APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Clarke Lord Menzies	[2010] HCJAC 104 Appeal No: XC355/10 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL by HER MAJESTY'S ADVOCATE Appellant; against STEPHEN McKAY Respondent: _______

Appellant: Solicitor General, Q.C.; Crown Agent

Respondent: J Scott, Solicitor Advocate; Basten Sneddon, Dunfermline

14 October 2010

Introductory

[1] This is an appeal by the Lord Advocate under sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995 against a sentence imposed by the sheriff at Dunfermline on the ground that the sentence is unduly lenient.

[2] The respondent to the appeal pled guilty on 23 February 2010 at the first diet in these proceedings on indictment to an amended charge of contravening section 2B of the Road Traffic Act 1988 (as amended by the Road Safety Act 2006). His pleas of not guilty to the other charges were accepted by the prosecutor. Following various continuations for the obtaining of reports, the sheriff on 4 May 2010 passed a sentence comprising the following elements:

(i) a community service order requiring the respondent to perform 240 hours of unpaid work in the community;

(ii) disqualification for holding or obtaining a driving licence for a period of twelve months;

(iii) endorsation of the respondent's driving licence.

The sheriff discounted the number of hours of unpaid work required to be performed under the community service order from 300 hours to take account of the respondent's early plea of guilt and in presenting the Crown's appeal the Solicitor General made clear at the outset of his submission that no issue was taken as respects the giving, or the extent, of that discount.

[3] The terms of the charge to which the respondent pled guilty were as follows:

"(1) on 15 November 2008 on a road or other public place, namely Grange Road, Dunfermline, Fife, you STEPHEN MCKAY did cause the death of Brian Taylor, care of Fife Constabulary, Dunfermline by driving a mechanically propelled vehicle, namely a motor car registered number V947 LCS 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 speed, fail to negotiate a double bend, lose control of said motor vehicle, cross onto the wrong side of the road, collide with said Brian Taylor, then riding a bicycle and cause him to be thrown from that bicycle whereby said Brian Taylor was so severely injured that he died; CONTRARY to the Road Traffic Act 1988, Section 2B."

Facts and circumstances
[4] The locus of the accident which led to the tragic death of Mr Taylor is a relatively narrow road which links Rosyth in the south to parts of Dunfermline in the north. Although close to the built-up areas of those towns, the road proceeds through countryside. It is subject to a speed limit of 40mph, denoted by "repeater" speed limit signs; but it is not provided with any form of street lighting. Proceeding from Rosyth northwards towards Dunfermline, the road inclines for a distance from the built-up area of Rosyth of about a kilometre or less before reaching a bend, which for north travelling traffic is to the left. The bend to the left is thereafter followed by a bend to the right, after which there ensues a relative short stretch of some few hundred metres.

[5] The accident occurred at 0055 hours at the bends referred to in the preceding paragraph. At the time it was raining slightly. It appears that the respondent at some point lost control of his car, which skidded across the road and in doing so struck Mr Taylor, as Mr Taylor was cycling in a southerly direction. The bicycle and Mr Taylor were evidently caught by the front of the car and struck the windscreen; both were propelled onto the eastern verge of the road. The car thereafter struck the pole of one of the repeater signs on that verge and ended up broadside across the road.

[6] Another motorist arrived from the north very shortly afterwards and when he stopped at the scene he was approached by the respondent in a panicky state. The respondent said: "I have just hit somebody, I think I have killed somebody, it was a cyclist, it was in the middle of the road." The police and ambulance personnel arrived very shortly thereafter and the para-medical crew of the ambulance established that Mr Taylor had already died. The respondent stated to the police that he was the driver of the car and having been cautioned said:

"I was coming from Rosyth to Dunfermline using the back road with I think his name is Paul who is my pal's ex-girlfriend's nephew. I was running him up the road to Townhill because he was talking about walking up the road and I said no I'll run you.

