APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lady Cosgrove
Lord Johnston
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[2006] HCJAC 33
XC708/05
OPINION OF THE COURT
delivered by
LADY COSGROVE
in
APPEAL AGAINST SENTENCE
by
CRAIG ALEXANDER JAMES
LAING
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Appellant: J. Keenan, solicitor advocate; Belmonte & Co.,
Edinburgh
Respondent: M. Hughes, A.D.; Crown Agent
17 March 2006
[1] The
21 year old appellant pled guilty on 2 September 2005 at a preliminary hearing
in the High Court of Justiciary at Edinburgh to a contravention of the Road
Traffic Act 1988, section 3A(1)(b).
[2] The
circumstances of the offence were as follows.
Between 6.30 and 8.30pm on 18 December 2004, the appellant had been
drinking with friends at his home in Dunbar.
At about 8pm he decided
to drive to a shop in High Street, Dunbar. Also at about 8pm the 82 year old deceased, who suffered from poor
eyesight and from deafness and who walked with a stick, went to his local
public house in High Street, Dunbar, where he
drank two whiskies within the space of about half an hour. At about 8.30pm he left the hotel and began to walk across the High
Street from east to west. An eye witness
saw him continue to walk across the road as three cars came down the road
towards him. He walked behind the second
car and in front of the third. As he
approached the west side of the street he was struck by the third car which was
driven by the appellant. He was thrown
into the air and landed on the bonnet of the car. He was subsequently thrown onto the
windscreen and roof, and eventually slid back down onto the bonnet. The car drove for several car lengths before
stopping with the deceased lying on the bonnet.
When the car stopped he fell onto the road. It was a mild, dry night and driving
conditions and visibility were good. The
surface of the road was damp with dry patches.
Darkness had fallen but the street was lit by street lights as well as
Christmas lights.
[3] An
ambulance was called and paramedics found the deceased conscious, lying on the
roadway trying to move. He was taken to
the Edinburgh Royal Infirmary, where he was found to have suffered several
injuries. During the course of the next
few days he suffered two seizures, and on 21 December he died.
[4] A
post mortem examination concluded that his deafness coupled with the drink he
had consumed would have decreased his level of alertness and left him less able
to take evasive action. The pathologist
thought that the fact that he survived the initial impact indicated that the
speed of the vehicle had not been great.
A younger person suffering the same injuries would have had a greater
chance of survival.
[5] Police
officers examined the locus and the damage to the car. The damage did not indicate that the car had
been travelling at high speed. The
police officer who examined the impact damage estimated the vehicle's speed at
30-35 mph. The sentencing judge narrates
in his report that the Crown conceded that as the appellant approached the
deceased he was driving at a reasonable speed.
The libel of excessive speed was not however departed from since from
the time that the deceased ought to have been in the plain view of the
appellant, the appellant had continued to drive at the same speed.
[6] The
proportion of alcohol in the appellant's breath was 79mgs in 100mls of breath,
more than twice the legal limit.
[7] The
explanation provided by the appellant was that he was looking to his nearside
for a parking space and did not see the deceased until the point of
impact. It was conceded that, if he had
been keeping a proper lookout, he would have seen the deceased, who clearly had
no intention of stopping as he walked across the street.
[8] In
determining sentence, the sentencing judge took into account the appellant's
lack of any previous convictions and that he had shown genuine remorse and that
he would have to live with the death of the deceased, who had been known to
him, for the rest of his life. He
accepted that the appellant was a decent young man and that the effect on him
had been substantial, but after careful consideration came to the view that the
appropriate sentence was one of two years imprisonment (reduced from three
years to take account of the guilty plea).
[9] Before
us, Mr Keenan for the appellant submitted that the imposition of a custodial
sentence was excessive in the circumstances and that the alternative of
community service was an appropriate disposal.
Emphasis was placed on the appellant's first offender status, the fact
that he was a young man in full-time employment and from a stable and
supportive family background, his early guilty plea and his genuine
remorse.
[10] We recognise that the appellant is a young man of good
character who has been deeply affected by the tragic consequences of his
actions. We are of the view, however,
that where death ensues as a result of careless driving on the part of a person
who has consumed alcohol in excess of the legal limit, the gravity of the crime
will normally require the imposition of a custodial sentence. In the present case the appellant's blood
alcohol level was more than twice the legal limit. We do not consider that a community service
order would sufficiently recognise the seriousness of the offence. The appeal against sentence is accordingly refused.
