HMA v Calvin McRobb

At Aberdeen Sheriff Court today, 7 April 2017, Sheriff Graeme Napier sentenced Calvin McRobb to a Community Payback Order together with a Restriction of Liberty Order after the accused pled guilty to causing the death of Benjamin Waterfield by careless driving. He was also disqualified from holding or obtaining a driving licence for a period of three years.

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

“In this case you Calvin McRobb have pled guilty to driving a vehicle without due care and attention and without reasonable consideration for other road users, on 13 March 2016 on the A947 Newmacher to Aberdeen Road, causing the death of your 17-year-old friend Benjamin Waterfield (Ben, as I understand he was known by his family), contrary to section 2B of the Road Traffic Act 1988. 

It is important to recognise that whilst the charge is not one of causing death through dangerous driving, nonetheless you have accepted that you drove at excessive speed for the road conditions and – despite what you have said to the social worker who interviewed you – at a speed in excess of the limit for that road, losing control of that vehicle having entered a marked double bend allowing the vehicle to cross on to the wrong side of the road and collide with an oncoming vehicle causing significant damage to the vehicles, causing significant injuries to yourself, the driver of the other vehicle and a 16-year-old passenger in your vehicle, and also such significant injuries to your friend that he died from those injuries, notwithstanding what were clearly significant efforts of medical staff over the next 34 hours to save his life; thus depriving him at such a young age of the years of the life he and those close to him had to  look forward to.

I have already expressed my condolences to the family of the deceased, but they may be of little comfort to them in the grief they feel and always will. Nothing I do as far as sentence can alter that fact.

As is apparent from the detailed criminal justice social work report, you recognise that you will have to live with the consequences of your driving on that day. But so will Ben’s family, as is clear from the victim impact statements which I was shown when the plea was first tendered. 

In cases such as this Parliament has set out the maximum penalty which I can impose as five years in prison, contrasting with the 14 years available where the charge is one of causing death by dangerous driving.

In assessing the appropriate penalty to impose, no formal guidelines have been issued in Scotland, although the High Court has made it clear that in cases such as this it is appropriate for sheriffs to have regard to the Definitive Guidelines issued for England and Wales.

In that respect your agent is right to remind me of what was said in the case of HM Advocate v Geddes, in which the Appeal Court made it clear that the English guidelines should not be followed slavishly but that the appropriate sentence should be determined in accordance with the modern Scottish approach to sentencing. That is of course particularly relevant in the case of a young offender such as here.

The English case of Rice, which I cannot find referred to in Geddes or any other Scottish case I am aware of, is interesting if only from the fact that the approach there perhaps shows why the English guidelines cannot be slavishly followed and any sentence has to be seen in the context of the local jurisdiction.

Although Parliament has provided that proceedings for this offence may be taken on Indictment where a sentence of up to five years imprisonment may be appropriate, equally a fine may be imposed even on indictment and the charge can be dealt with on summary complaint where the penalties are more limited. Accordingly, it is far from inevitable that a custodial sentence must follow conviction on such a charge.

Even in cases where custody may be an option I am bound by Scottish legislation in all cases, but in terms of section 207 of the Criminal Procedure (Scotland) Act 1995, Parliament has made it clear that where an offender is under 21 as you are, before I can impose a sentence of detention I must be satisfied that there is no other method of dealing with that person. You clearly fall into that category.

In a 2010 case of  McKay a sheriff’s sentence, supported by the Appeal Court, was one of 240 hours’ community service for an accused who drove at excessive speed (in fact in excess of the speed limit) in the rain and collided with a cyclist.

The Appeal Court has said ‘These unfortunate cases… are inevitably very fact specific’,  but the approach I propose to take, which is consistent with that set out in the of the English sentencing guidelines, is to look assess the seriousness of the offending or how far below the standard of a normally competent driver that falls, then apply any aggravating or mitigating factors  and set the suggested range of sentences in the context of the requirements of the Criminal Procedure (Scotland) Act 1995.

As far as seriousness is concerned there are three categories or levels: the most serious being driving falling not far short of dangerous driving; the lowest level is those involving momentary inattention only with no aggravating factors. The middle level is ‘other cases of careless or inconsiderate driving’.

In the circumstances of this case driving in excess of the speed limit not adhering to warning signs  indicates to me that this falls within the highest level, if not at the top end of that, and the frantic phone calls for help of your passenger are also eloquent of that it seems to me.

Thereafter, I consider whether there are additional aggravating or mitigating factors. The only one applying here from the English guidelines is that there was more than one casualty, although fortunately the others were not also fatal.

There are, however, a number of recognised mitigating factors, namely that you were seriously injured, the victim appears to have been a close friend, you had very limited driving experience having only just passed your test – a factor that clearly played a significant part here.

I am also required to take account of what is described as personal mitigation and in this case I cannot help but note from the social work report that you are assessed as showing genuine remorse; there has been an impact on your mental health to the extent that you have self-harmed; you have isolated yourself; there has been impact on your employment and also on your family.

Taking into account all of these factors and the requirement to be satisfied that there is no alternative but a custodial sentence before imposing detention, I am satisfied that although a custodial sentence would be justified it seems to me that a direct alternative to custody in the form of a community-based sentence involving a combination of punishment and community payback is appropriate. That would be a sentence of a Community Payback Order with a requirement to carry out the maximum 300 hours unpaid work within nine months and a restriction of your liberty for nine months would be appropriate.

Taking into account the stage of the plea, I consider that the appropriate sentence is a Community Payback Order requiring you to carry out 200 hours unpaid work within nine months together with a Restriction of Liberty Order of six months, whereby you are required to stay at your home address between the hours of 8pm and 7am each day for the first three months and on Friday night and Saturday night for the final three months.

Your driving licence will be endorsed and you will be disqualified from holding or obtaining a driving licence for a period of three years, and you will remain so disqualified until you pass the appropriate test of driving competence which in your case is the extended test of competence.”