Keoghs Scotland Crime and Regulatory team successfully reduced on appeal the length of sentence imposed by the High Court on a young driver convicted of causing death by dangerous driving.
In this tragic case, the 20-year-old accused was driving his vehicle to work at around 7am near Edinburgh. A pedestrian crossed the lanes of the oncoming carriageway and jumped over the one-metre-high metal central reservation fence with jagged shrubbery (designed to stop persons crossing at that location). The pedestrian then ran across the offside and into the nearside lane where the accused was travelling; there was a collision. There was a recognised crossing within 60 metres of the accident. The pedestrian had consumed alcohol and diazepam. The speed limit for the road was 40 mph. The accused was recorded driving between 50-62 mph. Police collision investigators noted that even if the accused had been driving at the speed limit and seen the pedestrian when he first set foot on the carriageway, the collision was unavoidable.
The accused plead guilty to section 1 of the Road Traffic Act 1988, accepting that he was travelling above the speed limit, and had undertaken two vehicles in the preceding minutes.
The High Court sentencing judge accepted all the mitigatory features advanced for the accused. These included that he was a first-time offender with a clean driving record. The accused demonstrated genuine, profound remorse immediately and throughout. He remained at the scene, called emergency services, assisted and fully cooperated with the police. He had a stable employment history, wholly pro-social background, responsibilities to his young son, positive character references, and was sole financial provider for the household. His early diagnosis of ADHD, for which he was bullied at school, was supported by medical records as well as the criminal justice social work and psychologist reports. The accused had gained qualifications and employment and was well thought of by his employers.
In relation to aggravation, the sentencing judge noted that the deceased was a pedestrian, but that it could not be disputed that his presence on the carriageway would have been entirely unexpected by drivers at that locus.
The High Court sentencing judge viewed this as a single episode of dangerous driving, comprising excessive speed and undertaking manoeuvres. He assessed the driving as within the lower end of category B of the death by driving sentencing guideline. This category has a headline sentence of 4-7 years’ imprisonment. The sentencing judge noted that the sentencing young people guideline was engaged. However, he failed to apply it, selecting a headline sentence of 5 years. This was reduced by 25% to 3 years 9 months due to the early guilty plea. The accused was disqualified from driving for a period of 5 years and required to take the extended driving test.
Keoghs Scotland successfully appealed the sentence imposed by the High Court on the basis that: (1) the starting point of 5 years was excessive; and (2) the sentencing judge failed to apply the sentencing young people guideline. The arguments put forward for the appellant included:
1. Misapplication of guidelines for dangerous driving
Determining where within the lower end of level B scale the sentence should fall involved the balancing of aggravating and mitigating factors.
The extensive mitigating factors as outlined above were emphasised. The only aggravating factor was that the accident involved a pedestrian. However, the pedestrian came over the fence and accelerated into the roadway, giving the appellant little time to react. The appellant would not have expected a pedestrian to enter the carriageway from the central reservation.
There was a misapplication of the guidelines in that this balancing should have brought the figure lower than five years.
2. Failure to apply the sentencing young people guideline
The trial judge had recognised that the sentencing young people guideline applied but did not reflect this in the final disposal.
The sentencing young people guideline notes that culpability of a young person is lower than an older person. Therefore, if a custodial sentence is imposed on a young person, it should be shorter than the sentence for an older person having committed the same or similar offences. The guideline also highlights that rehabilitation of the offender should be a primary consideration when deciding the appropriate jail sentence.
The guidelines are there to make allowance for the difference in development, immaturity and impulsivity of a young offender. The behaviour shown by the accused aligns with that consideration. Available evidence suggests that with his background, the appellant was a young person more likely to act impulsively and take risks in such circumstances. His impulsivity and lack of maturity fed into his driving, occupation of the nearside lane, and speed.
We persuaded the Appeal Court that the sentence imposed was excessive.
Delivering the judgment, Lord Matthews noted that the sentencing judge had correctly identified this as a single course of driving within the lower end of category B but had failed to attach sufficient weight to the mitigating factors advanced for the defence as outlined above.
The Appeal Court noted that the psychologist report obtained by the defence placed significance on the appellant’s impulsivity. They accepted that the appellant’s age and ADHD diagnosis caused lower maturity and poorer decision making and was likely to have significantly impacted his judgement, impulsivity and actions. The court emphasised that rehabilitation is a primary consideration when sentencing young persons.
The Appeal Court noted that the only aggravating factor was that the deceased was a pedestrian, which had to be weighed against his own contributory actions. They held that this was a case where the mitigating factors outweighed the aggravating factors.
The Appeal Court quashed the original sentence, substituting a headline sentence of four years imprisonment reduced to three years to account for the early plea.
Keoghs Scotland are grateful to John Scullion KC, Ian Duguid KC, and Professor MacPherson Consultant Forensic Clinical Psychologist for their expertise.
Chris Rae - Solicitor
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