Appellant: Taylor, Solicitor Advocate; Gilfedder & McInnes

Respondent: A Di Rollo, Advocate Depute; Crown Agent

24 January 2013

[1] On 13 June 2012, at Edinburgh High Court, the appellant pled guilty to two charges on a section 76 indictment. The charges were in the following terms:

"(001) on 8 June 2011 on a road or other public place, namely A75 Gretna to Stranraer Road, at a part thereof near to a junction with the U160w A75 at Glasnick Crossing to Low Glasnick Road, Newton Stewart you ANTHONY TALLARN GRANT did cause the death of John Edward Quinnin, formerly residing at 18 Front Street, Annitsford, Cramlington by driving a mechanically propelled vehicle, namely motor car registered number W363NVV without due care and attention, or without reasonable consideration for other persons using the road or public place and did drive said motor vehicle at excessive speeds, lose control of said vehicle, causing said vehicle to leave the roadway, strike a hazard marker post, trees and a telegraph pole, roll down an embankment until it came to rest upside down in marsh land and said John Edward Quinnin was so severely injured that he died, and you had consumed so much alcohol that the proportion of it in your breath, blood or urine at that time exceeded the prescribed limit: CONTRARY to the Road Traffic Act 1988, Section 3A(1)(b) as amended;

and

(002) on 8 June 2011 on a road namely the A75 Gretna to Stranraer Road at a part thereof near to a junction with the U160w A75 at Glasnick Crossing to Low Glasnick Road, Newton Stewart, you ANTHONY TALLARN GRANT did cause the death of John Edward Quinnin, formerly residing at 18 Front Street, Annitsford, Cramlington by driving a mechanically propelled vehicle, namely motor car registered number W363NVV and, at the time you were driving, the circumstances were such that you were committing an offence under Section 87(1) (driving otherwise than in accordance with a licence) and Section 143 (using motor vehicle while uninsured or unsecured against third party risks) of the aftermentioned Act; CONTRARY to the Road Traffic Act 1988, Section 3ZB."

[2] Sentence was deferred for the purposes of obtaining a Criminal Justice Social Work Report. On 11 July 2012 the sentencing judge, Lady Stacey, imposed a sentence of eight years imprisonment on charge 1 and 16 months imprisonment on charge 2. She ordered that the sentences should run concurrently and date from 13 June 2012. The sentencing judge also ordered that the appellant should be disqualified from holding or obtaining a driving licence for a period of ten years in respect of charge 1 and two years in respect of charge 2; and thereafter until the appellant had passed an extended driving test.

[3] The appellant appeals against the sentences of imprisonment imposed in respect of charges 1 and 2. In each instance the appeal is directed solely at the headline sentence, selected by the sentencing judge before she discounted the sentence to take account of the appellant's plea of guilty. No criticism is advanced of the level of discount applied in respect of those pleas of guilty. Nor is the appeal directed against the periods of disqualification from holding or obtaining a driving licence that were imposed.

[4] In moving for sentence against the appellant the Advocate depute tendered a schedule of previous convictions. This disclosed that the appellant had appeared in court on ten occasions between 2003 and 2010. The schedule also disclosed that the appellant had been convicted on several occasions of offences under the Road Traffic Act 1988. These included convictions for driving without the appropriate licence, driving whilst uninsured and a contravention under section 5(1)(a) of the Road Traffic Act 1988 for driving a motor vehicle with an excess of alcohol in his blood. According to the schedule of previous convictions, the appellant's last convictions for Road Traffic Act offences had been in 2009. The Criminal Justice Social Work Report subsequently disclosed that in 2011 the appellant had been convicted of a further contravention of section 5(1)(a) of the Road Traffic Act 1998, for driving whilst under the influence of alcohol. More generally the appellant's list of previous convictions included a number of hearings at which the appellant had admitted being in breach of community orders previously imposed by the court.

