HMA v Shaun Gatti [2021] HCJAC 7

Mr Gatti, the respondent, had pled guilty to charge 1 which was causing death by dangerous driving in that he drove at excessive speeds within a 30mph limit, and on the wrong side of the road, having consumed alcohol, whereby his vehicle collided with a pedestrian on the roadway, Robyn Fryar, who died as a result. Robyn Fryar was 15 years old at the time.

He further pled guilty to charges 2 and 3 which were failing to stop and failing to provide or report the necessary details following a collision and charge 4 which was an attempt to pervert the course of justice.

Mr Gatti received a sentence of 4 years 6 months imprisonment for charge 1 (reduced from 6 years), concurrent sentences of 3 months for charges 2 and 3 (reduced from 4 months) and a consecutive sentence of 9 months for charge 4 (reduced from 12 months).

The Crown appealed the sentences of charges 1 and 4 as being unduly lenient but too no issue with the level of discount.

The fatal collision occurred around 2am on the 7^th of July 2019. Mr Gatti had attended a 21^st birthday party at the Gleniffer hotel. He left with a friend to a nightclub around 1240am and returned to the hotel later that morning. Mr Gatti and his friend were seen to get into his car and drive into Glenburn Road. Robyn Fryar had been out with friends and was walking with them towards Glenburn Road. Robyn and her friends had ran across the road. The respondent was travelling on the wrong side of the road at an excessive speed and struck Robyn. He got out of the car and saw Robyn on the road before returning to the vehicle and driving off. Robyn later died at hospital. Mr Gatti’s car was found through a media appeal to be hidden under tarpaulin with the registration plates removed, significant damage and small amounts of blood visible. The car had been cleaned since the collision. He advised officers that it was him that they were looking for and he had been driving at the time of the incident. It was estimated that the vehicle had been driving around 42-47mph in a 30mph zone.

The sentencing judge had been advised the respondent was a first offender who had panicked, he stated he intended to hand himself in but the police arrived before he could do so and he had only recently passed his driving test. In using the Definitive Guideline entitled “Causing Death by Driving” issued in July 2008 by the Sentencing Council in England and Wales, which he used as a useful cross check to the sentence which he selected, he noted that the sentence under the guidelines would be a range of 4-7 years within category 2. A submission attaching some blame to Robyn had been rejected as had a submission that there was an absence of allegation of impairment as he had consumed alcohol.

On appeal, the Crown submitted that the correct category was 1 which carried sentences in the range of 7-14 years and even if it were to be category 2 it should be on the higher end of the range. It was further submitted that the sentences for charges 1 and 4 either together or separately failed to recognise the gravity of the offence. Submissions for the respondent stated that the sentencing judge had not erred in his decision.

The test for whether a disposal is unduly lenient is demonstrated in HMA v Bell 1995:

“It is clear that a person is not to be subjected to the risk of an increase in sentence just because the appeal court considers that it would have passed a more severe sentence than that which was passed at first instance. The sentence must be seen to be unduly lenient. This means that it must fall outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate.” “It is clear that a person is not to be subjected to the risk of an increase in sentence just because the appeal court considers that it would have passed a more severe sentence than that which was passed at first instance. The sentence must be seen to be unduly lenient. This means that it must fall outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate.”

The court hearing the appeal stated that there were two flaws in the submissions of the Crown. The first was that they proceeded as if the English and Welsh Guidelines were applicable in Scotland rather that helpful as a cross check. The second was in applying an overly analytical approach in the use of the Guidelines.

The court in its decision concluded that the sentencing judge  was fully entitled to consider that the circumstances might reasonably reflect those of a level 2 offence, were the Guideline to apply. The court considered that they could not see how the case could reasonably be fitted into category 1. The sentence therefore was upheld.