HMA v Caoimhin Gerard McSherry

At Edinburgh Sheriff Court, Sheriff Norman McFadyen sentenced Caoimhin Gerard McSherry to 32 months imprisonment after the accused pled guilty to causing serious injury by dangerous driving.

14 July 2016

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

"You have pleaded guilty to a shocking sequence of deplorable driving. Despite the fact you had been drinking since the mid-afternoon and the pleas of your friends not to drive, you got into your car at about 9.30pm and drove. You made it clear you were going to drive regardless of their advice and they decided it was better that they were with you. That would have been a significant offence in itself, but as you were driving through the Grassmarket, in Edinburgh, which was busy as it always is at that time of night, despite one of your friends calling out a warning, you failed to apply the brakes in time and struck a man who was crossing the road near if not upon the zebra crossing, causing him to roll onto the bonnet and hit and crack the windscreen, before rolling back onto the road. You did not stop or attempt to find out what had happened to your victim, but proceeded to drive over him. You did not stop even then, but drove off. You did not report the accident, but drove to Corstorphine Road for a takeaway meal, at which point your friends left the car and you drove off again, eventually getting to the hotel in which you were all staying at Ratho Station, outside Edinburgh and went to bed. Almost unbelievably, in the course of the small hours you got out of bed and, while still over the alcohol limit for driving, drove back into the centre of town, where you were stopped by the police. Your breath alcohol level when tested at  6 am – over eight hours after mowing down and driving over your victim – was still 29 microgrammes of alcohol in 100 millilitres of breath and thus over the limit of 22 microgrammes. You have properly pleaded guilty to the offences of (1) causing serious injury by dangerous driving, while under the influence of alcohol, (2 )failing to stop, (3) failing to report an accident and (4) the later and separate offence of driving with excess alcohol in your body. Your victim’s injuries were clearly very serious and there were concerns as to whether he would survive. Not surprisingly his condition was initially assessed as critical and he was placed on life support. He sustained a collapsed lung, severe liver damage, deep grazing and marking resembling tyre tread marks extending from above his right shoulder to his left hip. He suffered bruising, fractured ribs, a sternal fracture and fractured left pelvic bone and right clavicle. He spent three weeks in hospital and has made a good recovery physically with limited deficit in relation to arm movement. Not surprisingly the psychological effects, which were described to me, have been much more profound. It is his good fortune and yours that he did survive, for if he had died you would have been facing a charge carrying a maximum sentence of 14 years imprisonment, if, indeed you had been dealt with for a statutory offence at all.

Until 2012 the maximum sentence for dangerous driving which did not result in death was 2 years imprisonment, but there now exists the specific statutory offence of causing serious injury by dangerous driving and the maximum penalty for that offence is 5 years. I require to consider the appropriate sentence in relation to each charge, but in particular for the main charge. I am not aware of any guidance by the High Court in relation to such cases in Scotland, but the Court of Appeal in England and Wales has considered a number of cases and has approved consideration by sentencing courts of the Definitive Guideline issued by the Sentencing Guidelines Council there in relation to causing death by driving – recognising, of course, that the offence here does not involve death and the maximum sentence available is lower. The High Court here has previously endorsed consideration by sentencers of the Definitive Guideline in fatal road accident cases. I recognise that the Definitive Guideline is only a guideline and must not be read too strictly and that it must be applied to the different sentencing maximum laid down for this offence. I also accept the reasoning of the Court of Appeal in R v Dewdney [2014] EWCA Crim 1722 when it said that “it is not a helpful exercise to indulge in considering the very worst imaginable type of case which would attract a sentence at the maximum. A more realistic approach is to identify a broader band of conduct which will represent the more serious offending within the ambit of the offence”. Having regard to such guidance as is available, it does seem to me that this case is at the more serious end of such offences in terms of seriousness and aggravation, in respect of driving under the influence of alcohol, striking a pedestrian on or very close to a zebra crossing, failing to stop, running over the pedestrian while he was still on the road, failing to stop after that, driving off and failing to report the accident. Indeed, recognising what was said in Dewdney about identifying the broad band of conduct, it would seem to me, under reference to the levels of seriousness in the Definitive Guideline, that the driving in this case was within the most serious category of offence, what is described in the Definitive Guideline as level 1, that is driving which involved a deliberate decision to ignore or a flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others  -  and one which had additional aggravating factors broadly matching those described in the Definitive Guideline, in disregard of warnings and irresponsible behaviour in failing to stop and driving off.  While the running over of the victim might be seen as an aggravating factor in the sense of the Definitive Guideline, I have treated that as part of my assessment of the overall seriousness of the driving. There are no additional mitigating factors within the meaning of the Definitive Guideline. I acknowledge that you now express remorse. Having regard, therefore, to available guidance, it seems to me that this case is very much at the upper end of seriousness and aggravation. Although you have been convicted of non-analogous offences which appear to be consistent with issues with alcohol, you have not previously been sentenced to imprisonment and, before sentencing you to imprisonment, I require to conclude that no other method of dealing with you is appropriate. Given the gravity of the offence I consider that a non-custodial sentence would not be appropriate.   The maximum starting point is five years imprisonment. I consider this to be a case certainly towards the highest level of serious offending within the ambit of the offence and the starting point in relation to charge (1), bearing in mind the maximum sentence available, will be four years imprisonment. That will be reduced to 32 months in respect of your plea of guilty. On charges (2) and (3) – failing to stop and failing to report an accident –  I require to impose concurrent sentences, so the sentence on each of these charges will be four months imprisonment, reduced from six months for your plea of guilty. Charge (4) relates to your extraordinary decision to drive later in the small hours of the morning. Given the relatively low alcohol reading at that late stage in the night I will confine the starting point for sentencing to 3 months imprisonment, reduced to two months in respect of your plea of guilty. That is a short sentence, which is appropriate in light of the maximum available and the reading in the case and the global sentence imposed. While I consider that I would be justified in making that sentence consecutive, I am prepared in all the circumstances to order that it be served concurrently, since I consider that a global sentence of 32 months reflects the justice of the case.You will be disqualified for holding or obtaining a driving licence for five years, which is reduced from seven years in light of your plea of guilty, and until you sit and pass the extended test of competence to drive, in respect of charges (1) and (4) and your licence will be endorsed in respect of charges (2) and (3)."

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