).
2. Adjustment within category range: Down to 10 years to reflect the presence of some Category B features (i.e., acknowledging the case lay near a borderline and that overlapping B‑type factors were present).
3. Aggravation: +2 years for:
   • Victim as a vulnerable road user (a child on a scooter on the pavement),
   • Driving a public service vehicle (special responsibility of care),
   • Offending while subject to a court order (conditional discharge).
4. Mitigation: −2 years for:
   • Genuine remorse and actions at the scene (calling for urgent medical assistance),
   • Age and immaturity (youth; “18 is not a cliff edge”),
   • Positive character references and background (with limited weight to ADHD diagnosis on the facts, given the video evidence of impairment).
5. Plea credit: Full one‑third reduction for an early guilty plea, taking the sentence on the lead count to 6 years and 8 months’ imprisonment.

d) Disqualification recalibrated

The disqualification required correction. The Court clarified that the total disqualification comprises the base ban plus an extension period reflecting the time actually to be served in custody. With the final custodial term at 6 years and 8 months, the respondent will serve half in custody (3 years and 4 months). The Court therefore ordered:

• Base disqualification: 5 years, plus
• Extension period: 3 years and 4 months (to mirror time in custody),
• Total disqualification: 8 years and 4 months.

This corrected an earlier extension period that had been calculated on a misunderstanding of time to be served.

3) Impact and Significance

This judgment is likely to have material effects on sentencing for fatal driving cases where fatigue and drugs coexist, particularly for professional drivers:

• Category A reach broadened in prolonged drowsy driving: Where a driver knowingly continues in a drowsy state for a sustained period, with clear markers of micro‑sleep and over‑correction, courts are encouraged to view the case as Category A culpability.
• Cross‑guideline “measured regard” endorsed: Sentencers may use the “careless under influence” guideline to cross‑check proportionality when sentencing for the more serious “dangerous driving” version, promoting coherence and consistency across related offences.
• Public service vehicle aggravation emphasised: Operating a bus—especially on public roads and near vulnerable road users—carries an elevated duty; breach will weigh heavily in aggravation even if passengers are not shown to be at risk at that moment.
• Mitigation bounded by objective evidence: Medical explanations (e.g., ADHD) will be given restrained weight where video and factual evidence demonstrate impairment inconsistent with the asserted mitigating effect of substances.
• Disqualification arithmetic clarified: The extension period should reflect time to be served in custody, promoting accurate and transparent disqualification orders at first instance.

Complex Concepts Simplified

• Unduly Lenient Sentence Reference: A procedure by which the Law Officers (here, the Solicitor General) ask the Court of Appeal to review a Crown Court sentence they consider too low. The Court first grants leave if it sees arguable error, then may increase the sentence if it agrees.
• Culpability Categories (A/B/C): Guideline bands that reflect how blameworthy the conduct is, separate from the harm (here, death). Category A is the most serious; Category B is mid‑range. The presence of factors from different categories requires weighing to determine which category the case “most resembles.”
• Cross‑Check with Another Guideline: Using a related offence guideline (here, causing death by careless driving under the influence) not to dictate the sentence, but to test whether the proposed sentence is proportionate relative to analogous conduct. The Court termed this “measured regard.”
• Aggravating vs Mitigating Factors: Aggravating factors make the offence more serious (e.g., vulnerable road user; public service vehicle; offending on a court order). Mitigating factors reduce seriousness (e.g., remorse; youth; positive character). Courts adjust up or down from a category starting point accordingly.
• Plea Discount: Early guilty pleas attract percentage reductions (up to one‑third) to reflect the utilitarian value of the plea—saving court time and sparing witnesses.
• Slip Rule: A mechanism by which a court can correct accidental slips or omissions in its own orders shortly after sentencing (e.g., where the disqualification extension was calculated on a mistaken assumption).
• Disqualification Extension Period: For driving bans following imprisonment, the ban often includes an “extension” equal to the time the offender will be in custody, ensuring the driving ban operates on release.

Key Takeaways

• Knowingly continuing to drive while repeatedly falling asleep over a substantial period, especially as a professional driver and while over the drug limit, satisfies Category A culpability for causing death by dangerous driving.
• Courts can and should use the “careless under influence” guideline as a cross‑check when calibrating sentences in dangerous‑driving death cases involving intoxication, ensuring proportionality across related offence frameworks.
• Where both Category A and Category B features are present, the guideline requires weighing them and choosing the category that most closely resembles the case, with within‑range adjustment to reflect any borderline features.
• Aggravation attaches strongly to public service vehicle driving, vulnerable road users, and offending on a court order; mitigation includes remorse, youth/immaturity, and positive character, but medical factors carry limited weight if contradicted by clear evidence.
• Disqualification orders must include an accurate extension period reflecting time actually to be served in custody, to avoid the ban expiring during imprisonment.

Conclusion

R v Asolo‑Ogugua re‑anchors sentencing for fatal dangerous driving where fatigue and drug impairment coincide. The Court of Appeal’s reclassification to Category A turns on the respondent’s sustained, self‑aware decision to continue driving despite repeated micro‑sleeps, corroborated by cab CCTV and witness accounts. By expressly endorsing “measured regard” to the “careless under influence” guideline as a cross‑check, the Court strengthens coherence across related sentencing frameworks and guards against under‑penalisation where the conduct clearly exceeds the careless threshold.

Doctrinally, the judgment provides a clear method: identify the correct culpability category by weighing overlapping factors; adjust within the range to reflect borderline features; then calibrate aggravation and mitigation before applying plea credit. Practically, it underscores the gravity of drowsy driving—especially by public service vehicle drivers—and ensures driving disqualifications are properly extended to take effect on release. The result is a principled, transparent sentence of 6 years and 8 months’ imprisonment and an 8‑year‑4‑month disqualification that better reflects the seriousness of the offending and the tragic loss of life.