Appellant: Whyte, Solicitor Advocate;  Beltrami & Co, Glasgow

Respondent:  Rodger, AD;  Crown Agent

8 July 2014

History of the case

[1]        The appellant was born on 17 May 1978.  He appeared on petition on 9 May 2013 on two charges.  The first charge narrated possession of a controlled drug namely cannabis resin, a class B drug, contrary to the Misuse of Drugs Act 1971.  The second charge was in the following terms:

“on 20 August 2012 on a road or other public place, namely the A83 road from Stronachullin, Tarbet to a point approximately 0.1 miles south of Erines Cottage, Erines, Tarbert, Argyll you JAMES GEORGE NEILL did cause the death of Natasha Clark, born 22 November 1994, formerly of 29 Oakhill, Tarbert by driving a mechanically propelled vehicle, namely motor car registered number SM53 YHB dangerously and, having consumed a quantity of Cannabis Resin, drive at excessive speed on said road, whereby you lost control of said vehicle and it skidded and struck a rock or similar object which caused damage to said vehicle and injuries to passengers therein, namely Sean Rory McGregor, Sandra Petra Frew or Harvey, both c/o Police Service of Scotland, Oban and said Natasha Clark, who was so severely injured that she died at Glasgow Royal Infirmary, Glasgow on 21 August 2012: CONTRARY to the Road Traffic Act 1988, Section 1.”

[2]        In due course, a trial date was set for a trial in the High Court at Paisley on 20 January 2014 on an indictment that libelled both charges.  On 9 January 2014 the terms of a plea were agreed.  That resulted in an accelerated diet in the High Court at Paisley on 17 January 2014 when the Crown formally accepted the appellant’s plea of not guilty to charge 1 and a guilty plea to charge 2 under deletion of the words “having consumed a quantity of Cannabis Resin”.  The appellant was convicted and the advocate depute moved for sentence and tendered a notice of previous convictions.  None of the previous convictions involved motoring offences.  The criminal record disclosed convictions at summary level on nine occasions before the appellant was 20, typically for disorder offences.  Thereafter the appellant remained conviction free for almost 15 years until a conviction on 27 August 2012 for a contravention of the Misuse of Drugs Act 1971 section 5(2) (cannabis resin) for which he was fined £70. 

[3]        At the accelerated diet, the advocate depute read the agreed narrative and referred to a number of productions including a map and various photographs.  A “drive through” video at 40 miles per hour was played to the court.  The judge in his report explained that the images supplemented the description of the locus, as given in the narrative, in that they showed a “road narrows” sign with a sign “oncoming vehicles in the middle of the road” and a further “slow” marking on the road surface slightly beyond the point where the crash happened in the appellant’s direction of travel. 

Summary of the facts

[4]        We take the summary of the locus description and the agreed circumstances leading up to the death of Natasha Clark and injury to the two other passengers from the detailed report of the judge which stated:

“Locus description

The locus is the A83 Lochgilphead to Campbeltown trunk road in Argyll, between Stronachullin and just south of Erines Cottage, Erines, Tarbert a distance in total of approximately five kilometres or three miles.  Here, the A83 is a single carriageway with two lanes divided by white road markings.  It runs generally north to south and it is subject to a 60 mph speed limit.  Throughout this stretch of road there are numerous corners and rises and dips in elevation.

The collision, which is described below occurred about 0.1 miles south of Erines Cottage.  At this point the road follows a long gradual left hand bend and then turns gradually to the right, rises and tightens into a right hand bend.  The road narrows slightly at the approach to this right hand bend.  There is a “SLOW” marking painted on the roadway at the approach to the last mentioned bend.

At the time of the incident, overhead conditions were cloudy and the road surface was slightly damp.  Visibility was good and it was daylight.

Incident

On the 20 of August 2012 Natasha Clark visited her friend Sandra Harvey at her home in Tarbert.  Sandra Harvey was a hair dresser and she had made an arrangement to visit a friend named Claire Bowness at the latter’s home in Stronachullin to do her hair.  Sandra Harvey’s boyfriend Sean McGregor was a friend of the offender and the offender had agreed to drive Sandra Harvey and Sean McGregor to Stronachullin and back to Tarbert.  At the invitation of Sandra Harvey, Natasha Clark joined them in the car.  They arrived at Stronachullin at approximately 18.00 hours and left shortly before 20.00 hours.

As they left to drive back to Tarbert the offender sat in the driver’s seat with the deceased directly behind him.  Sean McGregor sat in the front passenger seat with Sandra Harvey directly behind him.  The deceased was wearing a seatbelt.  As the offender drove off from Claire Bowness’s house he revved the car’s engine loudly, accelerated sharply and spun the wheels of the car. 

There was a marked difference in the manner of the offender’s driving compared to the initial journey to Stronachullin.  As the offender drove along the A83 he drove at excessive speed throughout the journey.  Sandra Harvey and the deceased were being flung about from left to right on the back seat as the offender sped along the road.  Sandra Harvey looked at the speedometer and saw that it was reading a speed of 110 miles per hour.  Sandra Harvey saw that Natasha Clark looked frightened.  Sandra Harvey held Natasha Clark’s hand and closed her eyes. 

