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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 8
HCA/2020/000303/XC
Lord Justice Clerk
Lord Turnbull
Lord Pentland
OPINION OF THE COURT
delivered by LADY DORRIAN, then LORD JUSTICE CLERK
in
CROWN APPEAL AGAINST SENTENCE
by
HER MAJESTY'S ADVOCATE
Appellant
against
STEPHEN JONES
Respondent
Appellant: A Edwards, QC, AD; Crown Agent
Respondent: McCall, QC; Adams Whyte, Solicitors, Edinburgh
2 February 2021
[1]
By section 76 letter, the respondent pled guilty to a combined charge of causing
death and serious injury by dangerous driving on the B792 south of a farm access road, on
8 January 2019. The respondent was driving a single decker bus. The charge alleged that he
repeatedly drove onto the opposing carriageway, drove at a speed excessive for the road
layout, failed to negotiate a left hand bend, and drove onto the opposing carriageway
directly into the path of an oncoming car. The driver and passenger of the car, Ian McKay
2
and his wife Helen, were so severely injured that they died. All four passengers on the bus,
Gladys Heggie, Hugh Dean, Greg Moodie and Agnes Marshall were injured, the latter more
severely than the others.
[2]
The preliminary hearing judge imposed a sentence of 3 years imprisonment, reduced
from 4 years and 6 months on account of the plea. The Crown appeals that sentence as
being unduly lenient.
Circumstances of the offence
[3]
It was a sunny day and road conditions were good. The respondent crossed the
centre line on at least two occasions in the approach to the bend at which the accident took
place, and made no attempt to brake before the bus collided with the deceased's car. The
four passengers suffered a range of injuries, mainly bruising and pain, although one
suffered from a hairline fracture to her jaw. CCTV from the bus shows the incident as it
happened.
[4]
The manner of driving was to some extent spoken to by the passengers, all of whom
expressed concerns at the driving in the lead up to the collision. One was sufficiently
concerned that just before the collision he put his phone away and grabbed onto the seats in
front of him with both hands.
[5]
Cameras on the bus showed the following:
12:49:18 - The bus appears to encroach on the opposing carriageway across the
centre white lines.
12:49:34 - The bus appears to encroach on the opposing carriageway across the
centre white lines.
3
12:49:38 - The bus approaches the corner of the road, appears to go in a straight
line not following the bend of the road and encroaches onto the opposing
carriageway, where the car is.
12:49:42 - the bus encroached further onto the opposing carriageway, and takes
no corrective action. The car, clearly visible on the footage, does take evasive
action but the collision occurs one second later.
[6]
The average speed of the bus was calculated as 43mph, from a point 0.205 miles from
the collision, to the point of the collision itself. There was no evidence to suggest that the
bus exceeded the applicable speed limit of 50mph.
[7]
Interviewed by police the respondent said:
"I got blinded temporarily by the sun upon going round the corner. It affected me
for a few seconds. By the time I regained my vision I realised there was a car directly
in front of me and gave me no chance to apply an emergency brake."
When cautioned and charged he said: "All that I can say is sorry."
[8]
The respondent has four relevant previous convictions, two for speeding some time
ago, and two for careless driving, the latter in 2014 and 2016. His wife suffers from
fibromyalgia, with chronic symptoms of pain and extreme fatigue. She is very reliant on his
care.
The sentencing decision
[9]
In sentencing the respondent the judge accepted that the sun, which was dazzling as
seen on cctv, may well have briefly impaired to some extent a clear view of the road ahead
immediately before the collision. However, whilst that may have been a contributory factor
it was plain that there were other more substantial causes for which the respondent was
wholly responsible. He was driving too fast for the road layout and for the weather
4
conditions. It must have been plain that there was a risk of being dazzled but he did not
moderate his speed as he should have done. On a number of occasions in the lead up to the
collision he failed to keep to his own carriageway. His conduct in the lead up to the collision
gave rise to a significant risk of danger. It caused two deaths and the serious injury of a
third person. Weight fell to be attached to the recent convictions for careless driving. The
respondent's genuine remorse, and his role as a carer for his wife, who would suffer by
being deprived of his care and support whilst in prison were taken into account as
mitigating factors.
[10]
The sentencing judge considered the Definitive Guideline on "Causing death by
dangerous driving" issued by the Sentencing Council for England and Wales and concluded
that the whole circumstances put the offence at the high end of level 3 of the Definitive
Guideline.
Submissions for appellant
[11]
It was submitted that the sentence imposed was unduly lenient in that it failed to
recognise the level of seriousness of the danger presented in this case, which involved: (i) a
public service vehicle with passengers; (ii) excessive speed; (iii) conditions of much reduced
visibility, namely direct sunlight; and (iv) the accident occurring when the accused made no
attempt to properly negotiate a bend, continuing in the wrong carriageway. The following
aggravating factors were present: (i) the accused had relevant previous convictions; and (ii)
two people died and four were injured. Having regard to the particular combination of
factors present in this case, the sentence imposed failed to satisfy the need for retribution
and deterrence.
