Lady Cosgrove

Appellant: Ross, Advocate; Lindsays

Respondent: Henderson, A.D.; Crown Agent

1 February 2006

[1] The appellant pled guilty at the High Court at Glasgow on 16 June 2005 at a continued preliminary hearing to a charge in the following terms:-

"On 24 July 2004 on a road or other public place, namely the A739 between the Clyde Tunnel, Glasgow and Crow Road, near to its junction with Southbrae Drive, Glasgow, you did drive a mechanically propelled vehicle, namely motor vehicle registered number YR02 XLY then displaying the number plate 2FAST4U dangerously and did drive said vehicle at excessive speed, overtake and undertake other motor vehicles on said roads and cause said vehicle to strike David Burns, ..., a pedestrian then crossing the road there whereby you were injured, said motor vehicle was damaged and David Burns was so severely injured that he died: CONTRARY to the Road Traffic Act 1988, section 1 as amended".

[2] The circumstances giving rise to the fatal road accident caused by the appellant are fully described in the sentencing judge's report. The appellant, who was 23 years of age on the date of the accident, was driving a Honda CBR 900cc motorcycle, registered number XR02 XLY. At the time of the accident the motorcycle was not displaying a number plate relating to that registration. It bore the number plate 2FAST4U which was normally used by the appellant when he took part in motor cycle racing. The accident occurred at approximately 00.30 hours on the morning of 24 July 2004 at a point on the northbound carriageway of the A739 Crow Road, Glasgow, opposite the entrance of a BP service station on the west side of the road. At the locus of the accident, Crow Road is a single carriageway, which runs north and south, with two lanes in either direction. The north and southbound lanes are separated by hazard warning lines, designed to indicate to road users the existence of unspecified hazards. The hazards at the locus include various junctions with other roads and entrances on both sides of Crow Road.

[3] Immediately prior to the accident, the appellant, having exited the Clyde Tunnel, was riding his motorcycle northwards. The speed limit at that point is 30mph. Once the road levels off, the speed limit increases to 40mph. The road at this point is named Balshagray Avenue and is a dual carriageway, classified as the A739. The road continues north on a slight downhill gradient and then moves into an uphill gradient, through a traffic light controlled junction with Victoria Park Drive North. The road then forms a left hand bend, before extending straight, still on an uphill gradient. The road then levels off and forms a slight left hand bend. At this left hand bend, at a further traffic light controlled junction, the speed limit reduces to 30mph. For traffic exiting the junction in a northerly direction, the road becomes Crow Road. The speed limit on Crow Road on the approach to and at the locus of the accident is 30mph.

[4] On the evening of 23 July 2004 the deceased had been in the company of friends and had gone to the BP service station on Crow Road to purchase cigarettes. After he had done so, he began to walk across Crow Road towards a taxi that was waiting on the southbound carriageway.

[5] Around this time the appellant was driving his Honda motorcycle at an excessive speed on Balshagray Avenue, heading towards the junction with Crow Road. As he exited from the Clyde Tunnel, the appellant revved up the motorcycle's engine. He was travelling behind one car, which he overtook. He then undertook another car and then "really floored it". When interviewed by police officers, the driver of the car that was overtaken by the appellant said:

"I've never seen a manoeuvre like that before on the road, only on racing films on telly. I thought he was crazy. I thought he must have been going about 100mph. He just disappeared so quickly".

[6] The driver of the next car the appellant passed, by undertaking, estimated his own speed at about 40mph and that of the appellant at between 80 and 90mph. That witness informed the police that he remembered thinking: "For fucks sake. That's an accident waiting to happen". He stated to the police: "The way he rode past me, I considered to be dangerous".

[7] The next road users whom the appellant passed were in a car which was in the right lane for northbound traffic at the traffic lights at Balshagray Avenue. They were undertaken by the appellant going "like a bat out of hell". One passenger said to the driver: "Look at that idiot, the speed he is doing". The appellant then lent over, very low on his motorcycle, as he carried out his next overtaking manoeuvre. As he did so, the motorcycle wobbled before the appellant straightened it up. Once he had done so, the appellant accelerated his motorcycle. His speed, before doing so, was estimated at 70mph. The female passenger in the car commented to her husband: "He's not in control of that bike".

