APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lord Philip	[2012] HCJAC 12A Appeal No: XC432/12   OPINION OF THE COURT   delivered by LORD MACKAY OF DRUMADOON   in   APPEAL AGAINST SENTENCE   by   JAMIE ANTHONY FLEMING   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: Paterson, Solicitor Advocate; Paterson Bell, Edinburgh

Respondent: A Di Rollo, Advocate Depute; Crown Agent

 

24 January 2013

 

[1] On 11 June 2012 the accused pled guilty to two charges under the Road Traffic Act 1988 ("the 1988 Act"). The charges were libelled on a section 76 indictment. Charge (1) involved a contravention of section 3ZB of the 1988 Act (causing the death of his passenger by driving a motor vehicle at a time when he was committing the offence of using a motor vehicle whilst uninsured) and charge (2) a contravention of section 3A(1)(b) of the 1988 Act (causing the death of his passenger by driving without due care and attention, having consumed so much alcohol that the proportion of alcohol in his blood exceeded the prescribed limit).

[2] In moving for sentence the Advocate depute tendered a schedule of previous convictions. This indicated that the appellant had previously been convicted of a contravention of section 3 of the 1988 Act, in respect of which he had been fined. The Criminal Justice Social Work Report, which was subsequently prepared, disclosed that prior to 18 March 2011 the appellant had also received two warnings from the Fife Constabulary in relation to "anti-social use of the vehicle due to his manner of driving".

[3] On 11 June 2012, sentence was deferred. On 19 July 2012, the sentencing judge, Lady Stacey, imposed a sentence of 6 months imprisonment on charge (1) and one of 5 years imprisonment on charge (2). She also disqualified the appellant from holding or obtaining a driving licence for a period of 6 months on charge (1) and for a period of 8 years on charge (2); and thereafter until he has passed the extended driving test. The sentencing judge ordered that the sentences on charges (1) and (2) should run concurrently with each other and date from 19 July 2012.

[4] When imposing sentence, the sentencing judge advised that, on account of the appellant's pleas of guilty, the sentences of imprisonment had been reduced in terms of section 196 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). They had been reduced from a headline sentence of 9 months in respect of charge (1) and one of 7 years in respect of charge (2). For the same reason she reduced the periods of disqualification from holding or obtaining a driving licence from one of 12 months on charge (1) and one of 12 years on charge (2).

[5] The appellant has appealed against the sentence imposed in respect of charge (2). It is argued that both the sentence of imprisonment and the period of disqualification from holding or obtaining a driving licence were excessive. Charge (2) was in the following terms:

"(2) on 18 March 2011 on a road or other public place, namely the Southbound Carriageway of the Perth to Inverkeithing Road (M90) at its junction with the Southbound slip road leading from Edinburgh Road, Perth and Broxden Roundabout, Perth and Kinross you JAMIE ANTHONY FLEMING, did cause the death of Ricky James Brown, 12 Mugdrum Place, Newburgh, Fife by driving a mechanically propelled vehicle, namely motor car registered number MA 02 NEU without due care and attention, or without reasonable consideration for other persons using the road or public place in that you did drive at excessive speed, fail to negotiate a left hand bend, as a result of which you did lose control of said vehicle which mounted the near side kerb and eroded the safety barrier, overturning on one or more occasions before coming to rest on the roadway causing injury to yourself and to the said Ricky James Brown who was so severely injured he thereafter died in Ninewells Hospital, Dundee, and having consumed so much alcohol that the proportion of it in your blood was at that time 140 milligrammes of alcohol in 100 millilitres of blood which exceeded the prescribed limit, namely 80 milligrammes of alcohol in 100 millilitres of blood: CONTRARY to the Road Traffic Act 1988, Section 3A(1)(b) as amended."

 

[6] The Advocate depute presented the sentencing judge with an extensive narrative of the circumstances giving rise to the commission of charge (2). It can be summarised as follows. Around 18.15 hours on 17 March 2011 the appellant contacted his friend, Ricky James Brown. They both resided in Newburgh. They arranged to travel into Perth and meet up with a mutual friend, Ross Anderson, with the intention of going to a public house in Perth to watch a football match on television. The appellant set off from his home, driving his Ford Focus ST motor car. He collected Ricky Brown from his home address and subsequently, when they reached Perth, picked up Ross Anderson. The appellant then parked his car. The appellant and his friends watched the first half of the football match in one public house and the second half of the match in another. In the first public house, the appellant consumed a pint of lager. In the second public house the appellant and Ricky Brown returned from the bar on three or four occasions with what appeared to be mixtures of spirits and soft drinks mixtures and on another occasion with a shot of spirits. Once the football match had finished, the three men walked to a restaurant where the appellant had something to eat. Ross Anderson then left the company to travel home by bus. Following his departure, the appellant and Ricky Brown then walked to a third public house, where they each had a further alcoholic drink. Sometime later, having been refused entry to a fourth public house, the appellant and Ricky Brown then returned to the appellant's car. The appellant drove the car to another car park, at the South Inch in Perth, where he parked. Around the same time Michael Davie drove his vehicle into the same car park. A brief discussion took place involving the appellant, Ricky Brown and Michael Davie. A few minutes later, Michael Davie drove out of the South Inch Car Park and was immediately followed by the appellant's car, with the appellant driving and the deceased in the front passenger seat.

