Appeal refused [Lords Menzies & Philip] and disqualification reimposed.

UNTO THE RIGHT HONOURABLE THE LORD JUSTICE-GENERAL THE RIGHT HONOURABLE THE LORD JUSTICE-CLERK AND THE LORDS COMMISSIONERS OF JUSTICIARY

______________

REPORT

By

James Peterkin Scott, Advocate,

Sheriff

In

The Sheriffdom of Lothian and Borders

at

Edinburgh,

In causa

Anthony Denholm White,

Appellant,

Versus

Procurator Fiscal, Edinburgh,

Respondent

[ Under the Criminal Procedure (Scotland) Act 1995 ]

My Lords,

The appellant was charged with dangerous driving contrary to section 2 of the Road Traffic Act 1988, as amended [‘the Act’]. At a trial diet on 24^th May 2012 the appellant pled guilty to contravention of section 3 of the Act, which plea was accepted by the respondent’s depute.

Having heard the respondent’s depute and the appellant’s agent, and having considered a schedule of previous convictions, I fined the appellant £300 (restricted from £400), disqualified him from holding or obtaining a driving licence for a period of six months, and ordered endorsement of his licence. The appeal is restricted to the disqualification element of the sentence.

The Facts

The charge specified that the appellant, in approaching a railway level crossing, drove at excessive speed for the road conditions and layout, failed to observe the automatic red traffic light signal there, struck the lowered crossing barrier, crossed the railway track while a train was approaching, and struck the opposite crossing barrier, causing the driver of the approaching train to perform an emergency stop to avoid a collision with the appellant’s car, and causing damage to the car and barriers.

I was told that the incident occurred at about 1pm. The appellant’s approach speed was about 39mph. The speed of the train was about 50mph. On seeing a cloud of smoke and debris, the train driver applied the emergency brakes. The train missed the car “by about a second”.

The appellant admitted to the police that he had been the driver of the car. Cautioned in relation to contravention of section 2 of the Act, he replied:

“I didn’t see them and I didn’t hear the warning alarm. I didn’t see the lights because the sun was right in my eyes. I didn’t want to stop half way through.”

Mitigation

It was a very close call. It is a suburban road. The appellant was driving uphill and due south. The appellant was blinded by the low sun. His brother was chatting on a phone. Having struck the first barrier, he realised that a train was coming and carried on to get out of the way of the train.

He accepts that he should have stopped the car.

He is 42 years old. He thinks that he has 6 penalty points on his licence. He receives benefits at the rate of £72. He has a drug problem and receives Methadone on prescription. He has unpaid fines amounting to about £500. He has completed application forms to have payments towards the fines deducted from his benefits.

His driving licence is important. He worked as a ground worker. He hopes to get a small van and start his own gardening business.

The accident occurred as a result of momentary inattention.

Sentence

I concluded that the appellant’s carelessness lay at the more serious end of the spectrum of section 3 offences and that it merited a substantial fine and a significant period of disqualification. I restricted the starting point of the fine to take account of the appellant’s limited income.

Grounds of Appeal

(i) this ground of appeal is relevant to any discretionary sentencing discount following a plea of guilty.[1]

(ii) while the appellant has no analogous previous convictions, I noted that between February 2008 and February 2009 he acquired 3 convictions for using a vehicle without insurance. While I did not attach a great deal of weight to the appellant's record, it does not fall to be ignored completely.

(iii) As noted above, I was told that (a) the appellant is in receipt of benefits; (b) he had applied for unpaid fines to be paid out of benefits; and (c) he hoped to buy a van and set up in business.

(iv) As noted above, I considered that the offence lay at the more serious end of the spectrum of careless driving offences. The appellant continued to drive at a speed of about 39mph when he was completely blinded by the sun and when, on his account, the level of noise in his vehicle was such that he could not hear the warning signal at the level crossing. In these circumstances I considered that a period of disqualification was required in order to deter the appellant and others from driving in such a manner. In my opinion, imposition of penalty points would have been wholly inadequate to meet the gravity of the offence.

(v) I regret to report that I failed to apply a specific discount to the disqualification element of sentencing.[2]

I had in mind to disqualify for 12 months, but I decided to restrict the period to 6 months in view of the fact that the appellant asserted that he hoped to become self-employed. Had I taken the approach required by Gemmel, my starting point would have been substantially longer than 6 months and I would have applied a 25% discount (as I did in relation to the fine).

Having fallen into error, I granted interim suspension.

Humbly Reported by

J.P. Scott

Edinburgh, 20^th June 2012

Appeal refused [Lords Menzies & Philip] and disqualification reimposed.

[1] Gemmel & Others v HM Advocate, 2011 HCJAC 129

[2] Gemmel & Others v HM Advocate, supra.

Дата добавления: 2015-11-16