Michael Dulus v. Her Majesty’s Advocate [2016] HCJAC 91

Note of appeal against sentence:- On 21 October 2015, at Forfar Sheriff Court, the appellant pled guilty on indictment at a continued first diet to a contravention of section 1(a) of the Road Traffic Act 1988 in that he did drive dangerously and collide with another vehicle as a result of which the driver of the other vehicle was seriously injured. The sentencing sheriff called for a Criminal Justice Social Work Report and on 18 November 2015 the appellant was sentenced to 27 months imprisonment, discounted from 36 months on account of the plea of guilty. In addition, the appellant was also disqualified from holding a driving licence for 5 years. The appellant appealed against the sentence imposed on the grounds that it was excessive. It was submitted on behalf of the appellant that having regard to the appellant’s personal circumstances including his lack of previous convictions, his work history, the favourable CJSWR, his expressions of genuine remorse and the absence of any of the aggravating features outlined in the sentencing guidelines there was an appropriate alternative to a custodial sentence in terms of section 204 of the Criminal Procedure (Scotland) Act 1995. It was submitted that a Community Payback Order was an appropriate alternative to a custodial sentence. It was further submitted that, in the event that the court took the view that custody was the only appropriate sentence, the headline figure of 36 months before discount, in the context of the maximum sentence for this particular statutory contravention being limited to 5 years, was excessive. Here the court allowed the appeal to the extent of reducing the custodial term to a headline figure of 24 months, discounted by the same proportion as the sentencing sheriff, resulting in a sentence of 18 months imprisonment. The court observed that the only appropriate sentence was custody. The court accepted that the appellant was a person of good character with no previous convictions and that many of the aggravating features of dangerous driving were not present. However, the court considered that there were features that meant that a custodial sentence was the only appropriate sentence including that the dangerous driving included attempting to overtake two cars going into a blind bend and the serious injuries suffered by the driver of the other vehicle. Those serious injuries had resulted in significant ongoing difficulties including him suffering from post traumatic stress disorder and his ability to work had been curtailed significantly as a result of the injuries he had suffered which included bilateral femur fractures, serious ligament injury to his right ankle and a metatarsal fracture.