[5] The agreed narrative as to the facts giving rise to the two charges, which was read over to the sentencing judge, indicated that on Monday 6 June 2011 John Quinnin, who was killed in the subsequent accident, had travelled to the Dumfries and Galloway area with two friends, the appellant and Ross Morrison. The appellant was the owner and registered keeper of a Vauxhall Vectra motor car registration number W362 NVV. The appellant did not hold a driving licence. Indeed he has never held a full licence. Nor was the appellant insured to drive. Ross Morrison held a driving licence and he was insured to drive the appellant's car.

[6] The appellant, Ross Morrison and John Quinnin intended to spend a few days at a holiday park at Gatehouse of Fleet. They checked into a caravan there on the morning of 7 June. On Wednesday 8 June they spent the day in the local village. Around 8pm they went to the bar in the holiday park. They stayed there until approximately 11pm. During this time they bought five bottles of wine. They drank four of them in the bar and took the last bottle back to their caravan. Whilst in the bar they were well behaved. A member of the bar staff, who was on duty, described the three men as not appearing to be as drunk as she would have expected, given the amount of wine they had consumed. It appeared that the three men were drinking roughly equal quantities of the wine.

[7] When they got back to the caravan, Ross Morrison went straight to bed. He did so because he was drunk. He subsequently maintained to the police that he had been more intoxicated than his two friends. Sometime thereafter John Quinnin and the appellant got into the appellant's car. They set off in the car with the appellant driving and John Quinnin in the front passenger seat.

[8] Around 11.45pm a witness driving eastwards on the A75 road saw pieces of grass and bits of car on the road. He also saw the tail light of a car shining through the bushes and trees lying beyond what was for him the right hand side of the road. After stopping his car he and the driver of another car discovered the appellant's car lying upside down in marsh land to the south side of the road. The police and other emergency services were summoned. After their arrival John Quinnin's body was removed from the car. He was pronounced dead at the scene of the accident. The appellant was taken to Dumfries & Galloway Royal Infirmary, where police officers obtained from him a specimen of breath and a specimen of blood.

[9] Police collision investigators were able to determine that the accident had occurred whilst the appellant had been driving westwards on the A75 Gretna to Stranraer road. The road was single carriageway and had a speed limit of 60mph. The accident occurred at what is right hand bend for traffic travelling westwards. That bend followed a long straight stretch of road.

[10] The police collision investigators were of the opinion that the locus of the accident constituted a "bad bend". There had been many accidents previously. The speed limit of the bend was the national speed limit of 60 mph. There were no advance warning signs for the bend, although there were hazard markings on the roadway and hazard marking posts on the south verge of the road. Both the hazard warning lines and the hazard marking posts began some distance before the start of the bend. It was the opinion of the police that a driver travelling at 65-70 mph might feel uncomfortable going round the bend. They were of the view that a much more appropriate speed for the bend would have been one of 50mph. The collision investigators were of the opinion that the collision had been caused by the appellant travelling at a speed which they estimated at 86mph (+/- 10%), when the speed at which a driver would have experienced a loss of control at the bend would have been 76 mph (+/- 10%).

[11] The blood sample taken form the appellant was found to contain 92 milligrammes of alcohol in 100 millilitres of blood. The permitted limit is 80 milligrammes. It was not possible to carry out a back calculation as to the appellant's blood/alcohol level at the time of the accident, as there had been less than an hour between the last drink and the accident. It was however confirmed that the concentration of alcohol in the appellant's blood would have been greater than 92milligrammes per 100 millilitres. In that regard reliance had been placed on witnesses having observed the appellant and his two friends sharing four bottles of wine between them and the deceased's blood having been found to have an alcohol level of 170 milligrammes per 100 millilitres of blood.

[12] The sentencing judge had before her a Criminal Justice Social Work Report relating to the appellant, a letter from the appellant himself and a letter written by Mr McAndrew, the elder brother of the appellant's step-father. In his letter the appellant stated that he did not wish to try and justify himself or to avoid the consequences of his action. He indicated he understood that he could not and would never be able to soothe the pain, loss and stress he had caused John Quinnin's family. He went on to stress his remorse for what he had done. Mr McAndrew's letter dealt with difficulties the appellant had required to deal with at an earlier stage in his life. The Criminal Justice Social Work Report also dealt very fully with the appellant's background, his fascination for cars and driving since he had been very young, the problems the appellant had experienced as a younger man and his work record since leaving school.

