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HMA v Grace Ross
Aug 8, 2022
On sentencing, Lord Braid said:
"Grace Ross, in June 2022 you were due to stand trial in the High Court on a charge of causing the death, by dangerous driving, of Joshua Lennon Kerr, known as Josh Kerr, on 22 May 2020 at Balsillie Avenue, Leslie, Fife. Shortly before the trial was due to commence, the Crown accepted your guilty plea to the lesser – but still serious – charge of causing Mr Kerr’s death by careless driving. Mr Kerr was your partner, and both he, and you, were 18 years of age at the time of his death.
"The terms of the charge to which you have pled guilty are that you drove without due care and attention and without reasonable consideration for other persons, in this case, Josh Kerr. You accept that you accelerated harshly uphill, performed a three-point turn at speed whilst in close proximity to Josh Kerr, then drove towards him whilst he was in close proximity to your vehicle when there was a lack of space to pass him safely. You failed to take evasive action, which would have been to stop your vehicle until you could have passed him safely. Instead, you caused your vehicle to collide with him and, tragically, he was pulled underneath your vehicle which then drove over his body and head with catastrophic and fatal consequences.
"Immediately you realised what had happened, you got out of your vehicle (which as a result collided with a fence) and went to Mr Kerr’s assistance. You promptly called the emergency services, and tried to administer first aid to Mr Kerr, but sadly that was to no avail and he died of his injuries. Victim Statements have been lodged by members of Mr Kerr’s family, which speak eloquently and movingly of the extent to which he was a much loved son, grandson and brother. His death has left a massive void in the lives of his family, which can never be filled, and no sentence that I can pass could possibly begin to address that void or to heal the pain caused. It should also be acknowledged that you had been in a relationship with Mr Kerr for some three years, since you were at school together, and he had lived with your family for 18 months. Understandably, his death and the manner of it have also had a severe and long-lasting impact on you. A psychological report lodged on your behalf discloses that you suffered from PTSD and mental health difficulties as a result of the incident and its aftermath.
"I need to comment further on the manner of your driving, and what might have caused it. As far as speed is concerned, police investigators concluded from tyre marks your car had left that the three-point turn was carried out “fluidly, dynamically and swiftly” but collision investigators could not ascertain the actual speed of your car during the three-point turn. Telematics data from your car showed that during the first and perhaps second phase of the three point turn your maximum speed was 8.7 mph. The last telematics data from the vehicle before the collision shows that during the third phase of the three point turn your speed was 2.3 mph, but it is not known how long after that the collision occurred nor what your speed was at the point of collision. In absolute terms, you were not driving at a high speed; what can be said about the speed is that there was plainly insufficient time for you to stop after your vehicle collided with Josh before the wheels went over him. In line with the Crown narrative, I proceed on the basis that your driving fell below the requisite standard because you ought to have been able to react to the presence of Josh Kerr on the roadway; you ought to have been aware that there was insufficient space for your car to pass him safely and you ought to have stopped your vehicle rather than try to pass him. By continuing to try to drive past him as you did, at whatever speed you were driving at, when there was insufficient space, you were guilty of a serious and fatal error of judgment; and it is that error of judgment for which I must sentence you.
"I also need to comment on what you said to police shortly after the accident, when you suggested that Josh Kerr had jumped in front of the car. That is not consistent with the agreed Crown narrative and I will sentence you on the basis that Mr Kerr was in no way responsible for the collision which led to his death.
"As regards what led to your driving in the manner you did, in particular, to your driving off 'at speed', on your own account you had been having a disagreement with Mr Kerr over a financial app on his phone. That is why you had driven to the farm where he worked. The Crown narrative and interrogation of Mr Kerr’s phone appear to confirm your explanation that the disagreement had been amicably resolved. The disagreement may have contributed to your state of mind as you drove away, but I must stress that the Crown do not suggest that in any way, or to any extent, did you intend to cause Mr Kerr any harm as you drove away.
"At the time of the collision you were aged 18 and you were a relatively inexperienced driver, having been driving for only eight months or so. You have not committed any previous driving offences and have no previous convictions of any sort.
"Immediately after the collision, you were arrested and charged with murder, being held in custody until your first appearance in court. An offer to study politics at Dundee University was withdrawn as a result of the allegation of murder. You have always expressed genuine regret and remorse for your actions on 22 May 2020.
"I have the benefit of a Criminal Justice Social Work Report which, among other things, confirms that your remorse is genuine and that you accept responsibility for the consequences of your actions. It also states that you recognise and acknowledge the devastating impact of your actions not only on Mr Kerr but on his family and friends. You remain single. You are assessed as presenting a low risk of re-offending and as suitable for a community based disposal.
"In arriving at the appropriate sentence, I take all of the foregoing into account, in addition to what was said on your behalf by your senior counsel this morning. My first task in deciding what sentence to pass is to evaluate the gravity of your driving. While I accept that this amounted to a single, rather than a sustained, piece of bad driving, the gravity is made worse by the fact that you were driving towards a pedestrian, who falls to be classified as a vulnerable road user who was likely to be injured, at least to some degree, if your car collided with him. I therefore cannot place your driving at the lowest end of the range for offences of this type. On the other hand, given that the driving lasted for a matter of seconds and that your speed in absolute terms was not high nor do I consider that it is at the most serious end of the range. I place it somewhere in the middle of the range or spectrum of culpability.
"There are no aggravating features in your case but there are some personal mitigating features, as follows: first, your attempts to provide assistance after the crash and the remorse which you have expressed in respect of Mr Kerr’s death, which I accept is genuine; second, distinct from your remorse, the PTSD from which you suffered, to which I have already referred; and third, your relative lack of driving experience in combination with your age at the time of the offence.
"You are now aged 21. As such, I am required to, and do, have regard to the Scottish Sentencing Council Guideline on Sentencing Young People. That is relevant in the present case in two ways. First, I must take into account that your lack of maturity might have contributed to the manner in which you drove; second, any sentence which I pass should be different from the sentence which might have been passed on an older person.
"Finally, and for completeness, because you have not previously served a custodial sentence, I am entitled to impose such a sentence only if it can be said that there is no suitable alternative.
"Because of the gravity of the offence, and its consequences, I am satisfied that the custody threshold is met; in other words, that everything else being equal, a custodial sentence would be merited. However, because of the mitigating factors to which I have alluded as well as your age and your plea of guilty, saving the need for a trial, I have come to the view that it cannot be said that there is no suitable alternative to imprisonment. There is a suitable alternative, namely a high-end community-based disposal together with a lengthy period of disqualification from driving.
"I therefore propose to impose, in place of a sentence of imprisonment, a Community Payback Order requiring you to perform 300 hours of unpaid work within 18 months. I make no provision for discount having already taken your plea into account in electing to draw back from a custodial disposal today. On the basis that you understand and accept the terms of the order which I propose to impose, I now accordingly make that order. You will in addition be disqualified from holding or obtaining a driving licence for a period of 5 years. In light of the short period of time for which you had been driving, and the length of the disqualification I am also going to order that you sit and pass the extended test of competence before you will be able to regain your licence."