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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lady Cosgrove
Lord Marnoch
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[2006] HCJAC 25
Appeal No: XC655/05
OPINION OF THE COURT
delivered by THE LORD JUSTICE
GENERAL
in
APPEAL AGAINST SENTENCE
by
ROBERT WEIR
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant: A. Brown; Balfour &
Manson
Respondent: D. Bain, A.D.; Crown Agent
28
February 2006
The circumstances
[1] On
19 July 2005 at a preliminary hearing in the High Court at Glasgow the
appellant tendered a plea of guilty to charge (1) on the indictment against
him, being a charge that on 21 September 2004, on various public roads he drove
a motor vehicle dangerously, contrary to section 2 (as amended) of the Road
Traffic Act 1988. The particulars of the
charge were as follows:
"(a) on the M74 at Larkhall having brought said
vehicle to a halt as required by uniformed police officers in a marked police
vehicle, reverse said vehicle driven by you on the hard shoulder, drive off
again on the northbound M74 at Larkhall and did drive at speeds exceeding 140
mph in a 70 mph speed limit, overtaking a motor vehicle while driving on the
central reservation, collide with said vehicle,
(b) drive on the exit off ramp at the A723
Motherwell Road, Hamilton at speeds in excess of 60 mph in a 30 mph speed
limit, drive across a 3 lane carriageway, mount the grassed central reservation
and drive around vehicles then stationary at a red traffic light at the A723
Hamilton Roundabout,
(c) in Blackswell Lane, Hamilton, weave in
and out of vehicles, collide with a raised kerb and cause said vehicle to face
in the wrong direction, reverse over said raised kerb, drive into the face of
oncoming vehicles there, and
(d) on the A723 Hamilton Roundabout at
Motherwell Road, Hamilton, drive into the face of oncoming vehicles there,
drive on the exit off ramp at the M74 at Hamilton, drive northbound on the hard
shoulder of the southbound M74 at Hamilton and Bothwell, drive down the on ramp
at the M74 Raith Interchange at Bothwell, cause your vehicle to leave the
roadway there, collide with trees and bushes there and overturn said vehicle,
whereby said vehicle was damaged and you were injured ... ".
[2] The
vehicle being driven by the appellant at the relevant time was a BMW. The overtaking on the M74 occurred when that
vehicle, being pursued by a police car, came upon a heavy lorry in the nearside
lane as it was being overtaken by a motor car; the motorway at that point comprised
two lanes in each direction. The BMW
then braked, mounted the central reservation and accelerated again, overtaking
the car while the BMW was partly on the central reservation and, as it did so, striking that car
on its off-side. It then continued to
accelerate; the
pursuing police car was travelling at a speed of 142 mph, the BMW faster
than that.
[3] The
BMW, having left the M74 and joined the A723, was being driven by the appellant
at a speed in excess of 60 mph. The
appellant then came upon a set of traffic lights with stationary vehicles in
all three lanes. He was still being
pursued by the police car with its lights and siren activated. The appellant avoided the stationary traffic
by mounting the central reservation and driving round these vehicles, through a
red traffic light, and then entering Blackswell
Lane.
He then accelerated again, weaving in and out of vehicles, and turned
round a left hand bend. As the pursuing
police car rounded that bend, police officers saw the BMW facing in the direction
from which it had come. The police car
stopped in front of the BMW. The
appellant's passenger was observed leaving the BMW and running off. The appellant, avoiding the police vehicle,
then drove off up the A723 and disappeared from sight.
[4] Police
officers resumed their pursuit of the BMW, which entered the M74 exit ramp
travelling in the wrong direction into the face of oncoming traffic which was
leaving the motorway. The appellant then
drove on the motorway along the wrong carriageway - that is to say he drove in
a northerly direction on the hard shoulder of the southbound carriageway,
against the flow of traffic, until he reached the next junction, when he left
the motorway by exiting on the entrance ramp.
At the entrance ramp at this junction the appellant lost control of the
BMW which crashed into trees and bushes and overturned.
The sentencing judge's approach
[5] The
sentencing judge, unsurprisingly, took the view that it was one of the most
serious cases of dangerous driving that he had come upon. In his report to this court he observed:
"To drive
at speeds in excess of 140 mph, to overtake (and collide with) a car while
partially on the central reservation, to drive through a red light and overtake
stationary traffic again while on a central reservation, and then to drive
along a motorway in the wrong direction I regard as falling at the most serious
end of the scale of dangerous driving.
