SENTENCING STATEMENTS

 

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HMA v John Bain Johnstone

 

Jul 20, 2020

At the High Court in Edinburgh today Lord Fairley sentenced John Bain Johnstone to 32 months imprisonment and disqualified the accused from driving for 5 years and 4 months after he pled guilty to causing the death of Hanno Garbe by dangerous driving.

“John Bain Johnstone, you pled guilty at a diet under section 76 of the Criminal Procedure (Scotland) Act, 1995 to causing the death of Hanno Garbe by your dangerous driving on the afternoon of 4 March 2019.

According to the agreed narrative which was read to me on 24 June, you had been told by qualified optometrists on two occasions – on 11 September 2018 and again on 19 November 2018 – that your eyesight did not meet the required standard for driving. You were made aware that there had been a significant deterioration in your distance vision and that you had cataract in both eyes. You were told in terms by these specialists that you should not drive and that you should notify the DVLA of your condition.

Notwithstanding that very clear advice, as well as your own awareness that you were struggling with your eyesight when playing golf, watching television and driving, you continued to drive a motor car when it was plainly dangerous for you to do so.

During the afternoon of 4 March 2019, you had attended at the Strathspey Body Repair Centre near Aviemore to arrange for work to be carried out to your car. Having left the Strathspey Body Repair Centre, you drove south on the B9152. Mr Garbe was cycling on the same road, also travelling south. He was ahead of you on the road in the southbound lane.

At around 1513 hours, on a straight stretch of the B9152, the front nearside of your car struck Mr Garbe from behind. The force of the impact resulted in substantial damage to the bonnet, windscreen and roof of your vehicle and multiple injuries to Mr Garbe including an un-survivable head injury from which he died at 1125 hours the following day.

Whilst you seem to have been driving within the speed limit, and you may have been affected to some extent by the low sun, police officers who conducted a roadside eye test on you immediately after the collision found that you could only read a registration plate at 4.8 metres rather than the required distance of 20 metres.

Specialist accident investigators concluded that sole responsibility for the collision lay with you, that you simply failed to see Mr Garbe, and that the principal reason for this was your very poor eyesight.

Mr Garbe was 57 when he died. On the information which has been presented to me, his unexpected death has had a devastating effect on his partner of some 40 years.

I have taken into account everything that has been said on your behalf today, as well as the letter from your GP dated 15 July and the contents of the Criminal Justice Social Work Report of the same date. In particular, I have taken account of the fact that you are now 84 years of age, that you have no prior criminal record and that you have shown a degree of remorse. I have considered very carefully the submissions made on your behalf today about the possibility of imposing a non-custodial sentence.

Contra-indicators to custody in this case are your absence of prior criminal record, your age and your state of health. I have considered your health conditions as referred to in the letter from your GP, and note that all of these are presently well controlled. The Social Work Report of 15 July records that you are generally of good physical and mental health and that there are no factors apart from your age and absence of prior record which would preclude a custodial sentence. Having considered all of these matters, I have come to the view, notwithstanding your age and absence of record, that the seriousness of your conduct in driving whilst materially impaired by a known medical condition means that only a custodial sentence is appropriate in this case. In reaching that conclusion I have had regard to the Guidelines issued by the Scottish Sentencing Council on the principles and purposes of sentencing. I have also had regard to the English Definitive Guidance on sentencing for causing death by dangerous driving.   

That you drove whilst your ability to do so was significantly impaired by a known medical condition places this offence within Level 2 of the English Definitive Guidance. The starting point for an offence within Level 2 is a custodial sentence of 5 years and the range is 4 to 7 years. In this case, there are no further applicable aggravating factors in terms of the Guidance. In determining the appropriate sentence I have taken into account to the extent that they are relevant, your remorse, your absence of prior record and your age.

Having regard to all of these factors, and had you been convicted after trial, I would have imposed a sentence of imprisonment of 4 years and a period of disqualification from driving of 6 years. In light of the utilitarian value of your plea of guilty at the earliest opportunity, I shall discount each of those periods by one third. This results in a period of custody of 32 months and a discretionary period of disqualification from driving of four years. I am required to add to that discretionary period of disqualification an extension period of 16 months to reflect the period of time that you will spend in custody. The total period of disqualification from driving is accordingly one of 5 years and 4 months.

In addition, your driving record with the DVLA will be endorsed, and you will be required to sit the extended driving test should you wish to hold a driving licence again. Whether you are fit to do so will be a matter for the DVLA to determine at the appropriate time.”

20 July 2020