Sean McGregor also realised that the offender was driving too fast and told the offender on two occasions to slow down and stop “pushing it”.  The offender continued south along the A83 and tried to cut a right hand bend but another vehicle was driving in the opposite direction to the offender and the offender was forced to return to his own side of the carriageway.  Sean McGregor said to the offender, “That wiggled a bit there James slow down”.  The offender ignored the witness McGregor’s pleas to slow down and he continued to drive at high speed.  Sean McGregor looked at the speedometer and noted that as the car drove along the stretch of road prior to Erines Cottage the speedometer read 110 miles per hour.

As the offender drove towards the locus the witness Coll McFarlane was travelling in the opposite direction in his white transit van.  The witnesses Davie Russell and Duncan Stewart were also in the van with the witness McFarlane.  As the witness McFarlane drove north on the A83 he passed the spot where the collision subsequently occurred and he noticed the offender’s car coming towards him in the opposite direction.  All of them were local to the area and knew the road.  They all remarked about the speed of the offender’s car.  Mr McFarlane and Mr Stewart estimated that the offender was travelling around 100 miles per hour.  Mr Russell commented that it was the fastest that he had seen a car travelling at on that road.

As the offender was passing the van driven by Mr McFarlane the car was approaching the part of the road where the road turned to the right and narrowed before tightening into a right hand bend.  The offender was driving well in excess of the speed limit and too fast for the bend ahead.  In the approach to this section the offender braked.  The car twitched to the left as he did so.  The offender braked again and this time the car twitched to the right.  At this point the offender lost control of the car and it began to spin in an anti-clockwise direction.  The car crossed from the southbound lane into the north bound lane.  The car was out of control and the direction of the spin caused the off side (driver side) rear of the car to go towards the roadside verge of the northbound lane.  The offside rear of the car next to where Natasha Clark was sitting, struck a large rock situated on the verge to the side of the northbound lane.  The collision with the rock caused significant intrusion into the car and Natasha Clark was severely injured as a result.  The car came back onto the roadway and came to a halt in the centre of the road. 

The speed of the offender’s vehicle was reduced by the braking referred to above and by the spinning motion of the car.  However, the car’s speed at the point of impact is estimated at still being in excess of motorway speeds – that is to say in excess of 70 miles per hour.

The offender and Sean McGregor quickly exited the vehicle, however, Natasha Clark and Sandra Harvey were both trapped in the rear of the vehicle.  Natasha Clark was unconscious and was lying on Sandra Harvey.  Sandra Harvey’s feet were trapped under the front passenger seat.  Sean McGregor ran back to the car were he pulled the front passenger seat forward and tried to help Sandra Harvey and Natasha Clark.  Sean McGregor shouted to the offender to get help at which point the offender was heard to say, “I wisnae speeding”.  The offender then used his mobile telephone to call Claire Bowness.  He told her that he had crashed the car and asked if she could come and get him. 

Shortly after the incident a number of other vehicles arrived on the scene and the drivers came to assist Sandra Harvey and Natasha Clark.  One of these drivers, Jacqueline Theze, called the emergency services.  While they were waiting for the emergency services to arrive Jacqueline Theze and a medical student, Eoghan Smith, assisted Natasha Clark.  She was unresponsive and her breathing appeared to stop on two or three occasions.”

[5]        As a result of the criminal behaviour of the appellant, described above, Natasha Clark a young girl of only 17 suffered multiple injuries including an unsurvivable brain injury.  Despite being airlifted to hospital and receiving medical care and ventilation she died on 21 August 2012 as a result of her injuries in consequence of the collision.  The passenger Sandra Harvey, suffered a fractured femur and suspected spinal injury and required hospital treatment.  The front seat passenger, Sean McGregor suffered minor injuries.  Injuries to the appellant were minor. 

The sentence imposed

[6]        At the adjourned diet for sentence, the court had available the victim impact statements, the criminal justice social work report and heard a plea in mitigation.  The main mitigation advanced was that the appellant had shown genuine remorse.  The solicitor for the appellant sought unsuccessfully to persuade the judge that the relevant sentencing guidelines indicated that the appellant should be sentenced on the basis that the offence fell within the level two guidelines for which the sentencing range is four to seven years in custody and not the level one guidelines for which the sentencing range is seven to 14 years.

[7]        In sentencing the appellant to a custodial sentence of nine years (108 months), discounted from nine years six months, backdated to 17 January 2014 to take account of the guilty plea, the judge made it plain in his report and in his sentencing remarks that he considered that the crash was the culmination of a persistent and deliberate course of very bad driving over a distance of three miles.  The speed of the vehicle was grossly excessive.  The extreme danger to the occupants of the appellant’s vehicle and to other road users was obvious.  He noted that the appellant continued in complete disregard of the pleas to slow down.  He criticised the speed of the car which was observed to reach 110 miles per hour on a road with numerous corners and rises and dips in elevation.  As a result and unsurprisingly, the passengers were being thrown from side to side.

Submissions on behalf of the appellant

[8]        We are grateful to the solicitor advocate for the written submissions in support of the appeal which he developed in oral submission.

