HMA v DOUGLAS CALDER

At the High Court in Edinburgh Lord Stewart sentenced Douglas Calder to 18 months imprisonment and a driving ban of four years after he was found guilty of causing William Webber’s death by careless driving on 15 April 2011 in Aberdeenshire.

On sentencing Lord Stewart made the following statement in court:

“Douglas Calder I should tell you at the outset that having given anxious consideration to the alternatives to custody, and notwithstanding the powerful submission on your behalf by Mr Moggach, I have decided that you will be sent to prison.

You were charged with causing the death of William Webber by dangerous driving and you have been convicted by the jury of the lesser offence of causing William Webber’s death by careless driving. Parliament has enacted that a punishment of up to five years imprisonment can be imposed for causing death by careless driving.

The verdict leaves it for me to assess the degree of carelessness involved and the appropriate range of punishment subject to any aggravating and mitigatory factors. I have to infer that you lost control of the car because you were driving much too fast. You were driving a Porsche Carrera 911 S2. The police test drive showed that a car of the same type stayed on the road at 70 mph. The inference I draw from the evidence of the accident investigators is that you were driving at such a speed over and above 70 mph when you crested the rise that your car lifted before touching down first on the offside or right hand rear wheel and then levelling up as it came down on the nearside rear wheel veering on to the wrong side of the road and then onto the verge. It seems to me that this is consistent with the sensation you experienced or thought you experienced. You told the police: “the car dropped down on one side on the right hand side and suddenly it jumped back up.” In evidence you said it felt like a tilt. There was nothing inherently dangerous about the road. There is no evidence which would allow me to conclude that the accident was caused by mere momentary inattention on your part.

I regard this as a serious case of careless driving. In reaching this view I have focussed on the degree of culpability rather than the outcome.

However it is important to recognise in passing sentence if not in calculating the sentence the impact of the event. The impact on William Webber’s family has been devastating. His wife Emma Webber who was expecting their first baby had a miscarriage. She feels that she has lost everything that gave her life meaning. It was planned for William to take over the family farm. His father says that the whole point of his lifetime’s work has gone. His mother is too upset to put her thoughts on paper. His sister Ruth gives eloquent testimony of how this close knit family has been torn apart. There are daily reminders for the family of their dead William.

I have to bear in mind that the jury has decided that your driving has not been proved to have been dangerous. There is no evidence that you were under the influence of drink or drugs. There is no evidence of a prolonged course of bad driving. There is no evidence of aggressive driving, using a mobile phone or similar aggravating factor. The following points mitigate what would otherwise have been a more severe sentence. You were driving because you were doing your best friend a favour. You lost your best friend, you too were injured, you were genuinely distressed at the time, you attempted to resuscitate your friend. You have, I accept suffered and are suffering genuine remorse. You have no previous convictions. You have always worked and you hold down a responsible and well paid job. You are in a stable relationship and have a supportive family. You and your partner will suffer financial loss while you are in prison. There is no indication that you are likely to re-offend. I have had regard to the evidence heard at trial, to the terms of the Criminal Justice Social Work Report, to the favourable references submitted for you and to all the circumstances drawn to my attention by Mr Moggach on your behalf. I have had regard to the sentencing guidelines for England and Wales.

All these factors indicate to me that a sentence of two years imprisonment would be appropriate: but I also have to consider the question of whether I should give a discount. I have been persuaded by the submissions made by Mr Moggach who also ably represented you at the trial that you are entitled to a discount for your early offer to plead to the lesser charge of death by careless driving, namely the charge of which you were eventually convicted. Your plea was offered and was rejected by the Crown on 27 September 2012. With the evidence available the Crown’s attitude was a wholly responsible one. In similar cases where the defence makes clear to the jury that the accused accepts his or her guilt of the lesser charge it may well be appropriate to give the most generous discount. In this case my judgment is that it is appropriate to discount your sentence by 25%.

Stand up please. You will go to prison for a period of 18 months commencing today. I am bound to disqualify you from driving and shall do so for a period of four-and-a-half years and I order in terms of the Road Traffic Offenders Act 1988 s. 36 (1) that the disqualification must continue until you have passed an extended driving test. I must order your driving licence to be endorsed. Had you not tendered the early plea of guilty to the charge of which you have ultimately been convicted I should have sentenced you to a period of two years imprisonment and to a driving ban for six years.”