Act: Jackson QC, Public Defence Solicitors Office

Alt: Mackay, Advocate Depute; Crown Agent

2 July 2008

The appellant pleaded guilty to a charge of culpable homicide narrating a series of appalling pieces of driving with a defective motor vehicle in the Colinton area of Edinburgh which culminated in the serious injury of a mother and the death of a child. The various aspects relating to the driving are as narrated in the extensive indictment.

In approaching the question of sentence the sentencing judge selected as his starting point a period of sixteen years. Thereafter applying, as he thought fit, certain dicta in the case of Du Plooy v HM Advocate 2003 SCCR 640 he selected a period of seven years out of that sixteen to reflect the need for the sentence to provide protection for the public. He thereafter, again apparently following Du Plooy, deducted that period from the total of sixteen years before applying any discount. Such discount was necessary having regard to the fact that the appellant had pled guilty at the earliest possible stage and had never challenged his guilt. He therefore allowed a discount in respect of the period to which he was applying it of one third. In the net result the sentence imposed by the sentencing judge was thirteen years.

Mr Jackson QC for the appellant submitted both that the starting point of sixteen years was too high having regard to the fact that while this was a very bad case of dangerous driving amounting to culpable homicide such was at almost the highest level for such a crime and should not have been selected in the context of this case. The appellant was totally consumed with remorse at what he had done.

In addition Mr Jackson submitted that the selection of the period of seven years to effect public protection was both wrong in principle and arbitrary in fact. It was wrong in principle he maintained because in a case of dangerous or bad driving the chances of repetition was such that there was no need for the public protection to be reflected in the sentence, certainly when there was no record on similar conduct. In any event the figure of seven years was simply plucked from the sky as he put it, had no logical basis and the trial judge had accordingly misdirected himself. Mr Jackson submitted that the discount should be applied to the whole of the sentence imposed since as he had already submitted the question of protection of the public did not arise in this type of case.

The Advocate Depute helpfully intervened to refer us to a recent case of Weir v HM Advocate 2006 SCCR 206 where a different approach to discount was taken in the context of dangerous driving and protection of the public.

As a conclusion of the opinion in that case by the Lord Justice General he said:

"We recognise that in this case a major element of the sentence imposed can properly be attributed to the need to protect the public. Accordingly there can be no question of the application of a discount of 25 per cent. In the whole circumstances we shall apply discount at one third of that percentage. Accordingly the appeal is allowed to the extent of quashing the sentence of two years imprisonment and substituting for it a sentence of twenty two months, being two months less than the custodial sentence would otherwise have been"

It is to be noted that that was a case of dangerous driving carrying a maximum sentence and furthermore the accused, Weir, had a similar conviction.

In seeking to determine this matter, which we do not find easy, we are satisfied that the imposition of a starting point of sixteen years was not excessive having regard to the discretion open to the sentencing judge and in particular having regard to the tragic and very serious circumstances of this case.

However, we are not persuaded that his approach to the issue of discount is correct or even appropriate. We recognise that the Du Plooy case does suggest that discount should not be applied to parts of a sentence of imprisonment which are designed to protect the public. However beyond that the case gives little assistance on that point.

At the end of the day we are obliged as a sentencing court to recognise that there is an element of public protection in this sentence of sixteen years. Reviewing the appeal in Weir as one way to deal with the matters, however we consider in this case that the appropriate method to be employed is to apply discount to the whole figure of sixteen years but not at one third, but rather at twenty five per cent to reflect the element of public protection in that rather broad way.

In the result this appeal is allowed to the extent of quashing the sentence of thirteen years and substituting one of twelve years.