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Cite as: [2004] ScotHC 51

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Her Majesty's Advocate v. MacPherson [2004] ScotHC 51 (19 August 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord MacLean

Lord Osborne

Appeal No: XC291/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL

HER MAJESTY'S ADVOCATE

Appellant;

against

THOMAS MACDONALD MACPHERSON

Respondent:

_______

Appellant: McConnachie, A.D.; Crown Agent

Respondent: Prentice, Solicitor Advocate; Rollo Davidson & McFarlane, Cupar

19 August 2004

[1] The Lord Advocate has appealed against a sentence of 18 months imprisonment imposed on the respondent following his conviction of causing death by dangerous driving, in contravention of section 1 of the Road traffic Act 1988. The respondent was also disqualified for holding or obtaining a driving licence for a period of 8 years and required to sit and pass the extended driving test. On a separate indictment he pled guilty to a charge of driving while disqualified, for which he received a sentence of 6 months imprisonment to run concurrently with the other sentence of imprisonment, together with a further and concurrent disqualification for 8 years.

[2] According to the terms of the charge under section 1, the respondent caused the death of Gary James Thomas McMullan by driving a motor car dangerously and whilst he was under the influence of drugs, and drove the motor car at an excessive speed, failed to negotiate a bend on the road, lost control of the motor car and caused it to cross over the road, mount a verge, veer down an embankment and collide with a hedgerow, a fence and trees whereby the car was damaged and he was injured and Mr McMullan, then a passenger in the motor car, was so severely injured that he died there as a result of those injuries.

[3] The trial judge states in his Report that the circumstances of the case were as follows. On the evening of 7 February 2003 the respondent was at his home at Abernethy. He had no intention of going out and had smoked some cannabis. At about 10 p.m. Mr McMullan, who was his brother-in-law, called at his house. Both men were intensely interested in high performance motor cars and were close friends. The deceased had a powerful car which had been significantly modified. The respondent was aware of this. As a consequence the controls of the car were far more responsive than normal, and its performance as regards speed had been considerably enhanced. On or shortly before that day the deceased had fitted a new set of wheels to the car. However, he then noted that a knocking sound seemed to be coming from the wheels, particularly when the car was going round corners. After he arrived at the respondent's house the deceased asked him to come for a drive in order to see if he could help in tracing the nature and cause of the sound. The deceased and the respondent then travelled in the car from Abernethy to the Perth to Glenfarg road, and then southwards to the Bein Inn. During this journey the deceased swerved his car from side to side in order to let the respondent hear any sounds that might be coming from the car wheels. The respondent was unable to identify the source of the sound. The respondent and the deceased then agreed that the respondent would take over the driving of the car. The respondent drove back down the Glenfarg road to where the accident happened, a distance of about 2 miles. This stretch of road consisted of a series of moderate to sharp bends. At the end of the bends, where the accident occurred, the road was straight for about 200 yards. The respondent emerged from the last bend at or near the maximum speed at which the car could safely negotiate the bend. At the start of the straight the car went out of control and skidded sideways across the road, so that the passenger side struck a tree on the opposite verge. As a result of the crushing injuries which he received, the deceased died at the time or shortly thereafter. The respondent was also seriously injured, suffering a broken shoulder and other injuries which required hospital treatment. The trial judge said in his Report that it appeared likely that, as the respondent emerged from the last of the bends, he attempted to swerve the car to one side in order that the deceased might listen to the sound of knocking which he had reported as coming from the wheels. Expert evidence was in favour of the view that it was unlikely that inappropriate acceleration at that point could have caused the vehicle to swerve in the way in which it did.

[4] At the time of sentence the respondent was 27 years of age, single and unemployed. He had a 5 year old daughter from a previous marriage, whom he saw regularly and with whom he enjoyed a close relationship. He had a previous conviction in 2001 for speeding and having no insurance, for which he was fined and disqualified for 12 months. In August 2002 he was convicted for driving while disqualified, for which he was disqualified for 2 years. The disqualification was current at the time of the events with which the present case is concerned. The respondent also had been convicted in 1998 on two charges of contravention of section 5(2) of the Misuse of Drugs Act 1971.

[5] The trial judge states that he regarded the previous convictions as clearly significant aggravations. The respondent should have observed, appreciated and guarded against the dangers arising from the fact that he had smoked cannabis earlier in the evening which might have affected his reactions when driving, and from his unfamiliarity with the performance of the car. In mitigation he took into account principally that the period of time over which the dangerous driving had taken place was unusually and exceptionally short. He had driven the car without mishap for a distance of about 2 miles through a series of sharp to moderate bends. Expert witnesses for the prosecution and the defence had expressed no concern about his driving prior to the stage at which he emerged from the last bend on the road. The trial judge also took into account the fact that following the accident the respondent went to live with his widowed sister at her request. Each of them had considerable difficulty in coping with what had happened, but they provided significant consolation to each other. He also took into account the fact that, in addition to suffering injuries, the respondent had been distressed and remorseful for his conduct. Although it was of lesser importance, he also took into account that the respondent had not intended to drive that evening and had done so only at the express invitation, or at least with the express consent, of the deceased. He considered it appropriate to bear in mind to some extent that it was probable that the manoeuvre in which the respondent was engaged when the car went out of control was brought about either at the request, or with the consent, of the deceased.