I was doing about 50 to 60mph but 50 coming round the corner with my full beam on to make sure there was no cars coming, just as I came round the bend that's when I saw him. He was in the middle of the road right next to the white line in the middle of the bend. I think I just jammed on the brakes and that was it. I hit him just on the side of the car. My air bag went off and I careered, slid off whatever into the sign and stopped. I got out and phoned 999. I don't think there were any lights on his bike, I just saw the stripy green jacket he was wearing. I went right over to him and he wasn't moving at all. I don't know who is to blame for the crash but I couldn't have prevented that because the time I came round the corner he was right there in front of me."

On being asked where exactly the cyclist had been prior to the crash, the respondent said:

"In the middle of the road coming towards me just on the white line as I came round the corner. I was away from the edge of the road but on my side."

The respondent was then asked whether he had crossed the road and struck the cyclist on his side of the road to which he replied:

"No, not on his side of the road. No I know I wasn't on his side of the road."

[7] An examination of the locus was of course carried out by police examiners experienced in such examinations. From the real evidence left at the scene their calculations of the maximum speed of the respondent's vehicle prior to the impact were essentially consistent with what the respondent had told the police. Those acting in defence of the respondent commissioned a report from an experienced road traffic accident investigator, which report was before the sheriff. The two principal points emerging from it which the defence advanced to the sheriff in its plea in mitigation were (a) that the road had a severe camber, undulations and depressions and high spots of varying sizes and depths which could adversely affect vehicle steering and tyre adhesion; and (b) that the boot of the car contained a number of tools used by the respondent in his trade as a plumber, the weight of which might have created a "pendulum" effect leading to rotation of the car. In his report to this court the sheriff mentions that in addition to taking those matters into account he also took into account that "surface ice may have contributed". While the possibility of ice was floated by the defence expert in his report, it was accepted that that possibility had not in fact materialised and it was not in fact advanced to the sheriff in mitigation that there was any surface ice.

[8] The respondent, who was born on 3 May 1975, has a number of previous convictions in respect of road traffic matters. The schedule placed before the Sheriff disclosed the following road traffic offending. On 25 July 1996 the respondent was convicted of contraventions of section 178(1)(a), section 5(1)(a), section 143(1) and (2) of the Road Traffic Act 1988. He was fined and disqualified for a period of three years. On 5 November 1996 the respondent was convicted of a further contravention of section 178(1)(a) of the 1988 Act as well as a contravention of section 35(1). He was also convicted on that date of driving while disqualified. He was disqualified for a period of four years from that date and made the subject of a Community Service Order. On 6 March 2003 he was convicted in the district court of a contravention of sections 84 and 89 of the Road Traffic Regulation Act 1984 and again, in the same court, on 22 April 2004 of the same provisions (speeding). In 2007 he was convicted, again in the district court, of contraventions of sections 42 and 14(3) of the Road Traffic Act. Mr Scott, solicitor advocate, who appeared for the respondent, properly drew to the attention of the Solicitor General prior to the hearing, and to the court, that in addition, and as recorded in the DVLA driver record inquiry report produced by the Crown for the purposes of this appeal, the respondent had been convicted in 1993 of an infraction of section 5 of the Road Traffic Act 1988, committed on 11 October 1992.

Submissions

[9] In advancing the Crown's contention that the sentence was unduly lenient, the Solicitor General submitted, in summary, that this case was not a case of momentary lapse of judgment. The respondent had admitted driving in excess of the 40mph speed limit, and in excess of the safe speed for the bend, in that he had accepted that he had been doing approximately 50mph at the bend. The respondent had further admitted to driving at a higher speed - namely 50 to 60mph - in the section prior to the bend. Accordingly this admission of exceeding the stipulated speed limit took the quality of driving beyond momentary inattention and therefore into the category of "high culpability".

[10] The Solicitor General then referred to matters which he submitted were aggravating factors. Again in summary, these were presented as being (i) the giving of a false account to the police in the immediate aftermath of the accident respecting the unfortunate cyclist's position on the road; and (ii) the respondent's record of previous convictions for offences in road traffic matters which demonstrated that the respondent paid "scant regard" to the road traffic legislation. Further the respondent could not plead any of the customary mitigating factors in such cases. The respondent was not a young or inexperienced driver; nor had he suffered serious physical injury in the accident. His remorse was, said the Solicitor General, "at a low level".

