Murray Albert Geddes Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Bracadale,Lord Malcolm |
| Neutral Citation | [2015] HCJAC 43 |
| Date | 29 April 2015 |
| Year | 2015 |
| Docket Number | HCA/2015 |
| Court | High Court of Justiciary |
| Published date | 27 May 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 43
HCA/2015/16/XC
Lord Justice Clerk
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST SENTENCE
by
MURRAY ALBERT GEDDES
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Moggach; James McKay, Elgin
Respondent: Carmichael AD; the Crown Agent
29 April 2015
General
[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.
Circumstances
[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.
Mitigation
[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...
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