Crown sentence appeals founded on use of English driving offence guidelines refused by High Court



Lady Dorrian
Lady Dorrian

Two separate Crown appeals against what it considered unduly lenient sentences handed to two men convicted of dangerous driving charges have been rejected by the Appeal Court of the High Court of Justiciary.

The appellants, Shaun Gatti and Stephen Jones, both pled guilty to the charges brought against them. In both cases, the sentencing judge had considered guidelines issued by the Sentencing Council for England and Wales as comparative reference material when making his decision.

Both appeals were heard on the same day by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Turnbull and Lord Pentland.

Removed registration plates 

The vehicle of Mr Gatti, who had consumed alcohol before driving, collided with a pedestrian at 2:00am while he was driving at excessive speed and on the wrong side of the road within a 30mph zone in Paisley. He pled guilty to causing death by dangerous driving as well as failing to stop and report the necessary details and perverting the course of justice by removing the registration plates from his vehicle to conceal his guilt. 

At the time of the offences Mr Gatti was 20 years old and living at home with his mother. Before the accident he had been at a nightclub in the town centre, where he drank from a “fishbowl” containing significant volumes of alcohol. Crash investigators estimated his speed to have been between 42 and 47 miles per hour. The pedestrian, a 15-year-old girl, died in hospital following the collision. 

The sentencing judge was advised that Mr Gatti was a first offender, and that a Criminal Justice Social Work Report recorded him as saying he thought he was fit to drive and that he had not seen the girl until the last minute. He had intended to hand himself in to the police, but they arrived at his home before he could do so. 

The judge was referred to sentencing guidelines issued by the Sentencing Council in England and Wales, which he used as a “cross check” to the sentence he selected. He noted that under these guidelines the offence would have been a category 2 offence with a sentencing range of 4 to 7 years. Mr Gatti was sentenced to 6 years’ detention with concurrent sentences within that in respect of charges 1 to 3, and a further consecutive sentence of 9 months’ detention for charge 4.  

It was submitted for the Crown on appeal that in using the English guidelines as a cross-reference the sentencing judge had erred in placing the offence within category 2 when it should have been classed as a more serious category 1 offence. The sentences imposed failed to recognise the gravity of Mr Gatti’s actions during and following the offence. The level of discount awarded due to the guilty plea was not challenged. 

Overly analytical approach 

The opinion of the court was delivered by Lady Dorrian. Considering the usefulness of the English reference material, she said: “There were two flaws in the submissions advanced in this case. The first was that they proceeded as if the Guideline used in England and Wales was actually applicable in Scotland rather than available for such help as it may provide by way of cross check. The Advocate Depute did recognise, formally, that the latter was the correct approach, but the extent to which the detail of the Guideline was dwelt upon tended towards the former approach.” 

She continued: “The second flaw in addressing the Guideline was to apply an overly analytical approach to its use. It is all too easy, as the submissions for the Crown in this case demonstrated, to focus so closely on the Guideline as to lose sight of the exercise at hand, and the purpose for which it is being referred to.” 

Lady Dorrian concluded: “[The judge] recognised that having reached his conclusion, on traditional grounds, of the appropriate level of sentence, the English Guideline could provide him with a cross-check. Having regard to the Guideline he was fully entitled to consider that the circumstances might reasonably reflect those of a level 2 offence, were the Guideline to apply.” 

For these reasons, the appeal against Mr Gatti’s sentence was refused. 

No attempt to brake 

Mr Jones pled guilty to causing death and serious injury by dangerous driving after he drove a single decker bus onto the opposing carriageway and into the path of an oncoming car after failing to negotiate a left-hand bend on the B972 near Ballater. Both the driver and passenger of the car died from their injuries, and all four bus passengers were all injured to varying degrees. 

On the day of the offence, it was sunny, with good road conditions. The evidence of the passengers was that all of them had expressed concerns regarding Mr Jones’ driving in the lead up to the collision. At several points the bus crossed the centre line in the approach to the bend and he made no attempt to brake before the bus collided with the deceased’s car. Mr Jones had previously been convicted of four relevant offences, two of speeding and two of careless driving. 

The preliminary hearing judge accepted that Mr Jones was wholly responsible for the substantial causes of the crash. He sentenced Mr Jones to 4 years and 6 months’ imprisonment, which was reduced to 3 years on account of the plea. Consulting the English sentencing guidelines, he concluded that the offence would have been on the high end of category 3. 

Slavish adherence 

Similar Crown submissions to those made in Mr Gatti’s case were heard. Additionally, it was noted that the fact that Mr Jones was driving a public service vehicle would have clearly placed the offence within category 2 of the guidelines. 

Delivering the opinion of the court, Lady Dorrian, referring to Mr Gatti’s case, said: “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.” 

She continued: “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’.” 

For these reasons, the appeal against Mr Jones’ sentence was also refused. 

© Scottish Legal News Ltd 2021



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