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HMA v Ulf Koischwitz
Mar 14, 2022
On sentencing Sheriff Martn-Brown made the following statement in Court:
“Mr Koischwitz, I have taken into account what has been said on your behalf by your solicitor, together with the signed affidavit by Pfarrer Matthias Zentner, notarised by Notar Dr Zimmer confirming that you have completed over 200 hours of unpaid work in your local community in Quedlingburg, Germany.
Having completed the equivalent of community payback order, I will admonish you today. Given the passage of time since my decision to defer sentence for good behaviour, I will set out the reasons for my decision again.
Sentencing Decision on 17 February 2021
Last year, I took into account what was said on your behalf by your solicitor, the written plea in mitigation, the translated character references, the offer of unpaid work at the charitable organisation in Germany, as well as the terms of the report from criminal justice social work and the victim impact statements. Ultimately, after careful consideration, I decided that an alternative to custody was available in your case.
Firstly, I disqualified you from driving for a period of three years. That was reduced by one third to two years in light of your guilty plea at the outset. It was also backdated to the date of your interim disqualification on 10 November 2020.
Secondly, I decided to defer sentence for a period of 12 months to enable you to carry out unpaid work in Germany. I was unable to impose a community payback order with a requirement for unpaid work outwith Scotland. Had I been able to do so, I would have imposed the maximum amount of unpaid work, which is 300 hours. That would have been reduced by one third to 200 hours in light of your guilty plea at the outset and would have been an alternative to custody. I would have allowed two years for you to complete those hours in light of the pandemic.
Instead, you identified a charitable organisation based in Germany for whom you could carry out unpaid work, which could be verified by a German Notar by way of an affidavit from your supervisor within the charity. I requested an update in 12 months’ time on the amount of hours that you had completed and indicated that if you did not complete at least 200 hours of unpaid work in Germany within two years, it would be open to me to impose a custodial sentence.
I am pleased to see that you have completed all of the hours within one year, despite the pandemic, which demonstrates that you have prioritised your unpaid work appropriately.
Reasons for Decision
As you have acknowledged throughout, the offence of causing death by careless driving is one of the most serious driving offences and would usually attract a custodial sentence. It is clear from the victim impact statements that Mr Lewis was loved, respected and admired by those who were fortunate to have known him. His widow Mrs Lewis said that her husband was first and foremost a family man. He was a loving husband, father and stepfather, son, brother and grandad. Mrs Lewis and her son have both suffered psychologically as a result of Mr Lewis’ death.
However, section 204(2) of the Criminal Procedure (Scotland) Act 1995 provides that I may not impose a custodial sentence on a first offender unless no other method of dealing with you is appropriate. You have no previous convictions in any jurisdiction.
For the reasons that I outlined last year, which I will explain again today, I was satisfied that a non-custodial sentence was appropriate in the particular circumstances of this case, which were unusual.
Firstly, the collision was solely due to a momentary lapse in attention on your part. You were on holiday with your family in your left hand drive campervan. You were looking for a turning spot, slowed down and indicated to turn right. You looked straight ahead and saw that the road was clear. You looked to the left out of a matter of habit. You checked the rear view mirror. You then began a slow right hand manoeuvre, without checking straight ahead again. During the approximately four seconds between you last checking the road ahead was clear and you beginning your manoeuvre, Mr Lewis travelled down the road on his motorcycle and there was nothing he could do to avoid the collision. There was no suggestion of drink, drugs, tiredness, distraction, speeding or driving aggressively on your part.
You were involved with others with the immediate assistance offered to Mr Lewis, but his injuries were too severe and despite the best efforts of bystanders, police and paramedics, he did not survive.
Secondly, you accepted responsibility for the collision and pled guilty at the earliest opportunity. You made no attempt to minimise or excuse your actions.
Thirdly, you expressed considerable remorse for the death of Mr Lewis. You expressed that in a letter that you wrote to Mr Lewis’ family and friends in English, which was read out to the court on 10 November 2020.
Fourthly, you were assessed by criminal justice social work as representing a minimum risk of reoffending. It is clear from their report that you recognised the massive impact and consequences that this offence had wrought upon Mr Lewis and his family. You were assessed as a suitable candidate for unpaid work for the public good in Germany.
The Scottish Sentencing Council’s Principles and Purposes of Sentencing Guideline makes it clear that in weighing up all the relevant factors of your case, I am required to impose a sentence which is no more severe than is necessary.
I was of the view that in light of all the particular circumstances of this unusual case, deferring sentence for 12 months to enable you to carry out the equivalent of a community payback order with a requirement of unpaid work in Germany achieved the purposes of punishment and societal disapproval, as well as the opportunity for effective rehabilitation and to make amends.
Having completed that unpaid work, I shall admonish you today.”
14 March 2022