5
[12]
The sentencing judge erred in stating that under the Guideline which would apply in
England and Wales the offence would be a level three offence (with a range of 2-5 years)
rather than a level two offence (with a range of 4-7 years). Level three involves driving
which created a significant risk of danger whereas level two is driving which created a
substantial risk of danger, as in this case. The respondent drove a public service vehicle at
excessive speed having regard to the conditions and drove onto the opposite carriageway at
a time when he could not see oncoming traffic by reason of the dazzling effect of the sun. By
reference to a detailed examination of the Guideline it was submitted that the offence fell
within level 2.
Submissions for respondent
[13]
The test in appeals of this kind (HMA v Bell 1995 SLT 350) is that the court must
consider the sentence to be outside the range which any judge could reasonably have
considered appropriate. That could not be said in the present case. The driver did not
exceed the speed limit, and although he failed to reduce his speed to allow for the weather,
he had taken the precaution of lowering his visor and wearing sun glasses. This was not a
sustained period of bad driving but driving where the bus encroached twice onto the wrong
carriageway, and where the speed, although within the permitted limit was nevertheless
excessive for the locus and the conditions of low sun. The judge correctly identified the
aggravating factors, and the personal mitigation.
Analysis and decision
[14]
The sentence selected by the sentencing judge is a lenient one for the circumstances
of the offence. The question for the court, however, is not whether it may be classed as
6
lenient but whether it is "unduly lenient". That is a high test, as explained in HMA v Bell (at
page 353 H-I):
"It is clear that a person is not to be subjected to the risk of an increase in sentence
just because the appeal court considers that it would have passed a more severe
sentence than that which was passed at first instance. The sentence must be seen to
be unduly lenient. This means that it must fall outside the range of sentences which
the judge at first instance, applying his mind to all the relevant factors, could
reasonably have considered appropriate."
[15]
In the case of HMA v Gatti, heard on the same day as the present case, we observed
that:
"It is all too easy... to focus so closely on the Guideline as to lose sight of the exercise
at hand, and the purpose for which they are being referred to."
[16]
That was a reference to the fact that the Guideline, whilst it may usefully provide a
check against the sentence imposed, is not applicable in Scotland and should neither be
treated as though it was nor followed with slavish adherence. In Milligan v HMA
[2015] HCJAC 84 the court stated, para [5]:
"We caution against too rigid an application of the English sentencing guidelines.
They are not to be applied even in England in mechanistic fashion and it must be
borne in mind that those guidelines in England are to be understood in a different
sentencing regime from the Scottish sentencing regime ... But the Scottish approach
to sentencing is rather less formulaic than the English sentencing guidelines."
[17]
There is a slight hint, perhaps, in his report that the sentencing judge did not retain
this point firmly in the forefront of his mind. In the appeal, the Crown submissions, whilst
referring to Scottish precedent in cases of this kind, focused to a significant extent and in
great detail on the Guideline. We shall return to the content of the Guideline in a moment.
[18]
Before doing so it is helpful to identify what was the nature of the driving in
question which made it dangerous. As the sentencing judge put it, the essence was that at
times the respondent drove too fast for the road conditions and encroached over the centre
line of the road, although at no stage did he exceed the speed limit. The judge recognised
7
that two deaths were caused and one passenger was seriously injured. He properly took
these into account as aggravating factors. He also recognised the significance of the
convictions, in particular the two most recent ones, which he identified as aggravating
factors. We do not think that he failed to identify the relevant factors to be taken into
account.
[19]
It was submitted that a cross check using the Guideline would necessarily have
resulted in a higher sentence, and that the speed of the vehicle, taken with the aggravations,
and the fact that it was a public service vehicle, would clearly have placed the offence within
level 2 of the guidelines. It was submitted that it would fall into that category because of the
combination of the speed, and other determinants of seriousness, namely a prolonged,
persistent and deliberate course of very bad driving and that the vehicle was a PSV. We
cannot accept that submission. The level of speed which might attract consideration of
level 2 is "Greatly excessive speed, racing or competitive driving against another driver".
That is not the situation here: rather the speed may be characterised, per level 3, as "Driving
above the speed limit/at a speed that is inappropriate for the prevailing conditions". It was
not, on the libel and the cctv, a "prolonged, persistent and deliberate course of very bad
driving" as is referred to in the relevant determinant of seriousness within the Guideline.
No other determinant of seriousness applies, unless one were to count speed twice, which
would be impermissible. It is not irrelevant that the vehicle was a PSV, and it is of course
relevant that passengers were injured. However, it was not the nature of the vehicle or its
load which made the speed an issue but the weather and the nature of the locus. The
Guideline itself states that "The greater obligation on those responsible for driving other
people is not an element essential to the quality of the driving and so has not been included
amongst the determinants of seriousness that affect the choice of sentencing range".
8
Accordingly we do not accept the fundamental basis upon which the Crown submission
rests. We do not think it can be said that the sentence falls "outside the range of sentences
which the judge at first instance, applying his mind to all the relevant factors, could
reasonably have considered appropriate". The appeal must therefore be refused.
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