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Cite as: [2003] ScotHC 35

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Sharp v. Her Majesty's Advocate [2003] ScotHC 35 (03 July 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Kirkwood

Lord Macfadyen

Appeal No: XC716/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL AGAINST SENTENCE

ROBERT SHARP

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Drummond Miller

Respondent: D.J.T. Logan, ad hoc A.D.; Crown Agent

3 July 2003

[1] The appellant, Robert Sharp, stood trial in Hamilton Sheriff Court on an indictment containing a single charge in the following terms:

"on 21 August 2001, on Laburnum Road, Viewpark, near to its junction with Banyan Crescent, you ROBERT SHARP did drive motor vehicle registered number J 201 RNF dangerously and did drive at speeds of up to 60 miles per hour and did cause said motor vehicle to cross over onto the opposite carriageway and into the path of an oncoming motor vehicle registered number Y 134 TJW and did thereafter take avoiding action whereby your vehicle collided with the kerb, causing you to lose control of said vehicle which thereafter mounted the pavement there and collided with Stephanie O'Brien, Julie Ann Glancy and Fiona McGill, all c/o Viewpark Police Office and thereafter collide with a box, a pillar box and fence whereby said Stephanie O'Brien and Julie Ann Glancy were severely injured and said Fiona McGill was so severely injured that she died and you did cause the death of said Fiona McGill: CONTRARY to the Road Traffic Act 1988, Section 1."

[2] After trial the appellant was on 28 March 2002 found guilty, by the majority verdict of the jury, of that charge under deletion of the words "of up to 60 miles per hour" and substitution therefor of the words "well in excess of the speed limit".

[3] The sheriff deferred sentence until 18 April 2002 for the purpose of obtaining a social enquiry report. On that date, having considered that report as well as a psychiatric report and other information placed before him, the sheriff remitted the case to the High Court for sentence. On 3 May 2002 in the High Court the appellant was sentenced to seven years detention in a young offenders institution.

[4] The appellant appealed against conviction and sentence. The appeal against conviction was, however, abandoned, and the only submission made to us was that, although it was accepted that a substantial custodial sentence was appropriate, the sentence of seven years detention was, in all the circumstances, excessive. In advancing that submission, Mr Shead concentrated on the personal circumstances of the appellant and certain limited aspects of the circumstances of the incident. Before turning to consider Mr Shead's submissions, however, it is in our view necessary to take note of the whole circumstances of the incident and its tragic consequences.

[5] The incident happened at about 8.30 a.m. on 21 August 2001. The three girls mentioned in the indictment were standing near a bus stop on Laburnum Road, near its junction with Banyan Crescent. Fiona McGill was fifteen years of age. Stephanie O'Brien and Julie Ann Glancy were both thirteen. They were waiting for the school bus to take them to Cardinal Newman High School. It was the first day of the new school term.

[6] The appellant, who was then eighteen years of age, had just finished his round as a postman. He had passed his driving test about four weeks before. He was driving his Vauxhall Nova motor car, which he had bought on 13 August 2001. He turned right from Spruce Road into Laburnum Road. Witnesses spoke to the engine of his car revving as he negotiated the junction. He conceded that he was driving at 40 m.p.h. although the speed limit in Laburnum Road is 30 m.p.h. Witnesses described his driving as "very fast" and "speeding", and one seventeen year old boy gave evidence that his speed was "60 m.p.h. at least". Because there were cars parked by the kerb along his side of the road, the appellant was at first driving on the wrong side of the road as he drove along Laburnum Road. The row of parked cars came to an end at the first junction of Laburnum Road and Banyan Crescent (i.e. at the opposite end of Banyan Crescent from the junction at which the girls were standing). When he had passed the parked cars the appellant was able to return to his own side of the road, and did so.

[7] Another postman, James McAllister, a friend and work colleague of the appellant, was driving a van in the opposite direction on Laburnum Road. As the appellant drew towards McAllister's van, he swerved, for no discernible reason, onto the wrong side of the road and drove at speed directly at the van. At the last opportunity to avoid a collision, when his car was only a few feet from the van, the appellant swerved back onto his own side of the road. As he regained his own side of the road, the front nearside wheel of his car struck the kerb at an acute angle. The impact ruptured the tyre and buckled the alloy wheel. In addition, the nearside drive shaft was fractured, and the steering tract control arm was bent. That damage wholly deprived the appellant of the ability to control the direction of travel of the car. There was no evidence found at the scene that the appellant had attempted to brake, although the brakes remained in working order. The appellant's car mounted the pavement and struck the three girls.

[8] There was expert evidence on the subject of the speed at which the appellant was travelling when his car struck the kerb. In particular, a very experienced traffic officer, Police Sergeant Simpson, said that it was not possible from an examination of the real evidence to say exactly what the speed had been, but he expressed the opinion that the damage was not typical of a low speed impact. The damage and other circumstances all indicated a violent collision not typical of an urban crash.

[9] The Crown case at trial was that in swerving onto the wrong side of the road, driving directly at McAllister's van, then swerving away at the last minute, the appellant was "playing chicken". That interpretation was supported by witnesses. It appears also to have been accepted by the jury.

[10] The consequences of the incident were disastrous. Fiona McGill was fatally injured, and died in hospital two days later. Stephanie O'Brien suffered a pelvic fracture, an open femoral shaft fracture, and a de-gloving injury to the lower abdomen, pubic region, perineum and right thigh. The injuries were life-threatening, and have serious implications from a cosmetic and functional point of view. She has undergone several skin graft operations. There will be substantial scarring, with need for psychological counselling. Julie Ann Glancy suffered an unstable fracture of the left pelvis, extensive de-gloving injury to the left leg, an unstable fracture of the left tibia and fibula, an undisplaced fracture of the neck of the right humerus and a fracture of the lower right leg above the ankle.

