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Cite as: [2005] ScotHC HCJAC_12, [2005] HCJAC 12

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Her Majesty's Advocate v. Roulston [2005] ScotHC HCJAC_12 (15 February 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Mackay of Drumadoon

[2005]HCJAC12

Appeal No: XC624/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

APPEAL

HER MAJESTY'S ADVOCATE

Appellant;

against

THOMAS SAMUEL ROULSTON

Respondent:

_______

Appellant: Mitchell AD; Crown Agent

Respondent: Scott QC; Milligan, Telford and Morrow, Falkirk

15 February 2005

The conviction and sentence
[1] On 10 June 2004 at Edinburgh High Court the respondent pled guilty to the following charge:

"On 28 June 2003 you did cause the deaths of Elizabeth Carmichael Speedie or Barbour and Stuart David Campbell, both late of 43 Dounepark Way, Coatbridge, by driving a mechanically propelled vehicle, namely motor vehicle registered number R775 NOJ on a road or other public place, namely the southbound carriageway of the M73 Motorway at Tannochside, without due care and attention, and without reasonable consideration for other persons using the road, in respect that you did fail to keep said motor vehicle under proper control, fail to keep a proper lookout for other road users, fail to observe motor vehicle registered number M911 CDS then being driven by said Elizabeth Carmichael Speedie or Barbour, fail to keep a safe distance from said motor vehicle registered number M911 CDS, and cause motor vehicle registered number R775 NOJ to collide with the rear of said motor vehicle registered number M911CDS, cause said Elizabeth Carmichael Speedie or Barbour to lose control of her motor vehicle whereby said motor vehicle spun on the carriageway, mounted a grass verge and struck a kerb there, collide with a crash barrier causing damage to said vehicle and leakage of fuel which ignited and the fire took effect on said vehicle and said Elizabeth Carmichael Speedie or Barbour and Stuart David Campbell were so severely injured that they died there and further at the time you were driving said motor vehicle registered number R775 NOJ you were unfit to drive through alcohol: CONTRARY to the Road Traffic Act 1988, Section 3A(1)(b)."

This charge had been made in the alternative to a charge that, while under the influence of alcohol, the respondent caused the deaths by dangerous driving contrary to section 1 of the 1988 Act. On 26 July 2004, Lord Johnston sentenced the respondent to 3 years imprisonment and disqualified him from holding or obtaining a driving licence for a period of 10 years.

[2] This is an appeal by the Crown against the sentence of imprisonment on the ground that it is unduly lenient.

The facts
[3] The respondent was aged 37 at the time of the offence and was employed by a firm of joiners in Blackford, Perthshire. At about 7.30 am on 27 June 2003 he set off from his home in Larkhall and drove to Tillicoultry, where he worked for the rest of the day. At about 6.30 pm he joined some colleagues, including his employer, at the Blackford Inn. He had not eaten since about 2 pm. He drank there until about midnight. According to the Crown's information, he drank pints of Stella Artois lager and shots of vodka. His employer estimated that he had drunk about 10-12 pints. His employer, who lived nearby, twice offered him accommodation for the night because he was drunk. The respondent declined the offer on the pretext that his father would come to collect him. His employer told him that he would leave his house door open in case the respondent changed his mind.

[4] Later, the respondent set off from Blackford for home. Between 1 am and 2 am he reached the locus of the accident on the M73 at Tannochside, Lanarkshire. He had by then driven for about 40 miles. The locus was a straight, well lit, three-lane stretch of motorway. By his own estimate, the respondent was travelling at 70 to 80 mph. He drove straight into the rear of a car that was being driven in the inside lane by the deceased Elizabeth Barbour. Her can spun off the road onto the nearside verge and struck a crash barrier. The car burst into flames and Elizabeth Barbour and her passenger, Stuart David Campbell, were burned to death.