It was remarkable that no one was injured or killed as a result".
[6] At
the preliminary diet the Advocate depute had tendered
a schedule of previous convictions in relation to the appellant. That disclosed that in December 2003 he had
been convicted of a contravention of section 2 of the Road Traffic Act 1988 in
respect of which he had been fined £250 and disqualified from driving for one
year. He was thus so disqualified at the
time of the instant offence.
[7] The
maximum custodial penalty applicable to a contravention of section 2 was, and
remains, imprisonment for two years. At
an adjourned diet on 23 August
2005 the judge sentenced the appellant to imprisonment for two
years from that date, disqualified him from driving for five years and ordered
that he should resit the extended driving test.
In respect of another indictment libelling contraventions of sections
103 and 143 of the Road Traffic Act 1988, the judge on the same day
disqualified the appellant from driving for one year in respect of the first of
these offences and admonished him on the second. The sentencing judge took the view that in
light of the quality of the appellant's driving and in light of the fact that
he had been convicted of dangerous driving just over eight months before this
incident, " ... it was necessary to impose" [in respect of the contravention of
section 2]
"the maximum sentence available for this offence. I took this view partly because of the
seriousness of the offence, but partly also because I considered that this was
necessary in order to protect the public from the appellant, who had shown that
he would not be deterred merely by disqualification and a non-custodial
penalty. I considered that only the
maximum custodial sentence would provide adequate protection for the public
from the risk which the appellant posed.
(It is my understanding that for the purposes of discounting in respect
of a plea of guilty, no allowance should be made for any element in a custodial
sentence which is for the protection of the public - see Du Plooy [2003 S.C.C.R. 640] at para. 19 and McGowan v H.M. Advocate
and O'Donnell v H.M. Advocate [now reported at 2005 S.C.C.R. 497] at para. 16)".
[8] The
appeal was first called before two judges who, in terms of section 103(3) of
the Criminal Procedure (Scotland) Act 1995,
considered it appropriate that it be heard and determined in accordance with
section 103(2).
The submissions
[9] Mr.
Brown, in presenting the appeal, did not dispute, as had not been disputed
before the sentencing judge, that having regard to the seriousness of the
offence, as aggravated by the appellant's previous conviction, the "starting
point" for the custodial sentence was the maximum of two years imprisonment. He submitted that the sentencing judge had
erred in not allowing to any extent a discount from that maximum term. It was accepted that the court had made it
clear that whatever allowance, if any, should be made in respect of a plea of
guilty was a matter for the discretion of the sentencer (Du Plooy, para. [7]); the terms of section 196 (as amended)
of the 1995 Act also suggested that it was not inevitable that there should be
a discount in every case in which a plea of guilty was tendered. But, in circumstances where
a discount would otherwise be appropriate, as where deterrence or punishment of
the offender was an element (Rennie v
Frame 2005 S.C.C.R. 608 at para.
[10]), to the extent of such a factor there should be a discount. Reference was made to Du Plooy at paras. [18]-[19]. The position was otherwise in relation to the
extension period of an extended sentence (McGowan
v H.M. Advocate; O'Donnell
v H.M. Advocate) and a period of
disqualification, in so far as that was for the protection of the public (Rennie v Frame). The sentencing judge
had indicated that, in relation to pleas of guilty tendered at a preliminary
diet, his ordinary practice was to allow a discount of 25%. It was not suggested that in the
circumstances of this case, where protection of the public was a significant
factor, the discount should have been to that extent. But, as the seriousness of the offence was,
and was appropriately, a factor taken into account by the sentencing judge in
fixing the custodial term, he should have allowed a discount in respect of that
element.
[10] The Advocate depute, invited by the court to make any
observations on the general principles involved, stated that the Crown had been
concerned that in the written grounds of appeal it had been suggested that the
giving of a discount was mandatory. She
emphasised various passages in Du Plooy,
including para. [26], which indicated that there might be no discount at
all. The terms of the statute (in
particular section 196(1A)), clearly indicated that there would be
circumstances in which the sentencing judge, having taken into account the
matters referred to in section 196(1)(a) and (b), would nonetheless impose a
sentence which was not different from that which he otherwise would have
imposed. The matter was for the
discretion of the sentencing judge, taking all relevant considerations into
account.
Discussion
[11] In Du Plooy v H.M. Advocate the court discussed at
paras. [8] and following the rationale of making an
allowance in respect of a plea of guilty.
