SENTENCING STATEMENTS

On sentencing, Sheriff Andrew McIntyre said:

"The sentence will be a cumulo sentence of imprisonment; that is one sentence covering both charges.  The period of imprisonment will be 21 months but that period will be modified to 14 months to give credit for the accused’s plea of guilty.  I will now explain the reasons for my decision.

In deciding on the appropriate sentence I am required to make an assessment of the nature and seriousness of the offence.  The seriousness of an offence is determined by two things: the culpability of the offender and the harm caused by the offence.

In assessing culpability, the court must assess the blameworthiness of the offender at the time of committing the offence.  In this regard I must keep in mind that the accused was aged 20 at the time of commission of the offence.  

I must also consider the extent to which the accused intended to cause harm by his conduct.  Now, it is plain that the accused caused very considerable harm by his conduct and I will come back to this in a moment.  Nonetheless, he did not intend to cause harm.  The harm was caused to his friends.  He did not set out to harm them and, from the social work report, it is clear that the accused is, understandably, devastated by the consequences of his actions.  In this sense the case is different from, for example, a case involving violence in which a person deliberately seeks to harm or injure another person.  Nonetheless, the accused’s conduct was utterly reckless.  He may not have set out to harm his friends but he deliberately drove after consuming alcohol and, thereafter, while unfit to drive, he drove at exceptionally high speeds.  This was not an accident.  Neither is it a case in which the accused’s driving was careless.  The accused deliberately, and through a series of decisions, voluntarily assumed a very serious risk not only to his own life, but to the lives of his passengers and, for that matter, anyone who might have come across his path.  As a person who had been granted a licence to drive, the accused knew, or ought to have known, of the risks that would arise from driving in the manner and circumstances that he did.  Weighing these considerations, I consider that the degree of culpability is high for this type of offence.

I must also take account of the accused’s age and level of maturity at the time he committed the offence.  Sentencing guidelines for Scottish judges, to which I must have regard, acknowledge: that young people are generally less able to exercise good judgement when making decisions; that they may be less able to think about what could happen as a result of their actions, including the impact of their actions on their victims; and that they may be likely to take more risks.  None of these considerations provide either a defence or an excuse for criminal conduct and it is for that reason that, notwithstanding his age, the accused has been prosecuted and has pled guilty to this offence. 

The guidelines also make clear that all sentences remain open to the court.

Nonetheless, the guidelines do provide that the factors to which I have just referred are relevant to an assessment of the culpability of a young person.  The guidelines provide that the culpability of a young person will generally be lower than that of an older person who is to be sentenced for the same offence.  Weighing those considerations in the balance I have concluded that the accused’s degree of culpability, though high, is reduced by reason of his young age.

In assessing the seriousness of the offence, I must also take into account the level of harm caused by the accused’s conduct.  An offence is, generally, to be regarded as more serious the greater the amount of harm which results.  The harm resulting in this case is, in my view, at the highest level for this offence.  That is self-evident and is not in dispute.  The accused’s conduct has had a profound effect on his two young passengers.  Both suffered very serious injuries and, in the case of one, the injuries will be life long and have been life changing.  It is obvious that the level of harm caused by the accused’s conduct was very high.  The offence is also made more serious by the fact that serious injury was caused to, not one, but two young people.

I have mentioned a number of factors which make this offence more serious and other factors which mitigate it.  I must also take into account certain other mitigating factors.  Those are: the accused’s good character and the fact that he has no previous convictions.

I must also consider sentencing guidelines on the principles and purposes of sentencing.  It is important that the sentence is fair and proportionate in the circumstances of the offence, and that the sentence is no more severe than is necessary to achieve the appropriate purposes of sentencing.  On the other hand it is also important that the sentence is not unduly lenient. 

The purposes of sentencing may include:

• protection of the public, which may be achieved by a sentence; which deters other people from committing the same offence;
• punishment;
• rehabilitation;
• giving the offender the opportunity to make amends; and
• expressing disapproval of offending behaviour.

These are all purposes which a sentence might serve.  The most important aim or purpose of a sentence will depend on the crime and the offender.  However, sentencing guidelines also make clear that rehabilitation is a primary consideration when sentencing a young person.  When selecting a sentence the court should, where appropriate, seek to rehabilitate the young person and, by that means, reduce the risk of reoffending.

This is an exceptionally difficult case. 

Having given the matter very serious consideration, and having weighed all of the factors presenting, I have decided that the offence is so serious that only a prison sentence can adequately serve the interests of justice.  Rehabilitation is a primary consideration when sentencing a young person but it is not the only consideration.  In the circumstances of this case I do not believe that the accused’s prospects of rehabilitation will be materially improved by a non-custodial sentence, nor do I consider that they will be materially harmed by a custodial sentence.  I do accept that the offence has had a significant effect on the accused.  He has shown remorse.  I accept that he is at low risk of re-offending.  That is all to his credit.  However, I have come to the conclusion that to impose anything other than a prison sentence for such a serious offence would be unduly lenient.  A non-custodial sentence would be very far outwith the range of sentences in the English guidelines to which I was referred and which can be used as a “cross-check” in the Scottish courts.  A non-custodial sentence would also be so far out of touch with previous sentences in the Scottish courts that it would plainly be unduly lenient.  In any event, a non-custodial sentence would, in my view, fail to express adequate disapproval of the conduct.  I do not believe that a community based sentence would provide a sufficient, or just, punitive element to the sentence. 

In selecting the period of imprisonment, I take full account of the accused’s good character, his lack of convictions, his remorse, and his young age.  Guidelines on sentencing young people provide that the duration of a sentence of imprisonment imposed on a young person should be different from that which might be imposed on an older person being sentenced for the same offence. 

In selecting the period of imprisonment I am conscious that, in Scotland, there are not specific guidelines which provide a range of sentences for the offence of causing serious injury by dangerous driving or for drink-driving.  I have, therefore, considered the English Sentencing Council guidelines as a cross-check.  According to those guidelines the harm caused by this offence is clearly at the highest category (Category 1).  Having regard to the factors listed in the guidelines, I believe that the accused’s level of culpability is also at the highest level (Level A).  The guidelines provide that an offence in that category should have a sentence range of between 3 and 5 years imprisonment.  However, in order to give effect to the Scottish sentencing guideline on sentencing young people, I have assessed the accused’s culpability in this case at a lower level (Level B) to take account of his young age at the time of commission of the offence.  The guideline provides that the sentence range for an offence in that category should between 2 and 4 years imprisonment. 

I am not bound by the English sentencing guidelines; they are merely a cross-check.  In the whole circumstances, I have concluded that the sentence should be one of 21 months having regard to the accused’s good character.  I consider that, in this case, it is the imposition of a prison sentence rather than its lengthy duration that is the real punishment.  I consider that a higher sentence would be more severe than is necessary to achieve the sentencing purposes to which I have referred.  The sentence I have selected is lower than the sentence I would have selected in these circumstances had the accused not been a young person at the time of the offence. 

The sentence will be modified to one of 14 months to take account of the accused’s plea of guilty which was entered at the earliest possible stage.

The period of disqualification from driving will be for 7 years.  That period will be modified to 56 months because of the accused’s plea of guilty.  That period of 56 months will be extended by 7 months to take account of the period the accused will spend in custody.  The total period of disqualification from driving will be 63 months.

The accused must take an extended driving test at the end of his period of disqualification if he wishes to be able to drive after that."