Jamie Anthony Fleming v. Her Majesty's Advocate [2012] HCJAC 12A

Criminal Note of Appeal Against Sentence:- On 11 June 2012 the accused pled guilty by accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to a contravention of Section 3ZB as amended of the Road Traffic Act 1988  and a contravention of Section 3A(1)(b) of the Road Traffic Act 1988, namely, causing the death of his passenger by driving a motor vehicle at a time when he was committing the offence of using a motor vehicle whilst uninsured and causing the death of his passenger by driving without due care and attention, having consumed so much alcohol that the proportion of alcohol in his blood exceeded the prescribed limit. On 19 July 2012, the sentencing judge imposed a sentence of 6 months imprisonment on charge (1) and one of 5 years imprisonment on charge (2), disqualified the appellant from holding or obtaining a driving licence for a period of 6 months on charge (1) and for a period of 8 years on charge (2) and thereafter until he has passed the extended driving test. The sentencing judge ordered that the sentences on charges (1) and (2) should run concurrently with each other from 19 July 2012. On account of the appellant's pleas of guilty the sentences of imprisonment had been reduced from a headline sentence of 9 months in respect of charge (1) and one of 7 years in respect of charge (2) and the periods of disqualification from holding or obtaining a driving licence were also discounted from one of 12 months on charge (1) and one of 12 years on charge (2) for the same reason. The appellant appealed against the sentence imposed in respect of charge (2). It was argued that both the sentence of imprisonment and the period of disqualification from holding or obtaining a driving licence were excessive. It was submitted on behalf of the appellant that the careless driving had been momentary due to a brief period of distraction albeit it was conceded that the driving fell into the middle category of careless/inconsiderate driving within the Definitive Guideline. It was further submitted that the appellant had never served a custodial sentence, had a good work record which was vouched, had displayed immediate concern and remorse, that the deceased was a close friend of the appellant, the fact that the appellant had not intended to drink alcohol that evening and also that the appellant himself had sustained an injury. Here the court considered the circumstances of the offence and whether the sentencing judge had been correct to categorise the driving as being in the middle category of carelessness as set out in the Definitive Guidelines and whether a period of 5 years was excessive particularly in light of the speed that the appellant was driving at, noted as being in excess of 75mph. The court also went on to consider whether the period of disqualification was excessive.