[2015] HCJAC 43


Lord Justice Clerk

Lord Bracadale

Lord Malcolm












Appellant: Moggach; James McKay, Elgin

Respondent: Carmichael AD; the Crown Agent


29 April 2015

[1]        On 23 September 2014, at the High Court in Edinburgh, the appellant pled guilty, under the accelerated procedure provided in section 76 of the Criminal Procedure (Scotland) Act 1995, to a charge which libelled that:

“on 16 May 2014 on … [the] A941 Craigellachie to Rothes Road … you … did cause the death of Graeme Ross McKenzie … by driving a … car … dangerously and … having consumed an excessive amount of alcohol, overtake when it was unsafe to do so, drive close to a preceding vehicle and drive at excessive speed for the road conditions whereby you lost control of the [car] whereby it left the road causing … Graeme Ross McKenzie to sustain injuries from which he died there and then: CONTRARY to the Road Traffic Act 1988, Section 1.”


On 18 December 2014, the appellant was sentenced to 9 years imprisonment, that period having been reduced by 2 years to reflect the early plea.  He was disqualified from driving for 12 years and ordered to sit the extended driving test.


[2]        The appellant was aged 37 at the material time.  He was an offshore driller and lived in Aberlour.  He was driving his Audi S3 Quattro.  This has a 2 litre engine, producing 265 bhp.  The deceased, who was aged 38, was his friend and the passenger in the car.  The locus was the A941 Aberlour to Rothes Road near Craigellachie. 

[3]        The appellant and the deceased had met at about 12 noon.  They commenced drinking.  At about 3.40pm, the appellant drove the deceased from his house to the nearby Aberlour Hotel, where they continued drinking.  At some point the appellant drove home to collect his wallet, but returned to the hotel.  At about 4.00pm, the appellant and the deceased were asked to leave the hotel, because the deceased had offended a member of the bar staff.  The appellant had planned to take a taxi, but decided to drive, having been told that he would have to wait for about an hour.  By this time the deceased was “falling about”.  In due course, a back calculation from the appellant’s blood sample indicated that he had a blood alcohol level of 158mgs per 100ml (ie about double the then legal limit).  

[4]        The appellant was seen to be driving at an excessive speed and in an erratic fashion as he overtook a HGV and two cars, which had themselves been travelling at about 50mph.  A driver in the opposite direction thought that the appellant had been driving at about 95mph.  The appellant lost control of the car on an open right-hand bend.  The car went down an embankment, into a ditch and struck a tree stump.  It became airborne before spinning and landing back on its wheels.  The deceased had not been wearing a seatbelt.  He was thrown from the car and suffered head injuries which killed him instantly. 

[5]        On 22 April 2014 the appellant had been convicted of speeding at 93mph in a 60mph zone in March 2014.  He was fined £350 and had 5 penalty points endorsed on his licence.  This conviction was less than a month before the offence.  He had also been ordered to find caution of £500 in respect of a breach of the peace in 2003.


[6]        The appellant lived with his partner of 8 years.  They were expecting their first child.  He has now been born.  The appellant is a native of the Aberlour/Rothes area.  He had recently moved back to Aberlour having spent some years in Aberdeen.  He had had an uneventful childhood amongst a supportive extended family.  He left school at 16 and completed an apprenticeship in painting and decorating.  He worked in that trade until starting off-shore employment about 9 years ago.  Latterly he had been earning £75,000 per annum.  Testimonials vouched his steady work record.

[7]        In 2007 the appellant had been the victim of a violent assault, which had resulted in the loss of his left eye.  The perpetrators were convicted but the appellant had been unable to work for 9 months.  This incident had had a significant impact on the appellant both physically and emotionally.

[8]        The appellant accepted full responsibility for the death of his close friend.  He had shown genuine remorse.  He could offer no reasonable explanation for his impulsive and reckless actions.  He was aware of the impact on the deceased’s family, including his 12 year old son, and friends.  The appellant had had suicidal thoughts since the accident and had been prescribed anti-depressants. 

[9]        Impact statements from the deceased’s family, including his parents (he was their only son), sister and son (the deceased was killed on his 12th birthday), detailed the extent of the impact on their daily functioning.


The English Guideline

[10]      In selecting the appropriate level of imprisonment, the sentencing judge sought to apply the Definitive Guideline on Causing Death by Driving, published by the English Sentencing Guidelines Council in July 2008 (see HM Advocate v McCourt 2013 SCCR 646; HM Advocate v Noche [2011] HCJAC 108).

[11]      The Guideline advocates a highly structured approach which involves, first, identifying the “Level” of the offence, within 3 groups by reference to defined criteria.  Each level prescribes a starting point and a sentencing range.  For present purposes, it was not disputed that the appellant’s driving fell within the most serious group (Level 1), being one of:

“The most serious offences encompassing driving that involved a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others “.


This is distinguished from driving that creates a “substantial” (Level 2) or “significant” (Level 3) risk of danger.  It is explained that Level 1 will involve a prolonged, persistent and deliberate course of very bad driving and/or consumption of substantial amounts of alcohol leading to gross impairment.  A Level 1 offence produces a sentencing range of 7-14 years custody, with a starting point of 8 years.  In that respect, the approach in England commences with a focus on the offence rather than the offender and, in effect, produces a relative range with a lower limit which is not prescribed by the statute.

[12]      Certain “additional” aggravating factors will increase the headline sentence from the starting point.  These include previous convictions for motoring offences, particularly those involving bad driving or alcohol.  They encompass situations where there is more than one deceased or where others are seriously injured.  They involve ignoring warnings, committing other offences at the time (such as driving whilst disqualified or in a stolen car), irresponsible post accident behaviour (failing to stop, falsely incriminating others as the driver) and generally attempts at avoiding detection.  Mitigation, which would decrease the starting point, includes the fact that the victim was a close friend.