[9]        There are two issues focussed in the appeal.  The first issue related to the length of sentence which was submitted to be excessive in all the circumstances.  The foundation of this submission depended on an interpretation of the English definitive guidelines which were applied in HMA v Noche [2011] HCJC 108.  It was submitted that the judge had erred in classifying the case as falling within the level one guidelines and that, properly interpreted, the facts fell within level two as the driving of the appellant created a substantial risk of danger characterised by greatly excessive speed.  It was submitted that if one considered the details of the guidelines, it was plain that the various listed factors, such as impairment by alcohol or drugs exemplified in the guidelines, were absent in this case.

[10]      The second issue advanced by the solicitor advocate related to the discount which he submitted was inadequate.  He submitted that in awarding a discount of approximately 5%, the judge had failed properly to reflect the utilitarian value of the plea of guilty by the appellant.  The timing of the plea had allowed for the cancellation of citations for witness and jurors and had avoided the necessity for witnesses to give evidence about the very distressing events.

Discussion

[11]      It has been recognised in a number of appeals before this court that it is appropriate in cases involving charges of causing death by dangerous driving to have regard in sentencing to the definitive guidelines entitled “Causing Death by Driving” issued in July 2008 by the Sentencing Guidelines Council in England.  That approach was recognised and followed recently, for example, in HMA v Noche [2011] HCJC 108.  In our opinion however that does not mean that the guidelines are to be interpreted and applied in a mechanistic way.  The sentencing guidelines consider that the seriousness of the offence should be assessed by reference to various factors “regarded as determinants of offence seriousness”.  Various examples of such factors are given.  There is also consideration of examples of aggravating and mitigating factors.  The guidelines consider that a structured approach should be applied which includes first identifying the level of description that “matches” the particular facts of the offence to identify an appropriate starting point in the three levels of seriousness.  It is envisaged that there then should be consideration of relevant aggravating factors, both general and specific to the type of offence, to enable the starting point in the sentencing level identified to be increased, sometimes substantially.  A consideration thereafter of mitigating factors and personal mitigation may result in a consequential reduction or even a sentence of a different type, depending on the circumstances. 

[12]      In sentencing the appellant, the judge set out in considerable detail the factors which he took into account albeit he did not follow a structured approach of the type recommended in the guidelines and did not identify “the starting point”.

[13]      Submissions were made to the sentencing judge and to this court that the correct approach was to regard the nature of the offence as falling within level two rather than level one.  The sentencing range for level two is four to seven years custody with a starting point of five years custody.  The sentencing range for level one is seven to 14 years custody with a starting point of eight years custody.  The major reason advanced on behalf of the appellant to locate the starting point in level two was that the offence committed by the appellant was essentially an offence involving greatly excessive speed.  We consider that categorisation does not properly reflect the seriousness of the offence committed by the appellant.  If one takes into account all the circumstances we consider that the sentencing judge was correct to categorise the driving as “a prolonged, persistent and deliberate course of very bad driving”.  The excessive speed must be considered, not in isolation, but in the context of the nature of the road which was well known to the appellant.  The driving involved speed which was observed to reach 110 miles per hour on a road with numerous corners and rises and dips in elevation.  The young passengers in the back of the car were being thrown from side to side.  In our opinion it is plain that the appellant deliberately ignored the rules of the road and road markings and warnings and drove over a period of some miles at a speed which should have been obvious to him that he placed at risk his passengers and other road users. 

[14]      We accept that it was the excessive speed combined with the other features which we have identified, which made it appropriate to treat this offence as a level one offence and we are of the opinion that should be borne in mind in considering the appropriate sentence. 

[15]      In addition we note that there were two additional aggravating factors of the type specified at page 11 of the sentencing guidelines, namely serious injury to a passenger in addition to the death and that the appellant disregarded pleas from a passenger to slow down.   The sentencing judge also recognised as mitigation genuine remorse by the appellant.  He regarded the appellant’s previous criminal record as neutral.  We agree with that general approach but it does not disclose how the sentencing judge arrived at the headline sentence which he selected.

[16]      In our opinion the only question therefor is whether having correctly identified the nature of the offence as a level one offence, the headline sentence of nine and a half years selected by the sentencing judge was excessive.  As we consider that it was the combination of circumstances which take this offence into the level one category, we consider that the appropriate “starting point” should not be higher than 8 years which with the aggravating factors would justify a sentence up to 9 years 6 months but that allows no reduction for mitigation in respect of the genuine remorse and isolation in his community which the sentencing judge recognised.  In our opinion therefore taking into account all the circumstances including mitigation, the appropriate headline sentence should be a custodial sentence of 8 years 6 months (102 months).

Discount

[17]      Turning to consider the question of discount, we accept the submissions on behalf of the appellant that in all the circumstances the utilitarian value of the guilty plea merited a discount of some 10%.  We consider that the sentencing judge did not give full effect to the obvious benefits of the guilty plea in a case such as this. 

Conclusion

[18]      To reflect our decision, we quash the sentence imposed and substitute a custodial sentence of 92 months.