[7] On reaching the top of Edinburgh Road, Perth, the appellant accelerated hard. He overtook Michael Davie's vehicle, before cutting back in front of him and driving onto the M90 southbound slip road. As he drove down the slip road, the appellant continued to accelerate, as he heading towards the southbound carriageway of the M90 Perth to Inverkeithing motorway. Michael Davie lost sight of the appellant's car as it pulled away from him.

[8] As Michael Davie drove down the slip road and approached its junction with the M90, he saw a cloud of dust in the air ahead which he required to drive through. He then noticed small stones bouncing off the bonnet of his car. Through the dust he saw the headlights of a car, which he realised was rolling in the road ahead of him. Michael Davie brought his own car to a halt, activated its hazard warning lights and called the emergency services on his mobile phone. By this time it was shortly after midnight on 17 March 2011.

[9] Michael Davie ran over to the vehicle he had seen and realised that it was the appellant's car. The appellant's car had come to rest on its wheels in the nearside lane of the motorway. It was extensively damaged. It was apparent that Ricky Brown was unconscious, although making breathing noises. Ricky Brown was removed to hospital and his life was pronounced extinct early in the morning of 19 March 2011.

[10] The appellant was treated at the scene of the accident for injuries he sustained. When he was subsequently taken to Ninewells Hospital he was found to be suffering from lacerations to his right hand and left forearm, a broken finger and several minor cuts and abrasions on his arms, legs and face.

[11] Around 0315 hours on 18 March 2011 a sample of blood was taken from the appellant. On subsequent analysis it showed an alcohol reading of no less than 84 milligrammes of alcohol in 100 millilitres of blood. An alcohol back-calculation was carried out. This revealed that at the time of the accident the appellant's blood alcohol reading would have been 140 milligrammes of alcohol in 100 millilitres of blood. The legal limit is 80 milligrammes of alcohol in 100 millilitres of blood.

[12] At 13.45 hours on 19 March 2011 the appellant attended at the Police Headquarters in Perth on a voluntary basis. He was interviewed in relation to the events of 17 and 18 March 2011. In the course of the interview he stated that during the evening of 17 March he had consumed 3 pints of lager, a vodka and coke, a shot of unknown spirits and had sipped one half of a vodka and coke.

[13] During the interview, the appellant provided a description of events leading up to the accident. He stated that on entering the slip road leading from Edinburgh Road to the M90 he was picking up speed when he went to change from fourth gear up to fifth gear. He stated that he encountered problems and went into third gear, without intending to do so. He explained that this was due to a fault with the knob at the end of the gear-stick, which would turn slightly from left to right. He stated that he then looked down at the gear-stick to rectify the problem. On looking back up again he appreciated that he was now off course. He had attempted to rectify this, but had thereafter lost control of his car.

[14] During the course of this interview the appellant indicated that he believed that he had been doing 75 mph at the time of the accident. He stated that there were no hazards on the carriageway nor any road defects he could see. He explained that he had been the owner of the Ford Focus car for a week. The car did not have any defects that he was aware of, other than the knob on the gear-stick twisting. He also explained that he did not hold any current insurance for the vehicle.

[15] The appellant's vehicle was thoroughly investigated by police officers serving with the Crash Investigation Unit of Tayside Police. In their report the crash investigators expressed the opinion that the collision was the sole fault of the appellant. There was no evidence of contact with any other vehicle nor any evidence that the appellant had required to take evasive action to avoid anything on the road surface, other than the off-side kerb. Weather conditions were benign and had played no part in the accident.

[16] The crash investigators commented that they could not confirm that the appellant's claimed scenario and speed were true. However in their report they indicated that they had found no evidence to repudiate either claim or to offer any alternative explanation. As such, the crash investigators found the appellant's claimed scenario and speed plausible.

[17] In her report to this court, the sentencing judge explains that in selecting the starting point for the sentence of imprisonment on charge (2) she had regard to the Definitive Guideline entitled "Causing Death by Driving" issued by the Sentencing Guidelines Council in England and Wales. The contents of the Definitive Guideline are commonly taken into account by judges when imposing sentence in road traffic cases in Scotland. Such reliance on the Definitive Guideline by sentencing judges has been approved by this court. The section of the Definitive Guideline dealing with cases of causing death by careless driving, when under the influence of drink, adopts three categories of careless driving. They are in order of gravity: "Careless/inconsiderate driving arising from momentary inattention with no aggravating factors"; "Other cases of careless/inconsiderate driving"; and "Careless/inconsiderate driving falling not far short of dangerousness". The sentencing judge considered this case fell into the middle category.

[18] The Definitive Guideline then provides that when a driver whose driving fell within the middle category of carelessness had a blood/alcohol level in excess of the permitted level, but less than double that permitted level, the sentencing range should lie between 4 and 8 years imprisonment. The Definitive Guidelines recommends that the sentencer start his/her consideration of the appropriate sentence at a figure of 5 years, varying that figure upwards or downwards in the light of the particular circumstances of the case and any additional aggravating or mitigating factors.

