Scottish High Court of Justiciary Decisons

Bell v. Her Majesty's Advocate [2003] ScotHC 13 (14 March 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hamilton Sheriff Principal E.F. Bowen, Q.C.	Appeal Nos: XC428/02 XC429/02 XC430/02 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL AGAINST SENTENCE by BRIAN BELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: A. Ogg, Solicitor Advocate; Wheatley & Co.

Respondent: C. Coutts, A.D.; Crown Agent

14 March 2003

1. On 4 June 2002 the appellant appeared before a sheriff in Glasgow on two indictments. On the first of these he was charged, among other charges, with contraventions of section 2 of the Road Traffic Act 1988 (as amended) (dangerous driving) and of section 5(1)(a) of that Act (driving with an alcohol concentration over the prescribed limit). His plea of guilty in restricted terms to the first of these charges and as libelled to the second was accepted by the Crown, which also accepted a plea of not guilty to certain other charges. On the other indictment the appellant was charged with contraventions of sections 103(1)(b) of that Act (driving while disqualified) and section 143(1) (driving without insurance). To both these charges he pled guilty. All these offences occurred on 13 March 2002. The court adjourned the diet until 2 July for reports.
2. At the time of committing these offences the appellant was subject to the unexpired portion (thirteen months) of two years and seven months detention which had been imposed on him in September 2000 for almost directly analogous offences. He had been released from custody on 31 December 2001. The present offences accordingly occurred about ten weeks after his release. His sentence was not due to expire until 15 April 2003. On 2 July 2002 the sheriff, in terms of section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, made an order that the appellant be returned to detention for a period, restricted for reasons which he explained, to twelve months. In respect of the first indictment before him he sentenced the appellant to two years detention on the first charge and to three months detention on the second, these to run concurrently with each other but to commence on the expiry of the re-imposed 12 months. In respect of the second indictment he sentenced the appellant to one years detention on the first charge and admonished him on the second, the sentence on the first charge to be consecutive to those imposed in respect of the first indictment.
3. Leave to appeal was granted in respect only of the consecutive nature of the sentence imposed for driving while disqualified.
4. For a man of his years (he is not yet 21) the appellant has a remarkable record of offending in relation to motor vehicles. It commences with a conviction in May 1998 for theft of a motor car and contraventions of sections 3 and 87(1) of the Road Traffic Act. Thereafter he was prior to the present offences convicted on seventeen occasions, very largely related to the use of motor vehicles. The charges on which he was convicted on those occasions included four for dangerous driving, six for driving without a licence, three for driving while disqualified and seven for driving without the requisite insurance. On the last of these prior occasions he was sentenced to various periods of detention, including 21 months for a contravention of section 2 of the Road Traffic Act. The court on that occasion had also re-imposed a part of an unexpired portion of a sentence earlier imposed.
5. The circumstances of the present offences were that shortly after 11 p.m. on 13 March 2002 police officers observed the appellant driving a motor car in a residential area of Glasgow. He had one female passenger. The officers recognised him as a disqualified driver. They positioned their vehicle behind the appellant's car and activated their blue lights in an indication to him to pull over. Instead he took off at high speed. He drove at about 70 m.p.h. for about three quarters of a mile in a 30 m.p.h. area. Having negotiated a roundabout and travelled a further distance, he veered on to the wrong side of the road and travelled over a grass verge to another road. He travelled down the wrong side of that road for about 100 yards, then veered to his right, mounted the pavement which divided the main road from a service road and braked violently to a halt. He and his passenger fled from the vehicle but were pursued on foot by the officers and apprehended. The appellant was smelling strongly of alcohol. At that time he was subject to at least three orders of disqualification. In particular on 18 September 2000 he had been disqualified for seven years for offences including dangerous driving, driving while disqualified, driving without insurance and failing to provide breath specimens.
6. No question arises in this appeal as to the appropriateness of the order re-imposing part of the unexpired portion of the earlier sentence or of the lengths of the individual sentences imposed in respect of the present indictments. The sentences imposed in respect of the contraventions of section 2 and section 103(1)(b) were respectively the maxima under the statute. The sole issue concerns the consecutive nature of the latter sentence.
7. In the representations made on behalf of the appellant when leave to appeal was being sought it was suggested, under reference to Nicholson v. Lees 1996 S.C.C.R. 551, that the imposition of a consecutive sentence was incompetent. Miss Ogg, who appeared before us on the appellant's behalf, however, acknowledged that that representation was unfounded. No question arose as to the competency of such a sentence. The only question was whether, having regard to the fact that the contraventions of sections 2 and 103(1)(b) occurred on the same occasion, it was fair to make the sentence on the latter consecutive. Reference was made in particular to Nicholson v. Lees at page 558D-E.
8. In his Note the sheriff tells us -

"In relation to the charges of dangerous driving and of driving while disqualified, I recognised that in ordinary course concurrent sentences might be imposed. However, although these offences share a common fact - the fact of driving - they are not of the same species facti. Each offence depends respectively on another essential fact which is irrelevant to the other offence - the standard of driving in the one and the state of being disqualified in the other. Each offence is capable of standing on its own, and committed together they enhance criminal culpability. As a matter of competency it seemed to me it was possible to impose consecutive sentences, and I saw a special reason so to do, namely the requirement to impose a sentence of sufficient length to protect the public from the danger caused by the appellant's repeated offending".

