Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 91

HCA/2015/003484/XC

Lord Brodie

Lord Malcolm

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST SENTENCE

by

MICHAL DULAS

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Paterson, sol adv;  Paterson Bell, Solicitors

Respondent:  M Hughes, AD;  Crown Agent

16 February 2016

[1]        This is the appeal of Michal Dulas who pled guilty at a continued first diet in Forfar Sheriff Court on 21 October 2015 to an indictment containing the following charge:

“On 18 July 2014 on a road or other public place, namely the A937 Montrose to Craigo Road, near to its junction with the U438 road to Logie you MICHAL DULAS did cause serious injury to [a named other driver] by driving a mechanically propelled vehicle namely a motor car [of specified registration number] and did repeatedly move into the opposing carriageway and did thereafter again move into the opposing carriageway and overtake vehicles on a blind right hand bend when it was unsafe to do so and did collide with another motor car [of specified registration number] whereby the driver of said motor car sustained severe physical injuries CONTRARY to the Road Traffic Act 1988, section 1(a)”

[2]        On 18 November 2015 the appellant appeared before the sheriff for sentencing.  The sheriff having considered a criminal justice social work report and heard a plea in mitigation sentenced the appellant to 27 months imprisonment explaining that that period was discounted from 36 months, having regard to the plea of guilty.  He also disqualified the appellant from holding a driving licence for a period of 5 years. 

[3]        In the grounds of appeal the circumstances of the appellant are set out.  He is a Polish national and now a United Kingdom resident employed in Scotland as a car mechanic.  He is the breadwinner for his wife and two children.  He is a first offender, therefore having the protection of section 204 of the Criminal Procedure (Scotland) Act 1995.  The grounds of appeal go on to narrate that the appellant is remorseful and has taken full responsibility for his actions.  He is said to have a favourable criminal justice social work report.  It is said that there were no aggravating circumstances involved in the accident.  It is recognised that according to the criminal justice social work report the appellant has no needs which might be addressed by community payback order and there were problems with language which might affect his doing unpaid work but nevertheless the appellant expresses his willingness to cooperate with a community disposal.

[4]        Appearing on behalf of the appellant, Mr Paterson developed submissions based on the grounds of appeal and the Form 15.16 which had been recently lodged.  He reminded the court of the circumstances of the appellant having come from Poland in February 2014 to join his family who had come to Scotland previously.  The appellant worked as a motor mechanic and should the court allow the appeal to the extent of substituting a non-custodial sentence, Mr Paterson advised that employment remained available to him.  Mr Paterson stressed that the appellant had no previous convictions.  Mr Paterson accepted that the circumstances which had led to the charge to which the appellant had pled guilty constituted “terrible driving” but nevertheless it should be regarded as a catastrophic error of judgement.  There was an absence of any of the aggravating circumstances which can sometimes be associated with such cases.  Mr Paterson’s primary submission was that having regard to the absence of previous convictions and the appellant’s history as someone in employment, who was the breadwinner for his family, custody was an inappropriate disposal.  The appellant was willing to carry out unpaid work as part of a community payback order.  If the court were not persuaded that a custodial sentence was inappropriate, Mr Paterson invited the court to reduce the sentence imposed.

[5]        In the sheriff’s report as well as a narrative of the plea in mitigation which included the points which Mr Paterson made before this court, there is information relating to the accident.  The sheriff considered it was significant that the appellant had been attempting to overtake two cars going into a blind bind.  The sheriff also drew attention to the very significant injuries sustained by the driver of the oncoming car.  Without claiming this to be a comprehensive account we note from the sheriff’s report that the other driver sustained bilateral femur fractures, ligamentous injury to his right ankle and a metatarsal fracture.  In hospital he was found to have a pneumothorax.  He suffered from surgical emphysema.  In July 2015 he was still suffering from discomfort and tenderness and recurring pain.  The sheriff drew attention to what appears in the victim impact statement which the members of this court have also read.  Again without pretending that this is a comprehensive summary, we have noted that the other driver is no longer able to play with his young daughter, and is unable to follow the sporting activities which he previously had done.  He finds it difficult to walk up hills. He cannot lift heavy objects.  He suffers from post traumatic stress disorder.  This has impacted on his ability to work and indeed at the time of concluding the victim impact statement he was only receiving 50% of his wages because of the difficulty that he was experiencing. 

[6]        We considered carefully everything that was said on behalf of the appellant.  We accepted as Mr Paterson encouraged us to do, that an important feature of the case is that the appellant is a person of good character with no previous convictions.  It was also true to say, as Mr Paterson did say, that many of the aggravating features found in cases of dangerous driving were absent here.  However, the appellant pled guilty to dangerous driving which caused very significant injury and continuing disability to another driver who was entirely an innocent party.  Parliament has provided that in cases of this sort the court may impose a sentence up to 5 years imprisonment.  It is because of the impact on the other driver and the injuries and disability that he has suffered that we conclude that contrary to Mr Paterson’s primary submission, this is a case where there is no alternative to a custodial sentence.  The sheriff was quite correct about that.  The question then came to be what that sentence should be.  We saw the force of Mr Paterson’s submission that where the maximum sentence is 5 years imprisonment and when regard is had to the driving in this case and the absence of aggravating factors as listed by Mr Paterson, a starting or headline figure of 3 years imprisonment is excessive.  We accordingly will allow the appeal to the extent of reducing the custodial term.  The sentence imposed by the sheriff will be quashed.  We shall substitute a sentence which is calculated on the basis of a headline or starting figure of 24 months imprisonment and we will apply to that period, the same level of discount as was allowed by the sheriff.  That has the result that the sentence imposed by the court will be one of 18 months imprisonment which will run from the same date as the date imposed by the sheriff which we understand to be 18 November 2015 when the appellant appeared for sentencing, having previously been on bail.