Kyle Stewart v. Her Majesty’s Advocate [2019] HCJAC 79

Note of appeal against sentence:- In July 2019, at Dundee Sheriff Court, the appellant proceeded to trial in relation to a charge of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988. Prior to the start of the trial the appellant pled guilty to four contraventions of the Road Traffic Act 1988 relating to the defective condition of the tyres of his motor vehicle. The jury found the appellant guilty of the charge of causing serious injury by dangerous driving. The trial sheriff sentenced the appellant to two years imprisonment on the section 1A charge, disqualified the appellant from driving for a period of five years and required that he sit the extended test of competence to drive again. The appellant was admonished in relation to the defective tyre charges. The appellant appealed against the sentence imposed on the grounds that a custodial sentence was inappropriate, or, in the event that a custodial sentence was necessary, that the period selected was excessive. It was submitted on behalf of the appellant that he was 19 years of age at the time of the offence (albeit at the time of sentencing he was to be treated as an adult) and the sheriff gave insufficient weight to his immaturity. Further, a period of almost 2 years had elapsed since the date of the offence and the date of sentencing during which time the appellant had not been in any form of trouble with the authorities. It was submitted on behalf of the appellant that neither of these two factors had been addressed by the sheriff in his report to the court. In addition, it was submitted on behalf of the appellant that he had expressed genuine remorse to the author of the Criminal Justice Social Work Report and he himself had received an injury as a consequence of the incident and had suffered psychologically as a result of the offence and the prosecution and the sheriff had given insufficient weight to these further factors. In addition, the appellant was subject to the application of section 204(2) of the Criminal Procedure (Scotland) Act as he had never previously received a custodial sentence. Here the court considered the sentence imposed for this relatively new offence (since February 2012) with regard to the authorities, including R v Dewdney [2014] EWCA Crim 1722, in which regard was had to the Sentencing Guidelines Council guideline on causing death by dangerous driving to seek guidance on the levels of offending/sentences referred to there. Having regard to the guideline of the SGC the court considered that the appellant’s driving fell into the upper ranges of Level 2 which describes driving of that standard as driving that created a substantial risk of danger, for example, driving at greatly excessive speed, gross avoidable distraction and driving whilst impaired as a result of alcohol or drugs. The court examined the aggravating factors present including the fact that two individuals were seriously injured with ongoing consequences for both and that the appellant had previous convictions which all related to road traffic matters, including a conviction for careless driving which resulted in a significant financial penalty. In the circumstances the court considered that, in light of the level of the assessment of culpability and the harm which resulted, the sheriff was correct to hold that a custodial sentence was the only appropriate disposal in the case. The court did, however, recognise that in light of the age of the appellant the sheriff had given insufficient weight to that factor, indeed no mention was made by the sheriff to his age nor to the passage of time since the offence. In the circumstances the court quashed the sentence of two years imprisonment and imposed a sentence of 18 months imprisonment.