[11] While it was the position of the Crown that the sentence was unduly lenient in all its elements, the Solicitor General submitted that on any view the period of disqualification was, as the sheriff accepted in his report, inadequate; and the disqualification for holding or obtaining a driving licence should have been coupled with a requirement to sit the extended driving test.

[12] At the outset of his submissions on behalf of the respondent, Mr Scott accepted that in imposing only the minimum period of disqualification and in omitting to impose a requirement to sit the extended driving test, the sheriff had erred; and as respects those matters the respondent was unable to dispute that the sentence was unduly lenient. However, the selection (prior to discount) of the maximum number of hours of community service could not be described as unduly lenient. In making a community service order the sheriff had necessarily formed the view that a custodial sentence would have been appropriate but had considered, correctly, that as an alternative to custody the respondent, who had not served any custodial sentence previously, should undertake community service.

[13] It was far from correct to describe the respondent's remorse as being "at a low level". The respondent was devastated by the accident and the consequences of it for Mr Taylor's family. In its aftermath the respondent had been unable to sleep and had suffered flashbacks. He had required to seek help and medication from his general medical practitioner. The medical report, which Mr Scott had obtained, noted inter alia that the respondent told his doctor that he would rather he were dead than Mr Taylor; and that he was more concerned about the accident and Mr Taylor's death than the possibility that he might go to prison. The respondent's post-accident state evidently prompted the police to advise the respondent that he seek counselling, which the respondent had done. The case notes, which had been obtained, referred to his feelings of guilt. Moreover, the social enquiry report, which was before the sheriff, recorded that the respondent was "devastated for the victim" and was "clearly aware of the impact on the victim's family".

[14] Mr Scott accepted that, since the respondent admitted driving in excess of the 40mph limit, it could not be said that this was properly a case of momentary lack of attention. But the respondent had never sought to shy away from the fact that he had been driving too fast. Although the road was subject to that speed limit, it was a country road, without street lights, and the accident happened a little after midnight. There were also the further features respecting the surface road to which the defence report had adverted. In short, while it was not a case of momentary loss of attention, it could not, be said that it fell into the category of a "high culpability" case.

[15] While the respondent's position was obviously not assisted by his record of previous convictions, those previous convictions did call for some analysis. The only significant offending occurred in 1996 or earlier. There were no contraventions of any of sections 1, 2 or 3 of the Road Traffic Act 1988. The speeding convictions were in 2003/4. Properly analysed, there were no recent significant Road Traffic Act convictions - as had been recognised by the authors of the social enquiry report.

Discussion and decision

[16] The provisions of section 2B of the Road Traffic Act 1988, creating a new statutory offence of causing death by careless driving, were introduced by the Road Safety Act 2006. In the case of proceedings on indictment, the legislation provided for a maximum penalty of five years' imprisonment, or a fine, or both. Provision was also made for prosecution summarily. Since provision was made for disposal simply by fine, it is evident that it was not the parliamentary intention that a prison sentence should be universally imposed for contraventions of this new provision. Even if a term of imprisonment were appropriate, the courts in Scotland are of course bound to consider the alternative to prison of, inter alia, a community service order particularly in the case of someone who has not previously served a sentence of imprisonment. We would add that as we understand matters, in England and Wales a prison sentence may be suspended and it appears from the selection of English decisions included in the papers before us that the courts in that jurisdiction commonly suspend any prison sentence which they attach to contraventions of this particular statutory provision.

