HMA v ROBBIE GEMMELL

At Edinburgh Sheriff Court today, 19 September 2014, Sheriff Gordon Liddle sentenced Robbie Gemmell to 300 hours of unpaid work in the community and banned him from driving for four years after he pled guilty to causing death by driving without due care and attention.

On sentencing, Sheriff Liddle made the following statement in court:

“Robbie Gemmell, you pled guilty, at an early opportunity, to driving a motor car registration number Y947CSH without due care and attention. You lost control of the vehicle causing it to leave the road and collide with a wall resulting in the deaths of all three passengers with you in the car. They were David James Armstrong, Joshua Stewart and Jenna Alice Barbour. Only Jenna Barbour was entitled to drive the car. She was the front seat passenger at the time.

It has emerged that you were not the only teenager ever to get a shot of driving. You were encouraged to be and were the first that night. But that does not detract from the responsibility upon you and the choice you made to drive the car, nor the manner in which you drove it. You had not passed a basic test of competence to drive and you were not insured to drive. No offences are libelled in relation to these factors but they are aggravating factors. You initially denied that you were the driver although you very quickly owed up thereafter to being the driver. Your initial denial is an aggravating factor to be taken into account.

I was provided, on the last occasion with a copy of the English sentencing guidelines for section 2B offences. The guidelines do not relate to youths under 18 years of age. However, the guidelines have been of some assistance to me in identifying areas of relevance. I have also considered the subsequent English guideline in relation to the sentencing of youths.

I was provided with an agreed narrative of facts. Put briefly, you, along with three close friends spent social time together then set out on the fateful journey. At some point you took over driving the car. You drove it on a straight, single track road reaching a speed of between 50 and 54 miles per hour before impact with a wall. That speed did not exceed the road speed limit, which was 60 miles per hour. The precise road conditions at the time of the collision are not clear to me. What is known is that by the time the emergency services reached the scene, some twenty minutes later, the road was beginning to frost over.

You were injured in the collision. Following the collision, you were concussed and disorientated. You contacted the emergency services to get assistance. It is clear from the recording of that phone call that you did everything you possibly could to render assistance to your friends, who were injured in the collision. You followed the instructions given by the call assistant, only stopping when told so to do by emergency workers who had arrived on the accident scene. Tragically, your efforts were in vain and all three of your friends died.

This is a very serious matter. I cannot begin to measure the loss of a life and make no attempt so to do. However, it is important for the public to understand that this is not a case involving the much more serious offence of causing death by dangerous driving. This offence relates to an accident caused by lack of care and attention, but one with fatal consequences for not one, but three young people. That is by far the most acute aggravator.

I have read the Victim Impact Statements provided to me. They speak eloquently of devastation to the families involved and the suffering already endured. It is to the credit of those providing statements that they refrain from retribution but rather focus on the devastating consequences for them. I have read the background reports that have been prepared, including a joint report by Dr Tara Pennington-Twist (Clinical Psychologist) and Dr Iain McClure (Consultant Child and Adolescent Psychiatrist).

It would not be possible to overstate the consequences of your choice of actions. Parents and extended family members of the three victims, are having to cope with the pain and distress of their loss. The devastation to the family members and the wider Dunbar community is palpable in this crowded courthouse. I am conscious from the reports that you are acutely aware of the consequences of your actions. You are reported as demonstrating genuine remorse. You are reported as being aware that there is nothing you can ever do to put things right. I am informed that you are under medication and have had suicidal thoughts. You have PTSD symptoms. You have lost a considerable amount of weight. As has been drawn to my attention, the joint psychological and psychiatric report identifies four areas of trauma that you are said to be experiencing, namely: the trauma of the accident itself, both in terms of the crash and in terms of the trauma relating to the accident scene and your failed attempts to resuscitate your friends and the realisation they had died; the trauma relating to your sense of being responsible for having killed three people (further intensified by their being your friends); the trauma of your own grief at the loss of your friends; and the trauma relating to the community response following the accident. You are aware that the guilt will never leave you.

No sentence I could pass will give comfort to those families in mourning for their children and siblings. I take into account all the relevant factors. A custodial sentence would clearly be appropriate for this offence. Were I to impose such a sentence, from the decisions I have been referred to and the guidelines, it might fall to be measured in months.

Turning to the social enquiry report, I am informed that there is a very low risk of you offending in the future. I am told there is no ongoing public protection issue. You pled guilty at an early opportunity resulting in no witnesses needing to give evidence in this harrowing matter.

In all the circumstances I have decided it is appropriate for me to impose the direct alternative to a custodial sentence. There will be two parts to the Community Payback Order I propose to impose. Firstly you will be subject to supervision for a period of two years and will require to comply with the plan set out in the social enquiry report. Secondly, you will be required to carry out unpaid work in the community. It is a matter of our law that I should recognise the early plea by way of a reduction in your sentence. A plea put forward at so early an opportunity entitles you to a reduction of about one third. The High Court of Justiciary has held that, where a significant custodial sentence is in contemplation, imposition of the maximum hours of unpaid work in the community, namely 300 hours, can reflect the reduction in sentence being applied where otherwise a custodial sentence would be passed. I have decided that would be appropriate in this case. I am going to require you to carry out 300 hours of work in the community within 12 months of today’s date.

I am furthermore going to disqualify you from holding or obtaining a driving licence for a period of four years.

No one could fail to be moved by the tragic loss of these young promising lives in such avoidable circumstances. I extend my personal sympathy to those bereaved. I hope and pray that in time there may be some peace and healing for them and for the wider community.”

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