[5] The Crown had expert evidence that the impact between the upper part of the crash barrier and the petrol tank of the car had ruptured the tank; that barriers of this type had been involved in two road deaths in Strathclyde in the previous three years, and that they were no longer being used.

[6] The respondent was detained at the scene. He fell asleep in the police car on the way to the police station. His blood alcohol level was recorded at 71mgs/100mls, just over twice the legal limit. An expert opinion obtained by the defence indicated a probable consumption of 8 pints of Stella Artois, but possibly more.

[7] In the early afternoon of that day the respondent gave a taped interview to the police. In the course of the interview he said that he had had just a couple of pints, by which he said he meant three. He said that:

"Ah was drivin' and the next thing ah remember, a car pulled out and then ah went into the back of it and then it span away and ah span away and it went up in flames."

Later in the interview he said that he did not know how the accident had happened and that he could not really remember much about it at all.

[8] The respondent was at the time disqualified from driving, having been convicted at Glasgow Sheriff Court on 11 July 2002 of a contravention of section 5(1)(A) of the Road Traffic Act 1988 and, inter alia, disqualified for 18 months.

[9] Before the sentencing judge, there was no dispute as to the material facts, except on one point. In his plea, junior counsel for the respondent made the following comment.

"But it seems that is (sic) account was that he as (sic) driving along uneventfully and suddenly became aware of what he thought was a car coming across a lane into the lane in which he was travelling and thereafter a collision occurred and everything thereafter is quite accepted and is as narrated by the Crown" (Transcript 2, p 8).

The theory that the other car had crossed in front of the respondent was contrary to his final position at his interview. There was no independent support for it. On the contrary, it was contradicted by the expert examination of the locus, and in particular by the interpretation of the tyre marks, from which it appeared that the collision occurred in the inside lane.

The sentencing judge's reasons for the sentence
[10] The sentencing judge took into account the respondent's remorse and the apology tendered by his counsel. He also took into account the fact that the Crown had accepted "a lesser plea to the original charge, namely the alternative one of careless driving" (Report, p 2). In his Report he refers on this point to the "much more serious crime of dangerous driving" (p 3). He also took into account the fact that the crash barrier had apparently played a major role in the fatality. In his Report, he says that it was significant, in his view, that the Crown had not addressed the issue of the safety of the crash barrier and its link to the fatal accident (p 4).

[11] Nevertheless, he took the view that the predominant considerations were that the respondent had been drinking before the incident and that he was driving while under disqualification for drunk driving. The sentencing judge fixed the sentence of imprisonment after making a deduction of one quarter to take account of the respondent's plea of guilty, the fact that he had shown remorse and the fact that he had apologised to the families of the deceased.

Submission for the Crown
[12] The advocate depute submitted that the sentencing judge had erred in his approach to section 3A of the 1988 Act, that he had failed to give proper weight to a number of significant aggravating factors and that he had given undue weight to the design of the crash barrier as a mitigating factor. In his Report, the sentencing judge had referred to the offence as "careless driving," whereas the offence was that of careless driving while under the influence of drink or drugs. In taking that approach he had overlooked the fact that both section 1 and section 3A carry the same maximum penalty, which at that time was 10 years imprisonment (Road Traffic Offenders Act 1988, Schedule 2).

[13] In England the Court of Appeal had adopted the sentencing guidelines recommended by the Sentencing Advisory Panel for cases of this kind (R v Cooksley, [2003] 3 All ER 40, at paras [15], [25]). Reference to such guidelines had been approved by this court in HM Adv. v Macpherson (2004 SCCR 579, at para. [10]). Under those guidelines the primary consideration was always the culpability of the offender in all the circumstances of the case (ibid at paras [14]). Among the recognised aggravating factors were that the accused had been under the influence of alcohol; that he had disregarded warnings not to drive; that he had committed another offence or offences at the same time; that he had previous convictions for motoring offences, and that more than one person had been killed. This last factor, if reasonably foreseeable, was a seriously aggravating factor.