[11] So far as the circumstances of the incident were concerned, Mr Shead invited us to note that the appellant accepted that he had been speeding, and did not adopt a position of denying all responsibility for the incident and its consequences. There had, however, been real issues as to causation; hence the trial. He drew our attention to the manner in which the jury had in their verdict modified the reference to speed, by deleting reference to speeds of up to 60 m.p.h. and substituting a reference to driving "well in excess of the speed limit". That alteration should, he submitted, be construed in the appellant's favour. The nub of the whole matter was speed. The fact that the appellant had crossed onto the wrong side of the road, driven at McAllister's van, then swerved back at the last minute would not have resulted in the collision with the kerb and the resultant loss of control, if it had not been for the speeding. The sentencing judge had correctly identified the case as one resulting from a "brief impulse", and not involving persistent fast or dangerous driving.

[12] Mr Shead submitted that the sentencing judge's comment about a tendency for sentences for causing death by dangerous driving to increase over recent years was inappropriate. He recognised, however, that that comment appeared to have been made in response to the assertion in the Note of Appeal that a custodial sentence of seven years was unprecedented. Mr Shead accepted that that assertion was wrong. We are content to leave out of account any question of whether there has been a trend toward higher sentences.

[13] Mr Shead referred to three previous cases in support of his contention that a sentence of seven years detention was excessive in the circumstances of the present case. He referred first to Williamson v HM Advocate (21 March 2002, unreported), in which a sentence of seven years imprisonment was held not to have been excessive. In that case, however, the appellant was considerably under the influence of drink. In Mackinnon v HM Advocate (28 March 2002, unreported) a sentence of nine years imprisonment was reduced to six years imprisonment. Again the appellant was under the influence of drink. In Murphy v HM Advocate (15 May 2002, unreported), a sentence of three years imprisonment was held not to have been excessive in a case which involved racing on the M74 motorway at speeds in excess of 100 m.p.h. Mr Shead submitted that, bearing in mind that the statutory maximum sentence was ten years imprisonment, sentences such as seven years detention should be reserved for cases of sustained dangerous driving, or cases where the offence was aggravated by intoxication.

[14] As we have already noted, a major part of Mr Shead's submissions was concerned with the appellant's personal circumstances. There is no dispute that those are entirely favourable. The social enquiry report and other material which was before the sentencing judge showed that the appellant comes from a close and supportive family background. He did reasonably well at school, and is in settled employment. He has never been in any form of trouble, and does not associate with any others who indulge in anti-social behaviour. His main leisure interest is football, which he plays at a serious level. His attitude to the offence is remorseful and to an extent empathetic with those whose lives he has impaired. To supplement the material which was before the sentencing judge, there were laid before us testimonials from a number of people who know the appellant in various contexts. The Hall Manager at Polmont Young Offenders Institution reports favourably on the appellant's behaviour in detention. He occupies a responsible position as reception pass man, and has taken advantage of the opportunity to work for a maths qualification and a sports leader's qualification. The other testimonials, all of which are favourable, were provided by the appellant's primary school headteacher, his parish priest, his local councillor, his superior in Royal Mail, and a retired fire officer who knows him in the context of football. All of that material reinforces what was accepted by the sentencing judge, namely that the appellant is a young man of excellent character.

[15] It is, of course, highly regrettable that circumstances should have arisen that have led to the imposition of a sentence of seven years detention on a young man of the appellant's background and character, who has never been in any form of trouble and has never previously experienced detention. In our opinion, however, in a case of this sort the leading consideration in determining sentence must be the gravity of the dangerous driving which the appellant committed. It requires to be made clear that causing death by dangerous driving will be severely punished by the courts. It is, of course, necessary to keep in mind that the maximum sentence is presently ten years detention or imprisonment. Each case thus requires to be fitted into a scale which accommodates the whole range of seriousness of offences of causing death by dangerous driving. We do not accept, however, that a sentence of seven years detention is only justifiable in cases aggravated by intoxication or by long sustained dangerous driving. It is right that, as the sentencing judge pointed out, it requires to be borne in mind that the consequences of dangerous driving may sometimes be out of all proportion to the gravity of the bad driving. We are not, however, persuaded that that is so in this case. The consequences were truly appalling. One young girl was killed, and two others very gravely injured. The impact of the incident no doubt spreads out to affect their families. Serious though those consequences were, however, they were by no means a freak result of momentary bad driving. It seems to us that it is wrong to characterise this as a case where the nub of the matter is speed. It is clear that the speed at which the appellant was driving played an important part in what happened. But the circumstances require to be viewed as a whole. We regard as at least equally important the fact that the appellant, although a very inexperienced driver, who had acquired his car only a week before, chose, apparently quite deliberately, to court danger by driving at his friend's van and swerving away at the last minute. Loss of control was a readily foreseeable consequence of such driving. The appellant was familiar with the locus and knew that it was a school bus route, and he must have known that children would at that time of day be waiting for the school bus. Deliberately to court the danger of losing control of his vehicle in that place and at that time must in our view be regarded as very grave dangerous driving indeed.

[16] In all the circumstances, notwithstanding the appellant's background and character, we take the view that this was a case in which the sentencing judge was fully entitled to take the view that the sentence which he imposed was appropriate. We reject the submission that it was excessive. The appeal is therefore refused.