[19] In her report the sentencing judge indicates that she considered that the offence committed by the appellant was aggravated by the fact that at the time of the fatal accident the appellant was committing the further offence of driving without insurance. It was also aggravated by the appellant's previous conviction for carless driving (section 3 of the 1988 Act) and his two police warnings in respect of the manner of his driving. The commission of another offence at the same time, such as driving without insurance, and previous convictions for bad driving are regarded as additional aggravating factors in the Definitive Guideline. The sentencing judge also noted that the deceased was a close friend of the appellant, which is one of the additional mitigating factors recognised in the Definitive Guideline.

[20] Taking account of all the circumstances, the sentencing judge decided that had the appellant been convicted after trial the appropriate sentence would have been one of 7 years imprisonment. In view of the fact that the appellant had pled guilty at the first available opportunity, she discounted the figure of 7 years by approximately 33% and arrived at a figure of 5 years imprisonment.

[21] As far as the period of disqualification on charge (2) was concerned, the sentencing judge indicates that she had regard to the appellant being a young man, born on 6 November 1990; to his previous conviction for careless driving and the two police warnings; and to the circumstances of the fatal accident. She explains that she also took account of the contents of the Criminal Justice Social Work Report, in which the author observes that the appellant had indicated a clear pattern of reckless behaviour when operating motor vehicles. She accepted that the appellant was genuinely remorseful for the death of his friend, that he had not driven since the date of the accident, and that he had a responsible record of employment. However, she explained that she had formed the view that the appellant's attitude to driving was irresponsible, despite the fact that he appeared to be responsible in other areas of his life, such as his work. She considered that a lengthy period of disqualification was necessary to mark the seriousness of the case and imposed one of 8 years, having discounted it from one of 12 years on account of the appellant's plea of guilty.

 

Submissions on behalf of the appellant

[22] In addressing the court on behalf of the appellant, Mr Paterson explained that the appellant had been driving at 75 mph when he had been distracted by the loose knob on the gear-lever in his car. This had caused him to look down from the road to the lever. On looking up he had realised that the vehicle was "off line". His car was still on the road but was drifting towards the verge. He had required to take corrective action. He had then lost control of the vehicle at the point when he was about to enter the M90 motorway. Reliance was placed on the views of the Crash Investigators about the appellant's account of events, to which reference has already been made.

[23] It was submitted that the headline or starting sentence of 7 years imprisonment selected by the sentencing judge, from which she had made a discount on account of the plea of guilty, had been excessive. It was not, as we understood it, disputed that the appellant's driving fell into the middle category of careless/inconsiderate driving within the Definitive Guideline. It was pointed out, however, that in the Definitive Guideline the starting point for careless/inconsiderate driving arising from momentary inattention with no aggravating factors was 4 years custody, with a sentencing range of between 3 years and 7 years. It was accepted that the offence in this case had been aggravated by the fact that the appellant had been driving at an excessive speed. However the speed had not been grossly excessive. The background to the car having been uninsured was that the appellant owned another car, which had been insured. On account of the costs involved he had been unable to arrange insurance for the car he was driving, which he had purchased about a week prior to the accident.

[24] Mr Paterson sought to rely on a number of mitigating factors - the appellant's age, the fact that he had never served a custodial sentence, his good work record, which was vouched by written references, the fact that he had displayed immediate concern and remorse, the fact that the deceased was a close friend of the appellant, the fact that the appellant had not intended to drink alcohol that evening and finally that the appellant had himself sustained injury.

 

Discussion
[25] In our opinion the sentencing judge was entitled to seek guidance from the Definitive Guideline of the Sentencing Guidelines Council on "Causing Death by Driving". She was also correct in determining that the driving in this case fell into the middle category of carelessness set out in the table to which we have referred. This was not an accident that was caused entirely by momentary inattention on the part of the appellant. On the contrary it is clear from the evidence which Michael Davie provided to the police that the appellant had been driving at an excessive speed prior to entering and as he drove down the slip road leading to the M90. Having regard to the quantity of alcohol that the appellant had consumed that evening, in driving at a speed of at least 75 miles per hour, the appellant displayed a significant degree of carelessness and a lack of consideration for the safety of others, including, of course, his passenger. In these circumstances we are not persuaded that the sentence of imprisonment imposed was excessive. A sentence of five years imprisonment cannot be said to lie outwith the range of sentences that was open to the sentencing judge.

[26] We turn to deal with the period of disqualification. We are persuaded the period imposed was longer than was necessary. It would prevent the appellant from driving for a number of years following upon his release from prison. Whilst the sentencing judge was perfectly entitled to mark the seriousness of the situation, and indeed to protect the public, in our opinion those objectives could be achieved by a shorter period of disqualification. What we propose to do is to substitute a period of disqualification of 6 years 8 months for that imposed by the sentencing judge. The period of 6 years 8 months is reduced from one of 10 years on account of the appellant's plea of guilty. On the expiry of that period, the appellant will remain disqualified until he has passed an extended driving test. To that extent the appeal is allowed.