[13] The sentencing judge took the view that these charges arose out of a very serious matter. She considered the driving had been at the high end of the range applicable to driving without due care and attention. That was because the appellant had been driving at a speed of approximately 86mph when he approached what was a dangerous bend in the road. The speed limit had been 60mph. It had been dark. The appellant had not been familiar with the area. The sentencing judge placed reliance on the fact that there had been hazard warning lines which the appellant must have ignored. The appellant had consumed a large quantity of alcohol. He had a bad record for driving offences, including two for driving whilst under the influence of drink.

[14] The sentencing judge indicates in her report to this court that she fully accepted that the appellant did feel remorse. She acknowledges that he will require to live with the fact that he had taken the life of his friend. However, she also took the view that the appellant had not learned lessons from his previous convictions for driving offences. In her view it was necessary to protect the public that the appellant be kept from driving for a considerable period of time. Hence the disqualification for a period of ten years and until the appellant passed an extended driving test.

[15] The sentencing judge states that in order to mark the seriousness of the appellant's crime she took the view that he required to be imprisoned for a lengthy period. She indicates that had he been convicted after trial she would have imposed a sentence of twelve years imprisonment on charge 1. That figure was discounted by one-third, on account of the appellant's plea of guilty. On charge 2, that relating to the appellant driving without licence or insurance, the sentencing judge indicates she would have imposed a sentence of two years imprisonment had the appellant been convicted after trial. That sentence was reduced to one of 16 months, on account of the appellant's plea of guilty.

[16] The sentencing judge advises that in deciding on the appropriate sentence on charge 1 she had regard to the Definitive Guideline issued by the Sentencing Guidelines Council in England and Wales. The section of the Definitive Guideline dealing with the contraventions of section 3A of the Road Traffic Act 1988 provides as follows:

"Causing death by careless driving when under the influence of drink or drugs or having failed either to provide a specimen for analysis or to permit analysis of a blood sample

Road Traffic Act 1988 (section 3A)

THIS IS A SERIOUS OFFENCE FOR THE PURPOSES OF SECTION 224 CRIMINAL JUSTICE ACT 2003

Maximum Penalty: 14 years imprisonment
Minimum disqualification of 2 years with compulsory extended re-test.

[17] As we have indicated the sentencing judge regarded the appellant's driving as having been at the high end of careless driving. She proceeded on the basis that the quantity of alcohol in his blood could not be precisely calculated. She did, however, note that the deceased had a blood alcohol level in excess of twice the legal limit for drivers. The information before her was that the appellant had apparently drunk much the same as his two friends had done. For these reasons she selected the starting point of eight years provided for in the Definitive Guideline for careless driving falling not far short of dangerousness, where the blood/alcohol level of the driver was in excess of double the permitted level.

[18] The sentencing judge regarded the appellant's conviction on charge 1 as having been aggravated by the fact that at the time of the accident the appellant was driving without a licence or insurance and also by his previous convictions, to which reference has been made. She acknowledged that the appellant was remorseful. She fully accepted that he understood the anguish that his actions had caused for members of his friend's family. However, taken in the round, she decided that the appellant had so far shown himself to be irresponsible when driving and that he needed to be dealt with severely. He had not so far learned his lessons from being convicted of road traffic offences and disqualified from driving. That was why she had imposed the sentences that she did.

Submissions on behalf of the appellant

[19] In opening his submissions on behalf of the appellant, Mr Taylor, solicitor advocate, stressed that it was fully accepted that a substantial custodial sentence was the only appropriate disposal in respect of charge 1. That was on account of the circumstances of the accident, the appellant's previous record of offending under the Road Traffic Act 1988 and, in particular, his previous convictions for driving with an excess level of alcohol in his blood. It was argued, however, that the careless driving in the present case was not prolonged or persistent. It was significant that charge 1 proceeded as a case based on careless driving rather than dangerous driving. Furthermore, the accident had occurred at a point in the road where there was a "bad bend" and there had been a number of previous accidents. It was submitted that neither the plastic bollards marking the grass verge on the nearside of the road nor the existence of an unbroken white line on the appellant's side of the carriageway as the bend was approached and continued round to the right represented a realistic warning of the dangerous nature of the bend. It was submitted that without local knowledge the appellant would have had absolutely no knowledge of the dangers the bend posed. It was submitted that mitigated the culpability of the appellant's driving.