[13]      It is only once this exercise has been completed that personal factors come into play.  Until then, the sentence must fit within the sentencing range.  Included at this point is remorse.  It is this type of factor which can reduce the sentence below the minimum in the range.  Thereafter, the discount for a plea of guilty is applied, before an overriding “totality principle” ought to be used to ensure overall proportionality with (again) the offending behaviour.


The Sentencing Judge’s approach
[14]      The judge first determined that the driving was in the Level 1 group.  As indicated above, this produced a sentencing range of between 7 and 14 years, with a starting point of 8 years custody.  He then sought to identify relevant aggravating factors.  These included the manner of the appellant’s driving, the amount of alcohol consumed, his repeated driving whilst under the influence of alcohol, his awareness that he ought not to have been driving in his condition and generally his driving not being simply a “momentary aberration”.  As a result, the judge increased the headline figure to 11 years.  He next looked at the mitigating factors, including the absence of a particularly bad record.  There were testimonials to his good character and work ethic.  He had survived the assault in 2007.  On the other hand, the appellant did have the previous conviction for speeding.  Taking these factors into account, which he considered balanced each other, the judge did not consider that there was a basis for reducing the headline figure further. 

[15]      Finally, the sentencing judge took into account the early plea.  The discount was approximately 20%.  A full discount was not given because, although the appellant had first appeared on petition on 19 June 2014, there was no plea tendered until mid-September 2014.  In his sentencing statement the judge commented that the appellant could hardly have done other than plead guilty in the circumstances.  A discount of 2 years was selected, producing a final sentence of 9 years.  The judge considered whether overall the sentence was appropriate and proportionate to the offending behaviour.  He considered that it was. 

[16]      The trial judge’s selection of 12 years as a period of disqualification followed the suggestion in the Guideline that it should:

“either equate to the length of the custodial sentence imposed (in the knowledge that the offender is likely to be released having served half of that term) …”.


That would have produced a 9 year term.  However, the judge reasoned that the appellant was not likely to be released until he had served about two-thirds, rather than half, of his term of imprisonment.  If that were so, he would only be disqualified for 3 years post-release.  That seemed to the judge to be too short a period to have the desired impact.  Disqualification for 12 years, meaning that he would be disqualified for 6 years after release, “seemed about right”.


Grounds of Appeal and Submissions
[17]      The grounds of appeal are essentially that the judge’s selection of 9 years imprisonment was excessive, having regard to the starting point of 8 years for a Level 1 offence in the Guideline.  The judge erred in increasing the starting point to 11 years on account of what were said to be aggravating factors.  These factors, which increased the period by 3 years, were those which made the offence a Level 1 case in the first place.  Too much weight had been placed on the speeding conviction, which had been dealt with by way of a fine and penalty points in the JP court.  Furthermore, the amount of discount had not been sufficient.  The judge appeared to have thought that the appellant could have pled guilty when he had first appeared on petition.  However, an accused is not called upon to plead at that stage.  The judge had wrongly taken into account the strength of the evidence against the appellant.  The period of 12 years disqualification would be excessive, if the custodial sentence had been too lengthy.


[18]      It is important to observe that, while the court has encouraged sentencing judges to “have regard” to the English Guideline in death by dangerous driving cases, it has not said that it should “be interpreted and applied in a mechanistic way” (Neill v HM Advocate [2014] HCJAC 67, Lady Clark of Calton at para [11]).  In order to ensure a degree of consistency in this jurisdiction, albeit paying due regard to local circumstances, it may be equally important to have regard to existing precedent (eg Neill v HM Advocate (supra) or Lynn and Logue v HM Advocate [2008] HCJAC 72).  The sentencing judge may wish to consider how a sentence for this type of offence dovetails with modern sentencing developments in relation to Scottish criminal offences generally, including those for, for example, culpable homicide.

[19]      There is considerable force in the appellant’s submissions regarding the sentencing judge’s application of the Guideline.  Once the offence was categorised as Level 1, because of the nature of the driving and the consumption of alcohol, it became illegitimate in terms of the Guideline to augment the sentence by taking the same matters into account as aggravating factors.  In short, even following the strictures of the Guideline, the starting point ought to have been increased to no more than 9 years (having regard to the recent speeding conviction). 

[20]      At that point, the fact that the deceased had been a close friend of the appellant ought to have been taken into account as an “additional mitigating factor”, before the appellant’s genuine remorse came into play as personal mitigation.  These mitigatory factors would have reduced the headline figure to no more than 8 years. 

[21]      The selection of the appropriate discount is primarily a matter for the sentencing judge.  Although it may not be entirely realistic to regard the first appearance on petition as the first opportunity to tender a plea of guilty, when selecting the level of discount, a sentencing judge is certainly entitled to take into account any significant delay between then and the tendering of a section 76 letter.  The fact that a plea is tendered by such a letter does not automatically generate a full one-third discount.  There was a 3 month period between first appearance and the plea.  Although a variety of reasons were tendered to explain the time lapse (relating to legal aid and sanction for counsel), the gap is a factor which a judge can take into account, as is the high level of headline sentence.  Having regard to the headline sentence of 8 years now selected, the court considers that a discount of 2 years is appropriate; thereby reducing the sentence to one of 6 years.

[22]      The Guideline suggestion of matching the period of disqualification from driving to the length of the custodial term may seem reasonable in some cases, but it is not mandatory.  In this case, there is, contrary to the sentencing judge’s view, no reason to suppose that the appellant will not secure parole shortly after serving one-half of his custodial term.  Nevertheless, the court considers that (allowing for an appropriate discount) a period of 8 years disqualification would be appropriate in all the circumstances.

[23]      The appeal is allowed accordingly.