Young motorist who caused serious injury by dangerous driving has ‘excessive’ custodial sentence reduced

Twenty-one-year-old Kyle Stewart, who was 19 at the time of the offence, claimed that his sentence of two years’ imprisonment was “excessive” having regard to his “relative immaturity” when the offence was committed.

The Appeal Court of the High Court of Justiciary ruled that while the sheriff was right to conclude that a custodial sentence was the “only appropriate method” of dealing with the appellant, he failed to give any weight to the appellant’s age when considering what sentence to impose, and it therefore reduced the sentence to 18 months’ imprisonment.

‘Hazardous overtaking’

Lord Glennie and Lord Turnbull heard that the appellant appeared for trial on 2 July 2019 at Dundee Sheriff Court on an indictment containing five charges, each alleging contraventions of road traffic legislation.

Charge 1 was a charge of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988, while the remaining four charges each concerned the defective condition of the tyres on the vehicle which the appellant was driving. 

The court was told that on 21 August 2017 the appellant was driving on the Newtyle to Meigle road near Dundee, a B-listed single carriageway road with many twists and bends, where he was observed by other motorists as driving at a “excessive speed” far in excess of the 60mph limit and engaging in “hazardous overtaking” of vehicles at particularly dangerous stretches of the road.

Alan Cosgrove and his son Thomas, who were respectively the driver and front seat passenger in another vehicle, were heading south towards Dundee when Mr Cosgrove noticed the vehicle driven by the appellant travelling towards him in the wrong carriageway at an excessive speed as he proceeded around a blind bend.

The vehicle was unable to return to its correct side of the carriageway and despite the appellant’s attempts to bring it to a halt it collided with Mr Cosgrove’s vehicle.

As a consequence of the collision both Mr Cosgrove and his son received injuries which required treatment at hospital. 

Alan Cosgrove had an open wound to his knee joint which required stitching and significant bruising to the area of his torso from the neck downwards. 

After being released from hospital he required to use crutches for a period of three months and thereafter a walking stick for a further eight months.

The sheriff noted that the incident had a “catastrophic effect” on his independence.

His son Thomas Cosgrove suffered fractures to his left wrist and his right ankle, along with soft tissue injury to his fingers. 

He described still suffering pain and discomfort from his injuries at the date of the trial nearly two years after the crash, and he still walked with a “prominent limp”.

‘Relative immaturity’

The appellant pled guilty to the offences concerning the tyres and was convicted after trial on charge 1, for which he was sentenced to two years’ imprisonment, disqualified from driving for a period of five years and ordered to sit the extended test of competence to drive, having been admonished in respect of the remaining charges.

But he appealed against his sentence, arguing that a custodial sentence was “inappropriate”, or, in the alternative, that the period selected was “excessive”.

It was submitted that although the appellant now fell to be dealt with as an adult, he was 19 years old when the offence was committed and his age and “relative immaturity” at the time was a “relevant factor” to take account of in sentencing, 

Similarly, it was relevant to take account of the significant period of time which had elapsed between the offence on 21 August 2017 and the date of sentence on 5 August 2019, during which period the appellant had been in “no further trouble” with the authorities.

Each of these two factors was relevant to the assessment of sentence but neither had been mentioned by the sheriff in his report and neither appeared to have been given any weight by him when identifying the appropriate disposal. 

It was also said to be relevant to take account of the “remorse” which the appellant expressed to the author of the criminal justice social work report, to take account of the injury which he himself received in the collision and to take account of the “psychological impact” which the offence and the subsequent prosecution had on him, but “little weight” was said to have been attached to any of these factors in the assessment of sentence.

While the had two previous convictions, both road traffic offences - each of which had resulted in a fine - had never before served a period of imprisonment and therefore he was entitled to the “protection” of section 204(2) of the Criminal Procedure (Scotland) Act 1995.

The appellant, who had been in regular employment since leaving school, was also assessed as posing a “low risk of reoffending”, and a community payback order with unpaid work was available as a direct alternative to custody.

‘Excessive sentence’

Allowing the appeal, the judges observed that but for his age the sentence imposed would not have been excessive.

Delivering the opinion of the court, Lord Turnbull said: “It is of course also relevant to take account of the fact that two individuals were seriously injured, with continuing consequences for each. The previous convictions which the appellant has, whilst not serious offences, are in relation to road traffic matters, one being a conviction for careless driving which resulted in a significant financial penalty.

“In our opinion, the offence which the appellant committed was a serious one of its type. Given our assessment of the level of culpability involved and the level of harm which resulted, the sheriff was correct to conclude that a custodial sentence was the only appropriate method of dealing with the appellant. That was the appropriate conclusion to reach despite the application of 204(2) of the 1995 Act.

“Were it not for the submission concerning the appellant’s age at the time when the offence committed we would be inclined towards the view that the sentence could not be described as excessive. However, we accept the submission advanced on the appellant’s behalf that account ought to have been taken of the fact that he was a young man and was relatively immature at the time.

“At no stage in his report, or in his sentencing remarks, did the sheriff mention the appellant’s age at the time of the commission of the offence, nor the passage of time which had elapsed. We accordingly conclude that this was not a matter which he gave weight to in selecting the appropriate length of sentence.”

“In these circumstances,” the court concluded, “we shall quash the custodial element of the sentence imposed and in its place we shall impose a sentence of 18 months’ imprisonment, to date from the same date as identified by the sentencing sheriff.”