[20] Mr Taylor stressed that the appellant had suffered the tragedy of losing a friend. He was acutely aware that he was the direct cause of that loss. He was remorseful and well aware of the devastating hurt and loss he had inflicted on the family and other friends of the deceased.

[21] Turning to the Definitive Guideline of the Sentencing Guidelines Council of England and Wales Mr Taylor accepted that it was neither incompetent nor erroneous for the sentencing judge to have regard to the terms of the Definitive Guideline. It was, however, submitted that the sentencing judge had erred in determining that the appropriate starting point in the guidelines was one of eight years, taken from the top of the right-hand column on page 13. Under reference to the submissions Mr Taylor had previously made about the nature of the road and the absence of adequate warning signs, he argued that the careless driving at the locus could not be said to have been prolonged or persisted in. In these circumstances, the more appropriate starting point would have been one of seven years taken from the top of the central column on page 13.

[22] It was accepted that there were two additional aggravating factors present, the commission of other offences and the appellant's previous convictions. They were offset to some extent by the additional mitigating factor arising out of the deceased having been a close friend of the appellant.

[23] Mr Taylor also submitted that whether the starting point chosen from the sentencing guidelines was eight years or seven years to increase that figure to reach a headline sentence of twelve years (before discounting it on account of the plea of guilty), had resulted in the sentence imposed on charge 1 being excessive. Not only had the aggravating factors not justified an increase to that figure, insufficient weight had been given to the mitigating factor that the deceased had been a close friend of the appellant.

[24] As far as the sentence on charge 2 is concerned, this was criticised as being excessive for the simple reason that the Judge had chosen as the headline sentence the maximum sentence available, before discounting that headline sentence to take account of the plea of guilty. That illustrated that the sentencing judge's approach to the question of sentence had been excessive in all respects.

Discussion

[25] In our opinion the sentencing judge was entitled to treat this case as one falling within the description of "careless driving falling not far short of dangerousness". Photographs available to the sentencing Judge and to this court indicate that the accident occurred at a bend which that was approached along a straight stretch of road. The police photographs available indicate that some distance before the bend began the road markings changed to include a stretch of solid white line. Plastic bollards were posted on the nearside of the road. To have driven along that stretch of road, at a speed of the nature calculated by the police collision investigators, constituted, in our opinion, careless driving falling not far short of dangerous driving. Driving at such a speed preceded the accident in which the appellant lost control of his car, causing it to leave the roadway, strike a hazard marking post, trees and a telegraph pole before it rolled down an embankment and came to rest upside down in marshland. Driving of that nature, which occurred after the appellant had been drinking for a number of hours, warranted the sentencing judge seeking guidance as to the appropriate level of sentence from the right hand column on page 13 of the Definitive Guideline.

[26] We are, however, persuaded that to increase the starting point of eight years from the table to one of twelve years imprisonment, before addressing the question of the discount for the plea of guilty was excessive. Clearly there were aggravating factors relating to the appellant's previous convictions for driving offences and his driving, that night, without licence or insurance. However the mitigating factor of the deceased having been a close friend of the appellant also required to be taken into account. In these circumstances we have reached the conclusion that the headline sentence from which the discount for the plea of guilty fell to be taken should not have exceeded eleven years imprisonment. Discounting the figure of eleven years by one-third to take account of the plea of guilty, we reduce the sentence on charge 1 to one of seven years four months.

[27] We are not persuaded that there is substance in the appeal in respect of the sentence imposed on charge 2. The appellant had a number of previous convictions for driving offences including driving otherwise than with the appropriate licence and driving without insurance. The appellant did so again. In doing so he showed a blatant disregard for the legal requirements with which he required to comply before he drove a vehicle on the public roads. The appeal against the sentence imposed in respect of charge 2 is accordingly refused.