Scottish High Court of Justiciary Decisons

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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Southwick [2005] ScotHC HCJAC_106 (27 September 2005)
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Cite as: [2005] ScotHC HCJAC_106, [2005] HCJAC 106

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Her Majesty's Advocate v. Southwick [2005] ScotHC HCJAC_106 (27 September 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General  Lady Cosgrove  Lord Emslie	[2005HCJAC106] Appeal No: XC353/05 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by HER MAJESTY'S ADVOCATE Appellant; against GARETH SOUTHWICK Respondent: _______



 



 

Appellant: Kennedy, A.D.; Crown Agent

Respondent: Duguid, Q.C.; Muir Myles Laverty, Dundee



27 September 2005

[1]      The Lord Advocate has appealed against a sentence of two years imprisonment imposed on the respondent on 7 April 2005 in respect of a charge of contravention of section 1 of the Road Traffic Act 1988, to which he had pled guilty. The sentencing judge indicated that in arriving at that sentence he deducted one year on account of the respondent's plea of guilty. He also disqualified the respondent for a period of four years, with a requirement to pass the extended test. The period of disqualification is not the subject of appeal.

[2]      Sometime after 1 a.m. on the morning of 3 October 2004 the respondent left a nightclub in Arbroath. When he asked a friend to give him a lift up the road so that he could get his car, the latter initially refused because he thought that as a result of drinking the respondent was not in a fit state to drive. However, he reluctantly agreed to give him a lift after the respondent said that he would get another friend, known as Steve, to drive instead. However, having retrieved his car, the respondent picked up the deceased who got into the front passenger seat. At about 1:40 a.m. the respondent was driving on an unclassified road. Following a straight stretch he approached a T junction with a road which had priority. His precise speed could not be determined, but it was a matter of agreement that it may have been between 52 and 63 mph, whereas a speed limit of 30 mph applied as he approached the junction. The respondent failed to give way at the junction and lost control of his car. It initially collided with a wooden boundary fence, and struck an electricity pole before crashing through a stone wall. It then travelled 8 feet down a bank and came to rest on its wheels in a small burn. The deceased was killed instantaneously in the crash. As a result of information received by the police the respondent was traced to an address in Arbroath. He was arrested after a breath test proved positive. He was taken to hospital where it was found that he had sustained undisplaced fractures of his pelvis and a section of his vertebrae. He was discharged from hospital two days later. Based on a blood sample taken from the respondent at the hospital, a back calculation indicated that at the time of the crash the proportion of alcohol in his blood was 128 milligrammes of alcohol in 100 millilitres of blood.

[3]      In presenting the appeal the Advocate depute placed particular reliance on three aspects of the respondent's culpability. First, he pointed out that the alcohol in the respondent's blood was over one and a half times the limit for an offence under section 5 of the Road Traffic Act 1988. The respondent had lied to his friend when he said that Steve would be driving. He ought to have known that he was unfit to drive, disregarding the obvious danger in doing so. He had been less than candid in his account to the police as to what he had drunk that night. Secondly, the Advocate depute pointed to the speed at which the respondent was driving at the point of impact. The sign which showed the start of the 30 mph limit was visible from a considerable distance along the unclassified road. There was a broken white line down the centre of the road. While it was represented to the sentencing judge on behalf of the respondent that he was not familiar with the configuration of the road, this was something which should have called for the exercise of greater caution on his part. Thirdly, the respondent failed to give way at the junction. His car travelled a significant distance beyond the junction before leaving the road. The Advocate depute drew attention to the decisions of this court in H M Advocate v MacPherson 2004 S.C.C.R. 579 and H M Advocate v Roulston 2005 S.C.C.R. 193.

[4]      For the respondent Mr Duguid submitted that the respondent's speed could not be described as greatly excessive. As the sentencing judge noted, the junction was not preceded by a " Give Way" sign or a white "Give Way" triangle marked on the road surface. The sign which showed the start of the 30 mph limit was only 30 yards from the junction. The camber on the unclassified road at the junction was to the left-hand side, so that corrective action was necessary to keep the car under control. It appeared that the respondent had either over-corrected or had hit the nearside verge and lost control. While accepting that speed was of some significance in what happened, the respondent was unfamiliar with the road, and came upon the junction quite unexpectedly. Mr Duguid pointed out that he had drawn to the attention of the sentencing judge that the location had been referred to as " an accident blackspot". He added that the respondent had a good driving record. His previous convictions were of no significance. He had shown genuine shock and remorse. At the time of the crash he was 24 years of age and had been driving since the age of 17. He had sustained injury as a result of the crash. He had been in a relationship with the deceased.

[5]      In his report the sentencing judge says he took the view that the respondent's case was not in the most culpable, or the least culpable, category. Mr Duguid had put forward a forceful plea in mitigation on his behalf. He took into account the respondent's personal circumstances. He states: " I also accepted that this was a road which the respondent was not familiar with and that he lost control near the edge of the 30 mph speed limit as he entered it. I took into account the ' accident blackspot' which had been mentioned by counsel". He selected a period of imprisonment at the lower end of the range of sentences which he regarded as reasonably open to him.

[6]      While the circumstances of the present case did not have features which might attract a high sentence, such as racing or a prolonged period of dangerous driving, the culpability of the respondent and his personal circumstances were, in our opinion, not such as to indicate that the lower end of the range of sentences was appropriate. The respondent drove along a relatively narrow unclassified road at an excessive speed which, even as he approached the junction, was still somewhere between 52 and 63 mph. He took no account of the 30 mph sign which must have been visible in his headlights for a considerable distance. We accept that the absence of any "Give Way" sign has also to be taken into account. However, we do not understand why the sentencing judge considered that the fact that the respondent was not familiar with the road was a factor in mitigation. It was, if anything, a factor which should have alerted the respondent to exercise greater caution. The fact that he did not do so may well be due to his having consumed alcohol to the extent that he was unfit for driving. We appreciate what has been said as to the effect of the incident on the respondent, and as to his feelings of remorse, although we note that he did not take any steps to seek assistance for his passenger either before or after leaving the scene of the accident. However, when all considerations are taken into account we cannot but conclude that it was unduly lenient for the sentencing judge to use as his starting point a period of three years imprisonment. It was, in our view, outwith the range of sentences which he could reasonably have imposed in the light of the whole circumstances of the case. Parliament has made it clear that offences against section 1 may attract substantial custodial sentences. We note that as from 27 February 2004 the maximum penalty was increased from 10 to 14 years imprisonment. In our view the appropriate starting point would have been a period of five years imprisonment.

[7]      It remains for us to consider what discount should be made in respect of the respondent's plea of guilty. Since we take the view that the sentencing judge's starting point was unduly lenient, it follows that it is open to this court to form its own view as to the appropriate discount. In any event the Advocate depute submitted that the discount adopted by the sentencing judge was excessive. The circumstances in which the respondent pled guilty are as follows. The respondent's plea of guilty was tendered on 11 March 2005 in the course of the sitting for which his trial was listed. The Advocate depute stated that the Crown had completed their preparations for the trial and had cited the witnesses. However, Mr Duguid submitted that the plea of guilty was timely. The respondent should have credit for the fact that on 23 February it was indicated to the Crown that, subject to the agreement of a narrative as to speed, he would not contest the section 1 charge. Following the receipt of advice from a road traffic expert for the defence, on 28 February agreement was reached on a narrative, and the Crown indicated that they would accept pleas of not guilty to the remaining charges on the indictment. In the whole circumstances we consider that a discount of one year would be appropriate.

[8]      We will accordingly quash the sentence of two years imprisonment and substitute one of four years imprisonment.