Having considered certain justifications for such an allowance which had
been expressed in a number of other jurisdictions, some at least of which the court
appears to have regarded as relevant to this jurisdiction, it recognised that
section 196 (then in its unamended form) implied that, in determining the
appropriate punishment of the accused, consideration was to be given to the
"utilitarian value" of a plea of guilty.
The relevance of the benefits to the administration of justice from such
a plea (which benefits had been adverted to in passages from judgments in the
other jurisdictions) was demonstrated by the fact that the court was, in terms
of the statute, to consider the stage at which the accused indicated his or her
intention to plead guilty (para. [14]). In paras. [18] to
[21] inclusive the court addressed a number of types of circumstances which
might be unfavourable to the allowance of a discount in respect of a guilty
plea. The type which appears to be
closest to the present is discussed in para. [19]. The Lord Justice General, delivering
the Opinion of the Court, there said:
"Earlier in
this opinion we indicated that the 'utilitarian value' of the plea of guilty
and the implications of the accused's acceptance of
his guilt should be taken into consideration in determining the appropriate
punishment of the accused. Thus they
should be considered along with matters relevant to punishment, such as the
seriousness of the offence and the accused's previous convictions. However, the sentence may also contain an
element which is designed to protect the public against the accused's
re-offending. In our view the
'utilitarian value' of the plea of guilty and the accused's acceptance of his
guilt should not be allowed to detract from the need to protect the public."
Having considered the position in
relation to extended sentences, the Lord Justice General continued:
"Likewise,
where the sentencer imposes a determinate sentence which contains an element
which is designed to protect the public from the accused's re-offending, the
sentence should not, to that extent, be subject to any allowance in respect of
the plea of guilty."
[12] These passages suggest that the sentencing court should, in
that type of situation, take into account potentially three elements - (1) the
"utilitarian value" of the guilty plea (together with the implications of the
accused's acceptance of his guilt), (2) the seriousness of the offence (together
with any previous convictions) and (3), if relevant, any element in the
sentence designed to protect the public.
Where element (3) is applicable, the sentence should not, to the
extent of that element (emphasis added), be subject to any allowance in
respect of the guilty plea.
[13] Where an offender has pled guilty to an offence, the court is,
in terms of section 196(1), obliged to take into account the matters mentioned
in paras. (a) and (b) of that subsection. It is also required to take into account the
seriousness of the offence (together with any previous convictions) and, if
appropriate, the need to protect the public.
Where there is a maximum penalty prescribed by law the sentence
ultimately arrived at will require not only to be limited by that maximum -
however inadequate that maximum may to the sentencer appear - but, within that
constraint, also to have taken into account all relevant considerations. Where the seriousness of the offence itself
(with any consideration aggravating that seriousness) is a factor, it will, at
least ordinarily, be necessary to consider whether an allowance for the plea
should be made to the extent of that factor, even though there is also a factor
of protection of the public in respect of which no allowance is appropriate. On the other hand there may be cases where
protection of the public is so overwhelming a consideration that in practical
terms it excludes all other factors.
[14] In the present case the sentencing judge recognised that the seriousness
of the offence was in itself a material consideration. He reached the view that the maximum sentence
was necessary "partly" because of that seriousness" and "partly also" because
of what he considered to be necessary in order to protect the public from the
appellant. While he goes on to state
that he considered that only the maximum custodial sentence would provide
adequate protection for the public from the risk which the appellant posed, it
is difficult to accept that this was a sentence in which there was, or should
have been, no significant retributive or deterrent element. The circumstances of the offence itself
clearly called for the appellant to be punished and, within the constraints of
the maximum penalty, to be punished severely for his conduct. If there was, or should have been, a punitive
element, even if in relative terms that element was small in comparison with
the need to protect the public by confinement of the appellant, it was one
which qualified for consideration for an allowance in respect of the plea of
guilty. The sentencing judge, however,
makes no reference to this aspect. In
that regard he fell, in our view, into error.
Disposal
[15] We recognise that in this case a major element of the sentence
imposed can properly be attributed to the need to protect the public. Accordingly, there can be no question of the
application of a discount of 25%. In the
whole circumstances we shall apply a discount of one third of that
percentage. Accordingly the appeal is
allowed to the extent of quashing the sentence of two years imprisonment and
substituting for it a sentence of 22 months, being 2 months less than the
custodial sentence would otherwise have been.
The other elements in the sentence remain standing.
