Motorist who caused injury by dangerous driving wins appeal against ‘excessive’ sentence in legal first

The Sheriff Appeal Court ruled that the sentence imposed was “excessive” and instead imposed a fine and reduced the period of disqualification.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff John Morris QC, heard that the appellant Kevin Burke pleaded guilty at Tain Sheriff Court in July 2016 to the single charge on the complaint being a contravention of section 1A of the Road Traffic Act 1988.

The complaint stated that he was driving his car on the A9 in November 2014 when he fell asleep at the wheel and crossed over on the opposite carriageway, crashing into an oncoming vehicle and causing injuries to the driver and passenger of the other car.

Alexander Sutherland, who was driving the vehicle, escaped with bruising and stiffness, but his wife Kathleen MacDonald, who was the passenger, suffered a fracture of the collar bone and other bruising, while the appellant himself suffered the most drastic injuries and had to be airlifted to hospital.

The appellant tendered a plea of guilty at the continued pleading diet and a criminal justice social work report, which was available on the same date as the plea, narrated the consequences the appellant had suffered as a result of the serious injuries he sustained in the accident, as well as the remorse he felt at the consequences for those in the oncoming vehicle.

On the same date the sheriff imposed a CPO, instead of a sentence of imprisonment, with a single requirement that the appellant complete 200 hours of unpaid work within 12 months – the number of hours had been reduced from a maximum starting point of 300 hours to take account of the early plea of guilty.

Further, the sheriff disqualified the appellant from driving for a period of 28 months and until he passed the extended test of competence to drive, again reduced by one third from three-and-a-half years.

However, the appellant challenged the “excessive” sentence imposed, arguing that the sheriff erred in his assessment of the seriousness of the offence, as it was not of such gravity that a custodial sentence should have been in contemplation.

It was submitted that the period of disqualification was also excessive, having regard to an assessment of the aggravating and mitigating factors.

The appellant, who was a first offender with a clean driving licence, had “accepted his guilt at the first opportunity”, and was “remorseful” about the injuries to the occupants of the other vehicle, the court was told.

It was argued that the sheriff had erred in assessing the appellant’s driving as “towards the upper end of the scale for dangerous driving”, and that had he carried out a careful assessment of the aggravating and mitigating factors he would have placed the degree of culpability at the lower end of the scale, which would be level 3 in terms of the definitive guidelines which apply in England and Wales.

Delivering the opinion of the court, Sheriff Principal Stephen said: “Although the sheriff has set out the facts and circumstances and his reasoning with great care we consider that there is force in the argument that he has erred in his assessment of the degree of culpability and has also failed to take fully into account the absence of aggravating factors relating to the driving and factors which may be considered mitigatory.”

The court was told that the appellant continued to suffer from significant ongoing symptoms on account of his injuries.

“The court is obliged to take into account the nature of the injuries and the fact that the offender himself suffered most severely from the effects of the collision. The seriousness of his injuries is a factor which can be regarded as mitigatory,” Sheriff Principal Stephen said.

She added: “We therefore consider there is force in the argument that the sentence imposed is excessive in the sense that the circumstances do not point to a custodial sentence being the appropriate sentence. If a custodial sentence is not called for then a community payback order should not be imposed given that it is an alternative to custody.

“In these circumstances we propose to quash the community payback order and substitute a financial penalty of £1,500. In keeping with the sheriff’s decision to apply a discount of one third we will reduce that to £1,000.

“Similarly, a period of disqualification is obligatory and carries with it the requirement that the extended test of competence to drive be passed. We take the view that a period of disqualification of two years is appropriate standing the appellant’s past exemplary driving record.

“We will therefore quash the disqualification and re-impose a period of two years with the requirement, of course, that the extended test of competence to drive be passed before the appellant can re-apply for a driving licence. That requirement satisfies any public safety and protection concerns.”