[6] The Advocate depute submitted that it had been clearly intended by Parliament, in increasing the maximum sentence to 10 years, that causing death by dangerous driving should be strongly discouraged. He criticised in a number of respects the approach which the trial judge had taken. He emphasised that, whether the respondent's driving of the car arose from an invitation by the deceased or from his own suggestion, the respondent chose to drive in the knowledge that he had taken cannabis and was disqualified from driving. As regards the manner in which the respondent drove the car, the Advocate depute submitted that it was inherently dangerous. The respondent drove at an excessive speed and deliberately made the car swerve, although he accepted that this related only to the stage when he emerged from the last bend on the road. After referring to the fact that the respondent appeared to have negotiated a number of bends without mishap, the trial judge stated in his Report:

"Further, the quality of the dangerous driving itself could not be described as being at the highest end of the scale. That it was dangerous driving at all could only in the jury's mind have been arrived at because of his prior consumption of cannabis and his unfamiliarity with the vehicle in question".

The Advocate depute submitted that this last observation could not be correct: in the light of the jury's verdict, they must be taken as having been satisfied that the driving was itself dangerous within the meaning of section 1.

[7] The Advocate depute submitted that the sentencing judge had failed to give proper weight to a number of aggravating factors. First, the respondent had consumed cannabis prior to the accident. In that connection he informed the court that the finding of cannabis as an active ingredient in the respondent's body was based on a sample of his blood which was taken from him at 1.39 a.m. He had been found at the scene of the accident at about 10.45 p.m. In these circumstances the expert evidence that he had consumed cannabis 3-4 hours before indicated that he had taken it not long before 10 p.m. At the trial evidence was given that the consumption of cannabis could distort a driver's ability to perceive distances and could slow down reaction times. While he accepted that it could not be determined whether the accident would have been avoided if he had not consumed the cannabis, the fact that he drove while under its influence, as the jury had held, significantly aggravated the charge of dangerous driving. Secondly, there was the fact that the respondent had driven while disqualified. Thirdly, there were his previous convictions for road traffic offences and the misuse of drugs. The Advocate depute also submitted that the trial judge had placed undue reliance on factors which he regarded as mitigating the offence. It was not in dispute that the respondent had suffered shock and remorse at the death of his brother-in-law. He had suffered injuries, but it was doubtful whether they could be regarded as serious. It was unclear what the trial judge meant by saying in his report that the deceased "was well aware of the respondent's driving ability at the relevant time". It made no difference whether or not the deceased had confidence in his driving ability. The mitigation was neither substantial nor exceptional.

[8] Mr Prentice, who appeared as solicitor advocate for the respondent, reminded the court that the car had been modified in order to make its acceleration extremely responsive. The purpose for which the car was being driven was in order to test it. Driving it round the sharp and very sharp bends and before the scene of the accident called for a considerable amount of skill. It was likely that the accelerator was applied as the car came out of the last bend. As regards the consumption of cannabis, it could not be determined to what extent the respondent's ability to drive was impaired. The case was unique in respect of the short distance over which the dangerous driving had occurred. Due weight should be given to the view of the trial judge since he had had the advantage of hearing the evidence.

[9] Making all due allowance for the respondent's reaction to the accident in which he killed his brother-in-law we consider that the sentence of 18 months imprisonment imposed by the trial judge was unduly lenient. In the light of his remarks about the sense in which the jury must have regarded his driving as dangerous, we have some concern as to whether he took adequate account of its dangerous nature. We must proceed on the basis that the jury would not have convicted unless that driving in itself was dangerous within the meaning of section 1 of the Road Traffic Act 1988. That did not depend on the respondent's prior consumption of a drug or on his unfamiliarity with the car. The seriousness of his offence was aggravated by his previous convictions and the fact that he was driving while under the influence of the cannabis which he had consumed. It is of some importance that the respondent drove the car within a relatively short time after consuming the cannabis. While it is not possible, as the trial judge pointed out, to determine what was the precise effect of his consumption, it is plain that the presence of cannabis in the respondent's system increased the risk that he would not react as quickly as he should. To drive a car which had been modified in such a way that it was extremely responsive when he was in that condition was even more culpable.

[10] We are confirmed in our view that in all the circumstances the sentence was unduly lenient when we consider the decision of the Court of Appeal in R v. Cooksley [2003] 2 Cr. App 18, to which we were referred by the Advocate depute. In that case the Court set out guidelines for sentencing in respect of contraventions of section 1 of the Road Traffic Act 1988, approving with certain modifications the recommendations of the Sentencing Advisory Panel for England and Wales. At paragraph 26 the Lord Chief Justice, Lord Woolf, delivering the Opinion of the Court, suggested that sentencers should take as a starting point 4-5 years imprisonment for offences of higher culpability. These were cases where the driving had been more highly dangerous, as would be indicated, for example, by the presence of one or two factors such as the consumption of drugs, the commission of other offences at the same time and of previous convictions for motoring offences. We should add that, while these guidelines do not apply to Scotland, they provide useful examples of the significance of factors relevant to aggravation or mitigation in the individual case.

[11] Having taken into account the relatively short distance over which the dangerous driving occurred, and the conduct of the respondent since the accident, we consider that an appropriate sentence for the present case was 4 years imprisonment. We will accordingly quash the sentence of 18 months imprisonment and substitute that sentence therefor.