[8] The appellant approached the locus of the accident just as the deceased reached the offside of the two lanes on the northbound carriageway. The appellant was travelling at an excessive speed. The taxi driver, whose taxi was parked opposite the locus of the accident, thought the pre-impact speed of the motorcycle to have been about 60mph. Due to the speed at which he was travelling, the appellant was unable to avoid a collision and the front left hand side of his motorcycle struck the deceased. The deceased was thrown up into the air and backwards. The appellant fell from his motorcycle. The speed of the motorcycle was such that, after striking the deceased, it continued to travel northwards, riderless and still in third gear. It eventually mounted the west footpath of Crow Road, some 157 metres north of the point of impact with the deceased. Having mounted the footpath, the motorcycle fell over onto its side and slid along the footpath before finally coming to rest. The emergency services were contacted immediately and the deceased was taken to hospital. Whilst still receiving treatment within the Accident and Emergency Department of the Western Infirmary, he succumbed to his injuries and life was pronounced extinct.

[9] The sentencing judge indicates that it was explained to him that, on the evening prior to the accident, the appellant's wife had suffered a road accident while she had been riding a motorcycle. This required her to be taken to hospital for treatment. The appellant had followed her there on his own motorcycle. Having been advised that his wife was not going to be detained and could go home, the appellant was travelling back to the family home to collect a car when the fatal accident had occurred. It was explained to the sentencing judge that the appellant's hobby was his interest in motorcycles. It was a passion which he enjoyed with members of his own family and his extended family. The motorcycle he had been driving at the time of the accident had been given to him by his father some 2 years previously. It was a very powerful vehicle, which was capable of accelerating to very fast speeds in a few seconds. Its capabilities were such that in many respects it was more suitable for racing on a private racetrack, rather than being driven on the public road.

[10] The sentencing judge was addressed in mitigation on behalf of the appellant and it was stressed that he was keenly aware that his grossly irresponsible driving had been responsible for the accident. It was stressed that he wished to make clear his profound regret for his actions which had led to the death of the deceased and the suffering which the relatives of the deceased had endured and would continue to endure. It was also stressed that the appellant came from a very close family. He was employed by his father in the family ironmongers business. A number of character references and testimonials were produced that spoke of the appellant being a person of good character who had been hardworking and a responsible member of the community and who had been liked and respected throughout his life. He had not ridden a motorcycle since the date of the accident.

[11] The sentencing judge imposed a sentence of 51/2 years imprisonment on the appellant and informed him that had he been convicted after trial, the sentence he would have imposed would have been one of 7 years imprisonment. He explains that he chose a starting point of 7 years in view of the gravity of the offence. There was a prolonged and deliberate course of bad driving on the part of the appellant. The driving involved greatly excessive speeds and the wilful disregard of the speed limits displayed on a number of road signs. Furthermore, both the undertaking and overtaking of other road vehicles could be considered to have been aggressive driving, particularly when regard is had to the speeds involved and the manner of the driving, as described by the witnesses

[12] At the hearing before us Mr Ross, counsel for the appellant, submitted that although it was accepted that a long term sentence was fully justified in the circumstances, the starting point selected by the sentencing judge was excessive when compared with other cases of a similar type. He referred in particular to Morrow v HM Advocate, 12 May 2005, Dingwall v HM Advocate 2005 S.C.C.R.700 and HM Advocate v Southwick [2005 HCJAC 106].

[13] We are not persuaded that the sentence of 51/2 years imposed by the sentencing judge was excessive. Drivers must know that causing death by driving dangerously is a grave offence. It also has to be kept in mind that Parliament has recently seen fit to reflect its view of the nature of the offence by increasing the maximum sentence of imprisonment from ten to fourteen years. In a case of this kind the severity of the punishment will be determined, to a large extent, by the culpability of the dangerous driving at the time; and each case will depend upon its own particular circumstances. We are influenced in this case by the impact that the appellant's manner of driving clearly had on a number of independent witnesses and the fact that it was persisted in for a distance of about one mile. The serious consequences here were by no means a freak result of momentary bad driving. The accident that ultimately occurred was a readily foreseeable consequence of the speed at which the appellant was driving - he was travelling far too fast to take account of the situation which emerged. In these circumstances, notwithstanding the appellant's background and character, we find ourselves unable to conclude that the sentencing judge has exceeded the reasonable exercise of his discretion. The appeal against sentence is accordingly refused.