Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 43

HCA/2016/000053/XC

Lady Smith

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD BRACADALE

in

CROWN APPEAL AGAINST SENTENCE

by

HER MAJESTY’S ADVOCATE

Appellant;

against

RUSSELL MCKEEVER

Respondent:

Appellant:  B Erroch AD; Crown Agent

Respondent:  C Fyfe; Sol Adv, Bruce, Short & Co, Glasgow

1 April 2016

Introduction
[1]        On 7 December 2015 at the High Court at Aberdeen on an indictment in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 the respondent pled guilty to a contravention of section 1 of the Road Traffic Act 1988.  On 6 January 2016, after obtaining a criminal justice social work report, the presiding judge sentenced the respondent to 4 years imprisonment discounted from 6 years, disqualified him from driving for a period of 6 years and 8 months, discounted from 10 years, and ordered him to sit the extended driving test.  By note of appeal in terms of sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995 the Crown appealed against the sentence of 4 years imprisonment, contending that it was unduly lenient. On 1 April 2016 we refused the appeal, stating that we would later give reasons in writing, which we now do.

The charge
[2]        The charge narrated that the respondent caused the death of Colin Taylor by driving a motor car dangerously and having consumed so much alcohol that the proportion of it in his blood was not less than 226 mg of alcohol in 100 ml of blood. The charge went on to narrate that while his ability to drive was impaired through the consumption of alcohol the respondent drove on the opposing lane of the carriageway and collided with another motor car as a result of which Colin Taylor, aged 59 years, was injured and died and Julie Taylor, his wife, was severely injured and permanently impaired.

Previous convictions
[3]        The respondent had a number of previous convictions for road traffic matters.  In 1996, he was convicted of a contravention of section 143(1) of the Road Traffic Act 1988; he was fined £75 and his licence was endorsed.  In 2013, he was convicted of driving at excessive speed; he was fined £100 and his licence was endorsed.  In 2014, he was convicted driving while using a mobile phone; he was fined £100 and his licence was endorsed.  In 2014, he was convicted of driving at excessive speed; he was fined £120 and his licence was endorsed.   At the time of sentence the appellant’s driving licence was endorsed with a total of 9 penalty points.

Circumstances
[4]        The circumstances, which were agreed in a narrative placed before the sentencing judge, were as follows.  About 12 noon on Friday 31 October 2014 the respondent met his ex-wife Angela McKeever and her friend Claire Anderson at the Bell Tree public house and restaurant in Dundee for a pre-arranged lunch.  Whilst at the restaurant the respondent drank approximately a glass of wine.  After lunch they bought more wine and the respondent drove Mrs McKeever and Miss Anderson to Miss Anderson’s home address in his black Audi car registered number YX57 OPB. There, more wine was consumed by all.  At some point the respondent left, stating that he was going to get a brochure from his car.  In the event, he did not return to Miss Anderson’s house but, instead, drove away in his car and travelled on the road between Arbroath and Brechin. It was daylight, the weather was fine, bright but overcast, the road was dry and there were no adverse conditions.

[5]        About 3 pm the respondent drove through Colliston village and on towards Brechin.  As he approached the Leysmill crossroads, the respondent’s vehicle crossed the centre line of the road into the path of a Citroen Picasso, driven by Colin Taylor; his wife Julie Taylor was sitting in the rear near side seat.  The respondent’s vehicle collided with the Citroen killing Mr Taylor and severely injuring Mrs Taylor.

[6]        On 1 November 2014 Mrs Taylor underwent twelve hours of surgery to try to repair extensive fractures of both legs, both arms, as well as other injuries.  Her injuries included: a laceration to her left ear for which she received 10 stitches; a fractured left shoulder; a fractured left upper arm which later required the fitting of a metal plate; a fractured right arm which required the fitting of a metal pin; broken ribs, a broken femur in both legs; and several fractures to the right foot.  She remained in Ninewells Hospital until 20 November 2014 when she was transferred to Kincardine Community Hospital, Stonehaven, for ongoing treatment and rehabilitation.  She was released from hospital on 30 December 2015.  In addition to physical and mobility problems Mrs Taylor also suffered from a number of other difficulties.