[17] As the respective submissions developed it appeared that there might be some contention between the Crown and the solicitor advocate for the respondent as to the precise categorisation of the culpability of the respondent's driving. For our part we would observe that we find it difficult in this field meaningfully to set out and define "categories" of culpability. These unfortunate cases in which death has resulted from careless or inconsiderate driving are inevitably very "fact specific". In our view what the courts have to deal with is a spectrum of negligent driving behaviour, rather than categories, and even within that spectrum there are obvious difficulties in reaching a view as to the placing on that spectrum of the individual case. In the present case it was accepted that in view of the respondent's frank and continuing admission that he had been driving too fast, one was not wholly in a situation in which the accident could be said to have arisen entirely from some momentary inattention. On the other hand regard must be had to the locational and temporal factors to which Mr Scott referred as potentially mitigating the position of this case on that spectrum. In his report the sheriff refers to his experience of other cases in which the Crown accepts pleas of guilty to section 3 of the Road Traffic Act rather than section 2 of that Act as indicating something of assistance in assessing the respondent's culpability in this case. While we accept the Solicitor General's criticism of that approach in so far as based on the view that a variety of considerations may affect the acceptability of a lesser plea, we are conscious that the sheriff in this case, and sheriffs generally, have a wide experience of road traffic cases and the spectrum of culpability which exists in these, whether or not death has ensued. Accordingly, in our view, we should bear that experience in mind in reviewing the sheriff's assessment of culpability in this case.

[18] We are little persuaded by the Solicitor General's suggestion that any remorse shown by the respondent was at "a low level". It is, in our view, plain that while the respondent was not physically injured in this accident, he suffered immediate and longer lasting emotional and psychological consequences; and that he has much concern and sympathy for Mr Taylor's family. Further, we do not consider that the court can properly conclude that what the respondent told the police respecting the position of Mr Taylor's bicycle and his own car in the relatively immediate aftermath of the accident was "false", if, by use of that term, the Solicitor General suggested mendacity. We think it far from possible to exclude an honest presentation by the respondent of a mistaken impression of an undoubtedly traumatic event, particularly when the respondent freely admitted having driven at speeds exceeding the speed limit. We therefore consider that there is no proper basis for placing any sinister interpretation of what the respondent is noted as having said at the locus some 15 minutes or so after the occurrence of this tragic accident.

[19] The Solicitor General understandably invoked the respondent's previous convictions as an aggravating matter. However, in our view, these do call for some analysis, rather than simple numerical cataloguing. As Mr Scott observed, the significant road traffic convictions occurred in 1996 and earlier, when the appellant was a youth or young man. He was convicted of speeding in 2003 and 2004 and any other previous convictions are, as to the author of the social enquiry report observes, very minor. There are no previous convictions for careless or dangerous driving. The existence of these previous convictions for road traffic offences, while of course not irrelevant as aggravating factors in the overall disposal may, as is alluded to by the sheriff, perhaps be more relevant to underscore the inadequacy of the period of disqualification which he selected.

[20] Sentencing in cases such as this is generally recognised as being a difficult exercise for all concerned. We have carefully considered the facts of the case and the parties' submissions and have come to the conclusion that, subject to the issues respecting disqualification, we cannot describe the sheriff's decision to select, as an alternative to custody, a community service order of 300 hours (prior to discount) as meeting the test for a Crown appeal against sentence of being unduly lenient. As earlier indicated, the making of a community service order by the sheriff could, of course, only proceed upon the basis that the offence merited a custodial disposal in principle. Had the Sheriff imposed a custodial sentence it might, depending of course on its length, have been difficult successfully to contend that such would be an excessive sentence. But we do not consider that the Sheriff's decision to make a community service order can be said to be so outwith the range of disposal available to him as to be unduly lenient.

[21] As previously indicated, it was accepted by both parties, and indeed the sheriff, that the sheriff had erred in imposing simply the minimum period of disqualification from driving. We agree with that view. Visiting that aspect of the sheriff's disposal of new, we consider that a period of disqualification of four years, taken together with the requirement to sit the extended driving test, is appropriate.

[22] In these circumstances we shall allow the appeal and quash the sentence imposed by the sheriff. In its place, replicating the sheriff's disposal as respects the community service order, but altering his disposal in respect of disqualification, we shall substitute a sentence:

(a) making the respondent subject to a community service order of 240 hours (respecting which credit shall be given for the hours already performed under the community service order pronounced by the sheriff);

(b) disqualifying the respondent for holding or obtaining a driving licence for a period of four years, dating from 4 May 2010 (being the date of sentence by the sheriff);

(c) ordering in terms of section 36(4) of the Road Traffic Offenders Act 1988 that the respondent be so disqualified, until he has passed the "appropriate test"; and

(d) ordering endorsation of his driving licence.