Her Majesty’s Advocate v. Russell McKeever [2016] HCJAC 43

Crown appeal against sentence:- On 7 December 2015, at Aberdeen High Court, the respondent pled guilty by accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988. The sentencing judge called for a Criminal Justice Social Work Report and on 6 January 2016 the respondent was sentenced to 4 years imprisonment discounted from 6 years, disqualified from driving for a period of 6 years and 8 months, discounted from 10 years, and ordered to sit the extended driving test. The Crown appealed against the sentence of 4 years imprisonment on the grounds that it was unduly lenient. The circumstances of the offence were that the respondent had consumed so much alcohol that the proportion of it in his blood was not less than 226 mg of alcohol in 100 ml of blood (the legal limit in Scotland at the time being 80 milligrams per 100 millilitres of blood) and his ability to drive was impaired and he drove on the opposing lane of the carriageway and collided with another motor car causing the death of Colin Taylor, aged 59 years, and caused Julie Taylor, his wife, to be severely injured and permanently impaired. The respondent had a number of previous convictions for contraventions of the Road Traffic Act including speeding and at the time of his conviction in relation to the present offence he had 9 penalty points. The sentencing judge had regard to the Definitive Guideline on Causing Death by Driving issued by the Sentencing Guidelines Council in England and Wales and assessed the standard of driving involved as being such to have created “a substantial risk of danger”. In weighing up both the aggravating and mitigating factors the sentencing judge considered that the headline sentence before discount was six years imprisonment and a 10 year period of disqualification. Here it was submitted on behalf of the Crown that the sentencing judge had failed to give due weight to the gravity of the offence and, in particular, the respondent being almost 3 times the legal limit for alcohol, and causing the death of one person and the serious injury to another whilst having a record for road traffic offences including speeding. It was further submitted that the level of discount of a third was excessive particularly when viewed together with the headline sentence and the fact that the section 76 letter was not submitted until some 8 months after his first appearance on petition all of which resulted in the sentence being unduly lenient. Here the court refused the appeal. The court stated that before it could categorise a sentence as unduly lenient it must have fallen outside the range of disposals which the judge at first instance, considering all the relevant factors, could reasonably have considered appropriate. The court considered that whilst the level of alcohol in the blood was very high there was no indication of excessive speed or of any dangerous manoeuvres being performed. The court considered that the sentencing judge had taken all relevant circumstances into account and had appropriately selected level 2 of the Definitive Guideline as applicable and fell within the range of disposals available. In relation to the level of discount applied the court reaffirmed that it is primarily a matter for the discretion of the sentencing judge and it could not be said that the sentencing judge erred in allowing the level of discount which was applied.