[7]        The respondent was also taken to Ninewells Hospital where he was found to have a fractured shoulder; a cut to his elbow, which required two stitches; and a minor laceration to his liver.  He was kept in hospital for further observation.

[8]        A specimen of blood which was obtained from the respondent at 7.14 pm (about 6 hours after the collision) revealed an alcohol count of 226 milligrams of alcohol per 100 millilitres of blood, the legal limit in Scotland at the time being 80 milligrams per 100 millilitres of blood.

The sentencing judge’s approach to sentence
[9]        In determining the appropriate sentence the sentencing judge states that he had regard to the Definitive Guideline on Causing Death by Driving, issued by the Sentencing Guidelines Council in England and Wales.  He recognised the need to avoid a slavish adherence to its terms. He assessed the standard of driving involved as being such to have created “a substantial risk of danger”.  In assessing the further aggravating factors involved, he took into account the degree of intoxication and the fact that, under reference to his reply to police officers at the scene, the respondent was clearly aware of the extent of his consumption of alcohol.  The sentencing judge took into account the record of previous convictions.  He also took into account the severe injuries suffered by Mrs Taylor whose future quality of life had been significantly reduced.  The sentencing judge described Mrs Taylor’s victim impact statement as “an eloquent exposition of the devastating consequences for her of the collision”.

[10]      In mitigation, the sentencing judge was told that the respondent himself was having difficulty in coming to terms with the realisation of the effect of his actions on the lives of the others concerned.  He had expressed genuine and profound remorse and accepted full responsibility for his actions and their consequences.  That was reflected in a handwritten letter by the appellant which was tendered at the sentencing diet, and by the terms of the criminal justice social work report.  He was undergoing counselling and had expressed the intention never to drive again.  On his behalf, it was emphasised that at the relevant time he had not been driving at excessive speed and not been deliberately attempting an overtly dangerous manoeuvre.  He had not previously been convicted of dangerous driving or for driving while under the influence of alcohol.  He, himself, had been injured in the collision to the extent that he suffered a fracture to his shoulder and a minor injury to his liver.  In total, some 24 letters of reference were tendered on the appellant’s behalf, expressing confirmation of his good character and social contribution in relation to friends, work colleagues and family.

[11]      The sentencing judge states that taking into account his assessment of the standard of driving involved, and the relative weight to be given to the factors constituting aggravations on the one hand, and mitigation on the other, and taking care to ensure that the referable sentence was proportionate to the whole circumstances of the offence, he assessed the appropriate headline sentence to be a period of imprisonment of six years and a period of disqualification from driving of ten years. 

The ground of appeal
[12]      The ground of appeal averred that the trial judge had failed to give due weight to the gravity of the offence. The offence was aggravated by the respondent committing the offence whilst almost 3 times the legal limit for alcohol, he caused the death of one person and serious injury to another and this while having a record for speeding. In all the circumstances the headline sentence of 6 years was inappropriate. It was also averred that the level of discount applied was disproportionately high when considering the overall aspect on the sentence imposed.

Submissions
Crown
[13]      The advocate depute accepted that the sentencing judge had taken into account all the relevant factors and had narrated them in his report.  The sentencing judge had assessed the circumstances as giving rise to a substantial risk of danger, placing the offence in level 2 of the guideline.  The advocate depute did not seek to argue that the sentencing judge had erred in that approach.  He submitted that although the headline sentence looked at in isolation might not have been open to challenge, when it was considered in conjunction with the level of discount allowed, the resulting sentence was unduly lenient.  While the level of discount was very much a matter for the discretion of the sentencing judge, a discount of one third was excessive.  There had been a period of eight months between the appearance on petition and the tendering of the section 76 letter.  Under reference to Geddes v HM Advocate [2015] HCJAC 43, the advocate depute submitted that the sentencing judge should have reduced the amount of discount, taking into account the period which had elapsed between appearance on petition and the tendering of the section 76 letter. 