9. In Nicholson v. Lees the Lord Justice Clerk, delivering the Opinion of the Court of five judges stated, at page 560E-F -

"While there is no rule that sentences must be concurrent if they arise out of the same incident, the court may consider it appropriate in such a case that they should be concurrent. Subject to the requirement that separate sentences may be required for any statutory offence, and provided that in the event of an appeal all the charges would stand or fall together, the court may also consider it appropriate to impose a cumulo sentence in respect of offences arising as a course of conduct or arising from the same incident. Alternatively, the court may consider that consecutive sentences would be appropriate. We would add that where two or more offences are truly distinct in nature, or if they arise at different times and at different places, the court may well consider that consecutive sentences are appropriate in the circumstances. Ferguson v. H.M. Advocate [1995 S.C.C.R. 241] and McEwan v. H.M. Advocate [1995 S.C.C.R. 509] contain examples of charges which were thought to be sufficiently distinct to justify consecutive sentences, and we agree with the reasoning in these cases. Both were cases under solemn procedure and there was no question of the court imposing sentences which in aggregate exceeded its sentencing power".

10. In McEwan v. H.M. Advocate the appellant had been convicted of driving while disqualified and sentenced to nine months imprisonment. He was later brought before another sheriff for sentence in respect of convictions which had earlier been returned in respect of contraventions of section 178 of the Road Traffic Act (taking and driving away a motor car without the owner's consent) and section 170 of that Act (failure to report an accident). All these convictions arose out of the same course of events. They occurred on the same day immediate after that on which the appellant had been disqualified from driving. The sheriff who sentenced in respect of the latter offences had made them concurrent with each other but consecutive to the conviction in respect of driving without insurance. Having referred to a number of cases, Lord Sutherland, delivering the Opinion of the Court, observed at page 511D-F -

"The general principle to be extracted from these cases appears to be that, in the normal course of events, where offences of a road traffic nature arise out of the same occasion then sentences should be concurrent. It is not incompetent to impose consecutive sentences but the authorities indicate that before making sentences consecutive there should be some special factor to justify that course in the exercise of the sentencer's discretion. Speaking for ourselves, we find it slightly strange that even though these matters do arise on the same occasion, they should necessarily be the subject of concurrent sentences. There is a world of difference between driving carelessly, for example, on the one hand, and driving while disqualified in disobedience of the order of the court, on the other, and in principle we confess we see no valid reason why sentences should not be consecutive. However, we accept that the authorities to which we have referred appeared to indicate a contrary view".

Lord Sutherland, having noted that the offences had occurred on the very next day after the appellant had been disqualified from driving, continued -

"Having regard to the time scale in this case, we are entirely satisfied that it will be appropriate to mark the court's displeasure at the appellant's conduct by making the sentence for driving while disqualified run consecutively to the concurrent sentences on the other charges, because they are offences of an entirely different character, even though committed on the same date".

The court in Nicholson v. Lees expressly agreed with the reasoning in McEwan v. H.M. Advocate.

11. We share the view that there is a world of difference between driving carelessly and driving while disqualified in disobedience of the order of the court and that it is difficult to see why sentences for them should not be consecutive. However, in the absence of fuller argument, we also require to accept that the authorities may appear to indicate a contrary view. But the circumstances of the present case are somewhat special. The appellant was sentenced in September 2000 for offences which included driving while disqualified (the third occasion on which he had been convicted of that offence). He had been released from custody only some ten weeks prior to his again driving while disqualified. Having been sighted by police officers at some stage in the course of so driving, he not only failed to obey a signal to pull over but then, in an attempt to evade apprehension, embarked on a course of conduct which involved driving at a grossly excessive speed and otherwise in an extremely dangerous manner with significant risk to public safety. This was his fifth conviction within four years for dangerous driving. In these circumstances the dangerous driving on this occasion can, in our view, be seen to be sufficiently distinct from the driving while disqualified to allow consideration of consecutive sentences. In that situation and against the background of the appellant's record (in particular his repeated contraventions of each of sections 2 and 103(1)(b)) and the need to protect the public, the making of the sentences consecutive was in our view neither unfair nor excessive. The appeal is accordingly refused.