[14] The circumstances of this case signified a high degree of culpability. The dominant cause of the deaths was not the crash barrier. It was the drinking and driving. It was a matter of mere conjecture what would have happened if the barrier had been of a different design.

Submissions for the respondent
[15] Counsel for the respondent accepted that the respondent was solely to blame for the accident. She submitted that the sentencing judge had been correct in recognising a difference in gravity between a plea to the charge under section 1 of the 1988 Act and a plea to the charge under section 3A. The English sentencing guidelines should be approached with care, particularly since there was a danger that one factor, such as drink, might be taken into account more than once in the assessment of sentence. The essential aggravations in this case were the respondent's drinking, his previous record and the occurrence of the deaths. These had to be seen in the context of the lesser plea that had been accepted by the Crown. The amount of the sentence discount was not the subject of any ground of appeal. While the respondent had been offered overnight accommodation by his employer, he could not be said to have disregarded any express warnings. If the crash barrier had contributed to the deaths in any way, that must ameliorate the aggravations on which the Crown founded. The court also had to take into account, as mitigating factors, the respondent's remorse and his state of clinical depression. In all the circumstances, it could not be said that the sentence was unduly lenient.

Decision
[16] In our opinion, the sentence appealed against was unduly lenient and should be quashed.

[17] It is helpful, particularly in offences under United Kingdom legislation, to look at the guidelines applied by the English courts and to consider, to the extent that they are relevant, the specific factors on which those guidelines are based. But in doing so the court should not lose sight of its overall duty to assess the sentence that in all the circumstances of the case most justly reflects the culpability of the accused and the mitigating factors, if any, that are found to exist.

[18] It seems that the design of the barrier was the immediate cause of the fire; but that does not, in our view, mitigate the culpability of the respondent in driving under the influence of drink and in causing the collision in the first place. It is a matter of conjecture what the outcome would have been if the crash barrier had been of a different design.

[19] It appears that the sentencing judge was influenced by what he saw as a contrast in gravity between the alternative charge, which he described as careless driving, and the primary charge of dangerous driving. In our view, he misdirected himself on this point. The offence to which the respondent pled was the modern offence under section 3A, introduced by the Road Traffic Act 1991, of careless driving while unfit to drive through alcohol. We need not go into the background to that legislation. It is sufficient for the purpose of this appeal to say that in certain circumstances an offence under section 3A may be more serious than an offence at the lower end of culpability under section 1; and that an offence under section 3A, even if it involves only slight carelessness, may nevertheless be made extremely serious by the circumstances relating to the element of drink. One offence cannot be said to be necessarily less serious than the other. We are confirmed in this view by the fact that the maximum sentence of imprisonment is the same under both sections.

[20] The Crown has relied on numerous factors based on the English guidelines, such as the respondent's refusal of the offer of accommodation overnight, his untruthfulness in his police interview and his attempt to suggest that the deceased driver caused the collision. While these have some bearing on the culpability of the respondent, we consider that when all is said and done the predominant sentencing considerations are (a) that the respondent deliberately chose to drive for a considerable distance while he was under the influence of drink; (b) that his blood alcohol reading was over twice the legal limit; (c) that he drove while disqualified for a drink driving offence; (d) that on a well-lit straight stretch of motorway, at a speed of 70 mph or more, he drove straight into the rear of another car; and (e) that his conduct caused the deaths of two innocent road users. In our opinion, a sentence of 3 years was quite inadequate to reflect these considerations.

[21] We shall therefore allow the appeal and quash the sentence. We shall continue the appeal for a hearing on the sentence that it is to be substituted. At that hearing counsel for the respondent shall have the opportunity to make further representations in the light of this decision. Since we shall then be looking at the whole matter afresh, we shall invite the parties to address us on the question of the discount, if any, that is appropriate in the circumstances of this case. For this purpose, we shall require to know when the respondent first gave notice to the Crown that he was prepared to plead guilty to the alternative charge.