Crown Appeal Against Sentence By Her Majesty's Advocate Against Russell Mckeever
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lady Dorrian,Lord Bracadale |
| Neutral Citation | [2016] HCJAC 43 |
| Docket Number | HCA/2016 |
| Year | 2016 |
| Date | 01 April 2016 |
| Court | High Court of Justiciary |
| Published date | 03 May 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 43
HCA/2016/000053/XC
Lady Smith
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LORD BRACADALE
in
CROWN APPEAL AGAINST SENTENCE
by
HER MAJESTY’S ADVOCATE
Appellant;
against
RUSSELL MCKEEVER
Respondent:
Appellant: B Erroch AD; Crown Agent
Respondent: C Fyfe; Sol Adv, Bruce, Short & Co, Glasgow
1 April 2016
Introduction
[1] On 7 December 2015 at the High Court at Aberdeen on an indictment in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 the respondent pled guilty to a contravention of section 1 of the Road Traffic Act 1988. On 6 January 2016, after obtaining a criminal justice social work report, the presiding judge sentenced the respondent to 4 years imprisonment discounted from 6 years, disqualified him from driving for a period of 6 years and 8 months, discounted from 10 years, and ordered him to sit the extended driving test. By note of appeal in terms of sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995 the Crown appealed against the sentence of 4 years imprisonment, contending that it was unduly lenient. On 1 April 2016 we refused the appeal, stating that we would later give reasons in writing, which we now do.
The charge
[2] The charge narrated that the respondent caused the death of Colin Taylor by driving a motor car dangerously and having 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 charge went on to narrate that while his ability to drive was impaired through the consumption of alcohol the respondent drove on the opposing lane of the carriageway and collided with another motor car as a result of which Colin Taylor, aged 59 years, was injured and died and Julie Taylor, his wife, was severely injured and permanently impaired.
Previous convictions
[3] The respondent had a number of previous convictions for road traffic matters. In 1996, he was convicted of a contravention of section 143(1) of the Road Traffic Act 1988; he was fined £75 and his licence was endorsed. In 2013, he was convicted of driving at excessive speed; he was fined £100 and his licence was endorsed. In 2014, he was convicted driving while using a mobile phone; he was fined £100 and his licence was endorsed. In 2014, he was convicted of driving at excessive speed; he was fined £120 and his licence was endorsed. At the time of sentence the appellant’s driving licence was endorsed with a total of 9 penalty points.
Circumstances
[4] The circumstances, which were agreed in a narrative placed before the sentencing judge, were as follows. About 12 noon on Friday 31 October 2014 the respondent met his ex-wife Angela McKeever and her friend Claire Anderson at the Bell Tree public house and restaurant in Dundee for a pre-arranged lunch. Whilst at the restaurant the respondent drank approximately a glass of wine. After lunch they bought more wine and the respondent drove Mrs McKeever and Miss Anderson to Miss Anderson’s home address in his black Audi car registered number YX57 OPB. There, more wine was consumed by all. At some point the respondent left, stating that he was going to get a brochure from his car. In the event, he did not return to Miss Anderson’s house but, instead, drove away in his car and travelled on the road between Arbroath and Brechin. It was daylight, the weather was fine, bright but overcast, the road was dry and there were no adverse conditions.
[5] About 3 pm the respondent drove through Colliston village and on towards Brechin. As he approached the Leysmill crossroads, the respondent’s vehicle crossed the centre line of the road into the path of a Citroen Picasso, driven by Colin Taylor; his wife Julie Taylor was sitting in the rear near side seat. The respondent’s vehicle collided with the Citroen killing Mr Taylor and severely injuring Mrs Taylor.
[6] On 1 November 2014 Mrs Taylor underwent twelve hours of surgery to try to repair extensive fractures of both legs, both arms, as well as other injuries. Her injuries included: a laceration to her left ear for which she received 10 stitches; a fractured left shoulder; a fractured left upper arm which later required the fitting of a metal plate; a fractured right arm which required the fitting of a metal pin; broken ribs, a broken femur in both legs; and several fractures to the right foot. She remained in Ninewells Hospital until 20 November 2014 when she was transferred to Kincardine Community Hospital, Stonehaven, for ongoing treatment and rehabilitation. She was released from hospital on 30 December 2015. In addition to physical and mobility problems Mrs Taylor also suffered from a number of other difficulties.
[7] The respondent was also taken to Ninewells Hospital where he was found to have a fractured shoulder; a cut to his elbow, which required two stitches; and a minor laceration to his liver. He was kept in hospital for further observation.
[8] A specimen of blood which was obtained from the respondent at 7.14 pm (about 6 hours after the collision) revealed an alcohol count of 226 milligrams of alcohol per 100 millilitres of blood, the legal limit in Scotland at the time being 80 milligrams per 100 millilitres of blood.
The sentencing judge’s approach to sentence
[9] In determining the appropriate sentence the sentencing judge states that he had regard to the Definitive Guideline on Causing Death by Driving, issued by the Sentencing Guidelines Council in England and Wales. He recognised the need to avoid a slavish adherence to its terms. He assessed the standard of driving involved as being such to have created “a substantial risk of danger”. In assessing the further aggravating factors involved, he took into account the degree of intoxication and the fact that, under reference to his reply to police officers at the scene, the respondent was clearly aware of the extent of his consumption of alcohol. The sentencing judge took into account the record of previous convictions. He also took into account the severe injuries suffered by Mrs Taylor whose future quality of life had been significantly reduced. The sentencing judge described Mrs Taylor’s victim impact statement as “an eloquent exposition of the devastating consequences for her of the collision”.
[10] In mitigation, the sentencing judge was told that the respondent himself was having difficulty in coming to terms with the realisation of the effect of his...
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