Defence
[14]      Mr Fyfe, who appeared on behalf of the respondent, explained that the respondent had appeared on petition in March 2015. In the charge on the petition there had been no reference to “not less than 226 mg” as the blood alcohol level and there had been no reference to “severe injury and permanent impairment” in relation to Mrs Taylor.  In September 2015 the respondent had offered to plead guilty in terms of the charge on the petition but this was refused because the Crown had further information.  In December 2015 a revised section 76 letter was submitted offering to plead guilty in the terms now in the indictment. The original section 76 letter tendered in September should be taken as the date when the respondent accepted his guilt. 

Discussion and Decision
[15]      Before interfering with the sentence imposed in this case we would require to be satisfied that the sentence was unduly lenient.  This means that it must have fallen outside the range of disposals which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate (HM Advocate v Bell 1995 SCCR 244, LJG (Hope) delivering the opinion of the court at p 250).

[16]      While it is appropriate in cases involving charges of causing death by dangerous driving or careless driving for sentencers in Scotland to have regard to the definitive guideline "Causing of Death by Driving" issued in July 2008 by the Sentencing Guidelines Council in England, too rigid or mechanistic an adherence to the guidelines is to be avoided (Neill v HM Advocate [2014] HCJAC 67). Sentencers should also have regard to existing Scottish precedent (Geddes v HM Advocate (supra)).  We note that in the present case the sentencing judge recognised the need to avoid “slavish adherence” to the terms of the guideline.

[17]      Broadly speaking, the expected approach in applying the definitive guideline is for the court to identify the description that most nearly matches the particular facts of the offence for which sentence is being imposed. This will identify a starting point from which the sentencing judge can depart to reflect aggravating or mitigating factors affecting the seriousness of the offence in order to reach a provisional sentence. The sentencing range is the bracket into which the provisional sentence will normally fall after having regard to factors which aggravate or mitigate the seriousness of the offence.

[18]      The offence guideline for causing death by dangerous driving identifies three levels of seriousness. Level 1 is to include the most serious offences, encompassing driving that involves a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the greater danger being caused to others. One of the examples by which such offences are likely to be characterised is the consumption of substantial amounts of alcohol leading to gross impairment; others include a prolonged, persistent and deliberate course of very bad driving. Level 2 is described as driving that created a substantial risk of danger and is likely to be characterised by various features, including driving whilst ability to drive is impaired as a result of consumption of alcohol.  The starting point in level 2 is 5 years custody and the range in which the provisional sentence would be expected to fall is 4 to 7 years.  Any deduction in respect of a plea of guilty should then be applied to the provisional sentence.

[19]      The level of alcohol in the blood of the respondent was, on any view, very high. There was, however, no indication of excessive speed or of the respondent having embarked on a dangerous manoeuvre such as inappropriate overtaking or of gross impairment.  Driving of that sort, taken along with the level of alcohol would almost certainly have placed the offence within level 1 of the guideline and indicated a significantly higher headline sentence.  Having regard to the absence of driving of that nature and the concession by the advocate depute that the sentencing judge had taken all relevant circumstances into account and had appropriately selected level 2 of the guideline as applicable, we consider that the sentencing judge’s selection of a headline sentence of six years imprisonment cannot be said to fall outwith the range of disposals open to him.

[20]      As to discount, we consider that the level of discount to be allowed in respect of the plea in this case was primarily a matter for the discretion of the sentencing judge. Having regard to the explanation of the history of the section 76 procedure we are unable to say that the sentencing judge erred in selecting the level of discount which he did. Even if it were open to criticism as being generous in the light of delay between appearance on petition and tendering of the letter, we are satisfied that it cannot be said to have resulted in an unduly lenient sentence.

[21]      For these reasons we refused the appeal.