Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Mackay of Drumadoon Lord Philip	[2012] HCJAC 100 Appeal Nos: XJ570/11; XJ131/12 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeals against sentence by DEBBIE HARKIN Appellant; against PROCURATOR FISCAL, FALKIRK Respondent: and SELINA SIN TUNG FUNG Appellant; against PROCURATOR FISCAL, ABERDEEN Respondent: _______

Appellant Harkin: A Ogg, C Tait, solicitor advocates; Capital Defence Lawyers (for MTM Defence Lawyers, Falkirk)

Appellant Sin: Borthwick; Paterson Bell (for Burn & McGregor, Aberdeen)

Respondents: Di Rollo AD; the Crown Agent

20 June 2012

[1] These two appeals concern whether, when applying a discount for an early plea in terms of section 196 of the Criminal Procedure (Scotland) Act 1995, the discount should be applied to the element of the sentence taken as a starting point in the sentencing process ("the headline sentence" as it was phrased in Gemmell (infra) LJ‑C (Gill) at para [28]) or whether any minimum penalty fixed by the legislature should be deducted from that element before the application of any discount. It is said that this is not a matter which was argued specifically in Gemmell v HM Advocate 2012 SCCR 177 and it has been referred to this court, sitting with a quorum of three, in order to clarify any ambiguity.

[2] The two appeals concern motoring offences. In the first, the appellant pled guilty to a contravention of section 5(1)(a) of the Road Traffic Act 1988; having 78 microgrammes of alcohol in 100 millilitres of breath. She was fined £400, which had been discounted from £600 for an early plea. It was thus clear that the sheriff considered that a one third discount was appropriate. This was the appellant's second recent conviction for a breathalyser offence and she was therefore subject to a three year minimum disqualification period (Road Traffic Offenders Act 1988, s 34). The sheriff imposed a four year disqualification period, subject to a one year reduction in the event that the appellant complete a rehabilitation course (RTOA 1988, s 34A). He did not discount the period of disqualification because he regarded that period as one for the protection of the public rather than a penalty, and hence not a sentence within the meaning of section 196 of the 1995 Act. That approach was disapproved in Gemmell, (eg LJ‑C (Gill) at paras, [69]-[71]).

[3] The second appeal concerns penalty points. The appellant pled guilty to three offences: driving without insurance (contrary to section 143 of the Road Traffic Act 1988); driving without a licence (section 87 RTA 1988); and attempting to pervert the course of justice by giving a false name to the police. She was fined, respectively, £450, £120 and £350; these sums being discounted from £600, £180 and £420 (a range of about one quarter to one third). The court imposed 8 penalty points for the insurance conviction. The appellant already had 6 points on her licence as a result of two speeding offences. The "totting up" process therefore applied and the Justice of the Peace was required to impose "not less than" six months disqualification (RTOA 1988 s 35). The Justice imposed twelve months disqualification. It was not argued that he had not been entitled to do that, even although the only reason which he gave was the application of the totting up provisions. He did not discount the penalty points or the disqualification imposed. Imposition of the minimum number of points (6) would still have triggered the totting up provisions.

[4] It was not disputed that, following Gemmell, discounts should be applied to penalty points and disqualifications imposed, provided that the eventual number or period selected does not fall below any minimum prescribed by statute. However, the concern about applying discounts to headline sentences, where a minimum level is prescribed by statute, is that a person, whom the court considers should be given more than the minimum, may end up with the same sentence as a person deserving only of the minimum. This, it is said, is anomalous.

[5] The court is satisfied that the effect of the decision in Gemmell is that discounts require to be applied to the headline sentence without deducting from it any statutory minimum penalty. That is clear from the dictum of the Lord Justice‑Clerk (at para [55]) and it is consistent with his approach of avoiding "complex calculations" (at para [59]). It is also consistent with the actual decisions in Gemmell in the road traffic appeals as explained in the Lord Justice‑Clerk's Opinion. In particular, although in the appeal of Mr Ross (LJ‑C at paras [96] to [98]) it may not be entirely clear that the discount (2 points) was assessed using the headline sentence (7 points), as distinct from the headline less the minimum (7 minus 3 points), it is apparent that this is what was being done from the appellant Hart's case (paras [99] - [100]). There, it was considered that a discount of about 25% was appropriate and 6 penalty points was reduced to 4. Had the court considered it appropriate to deduct the minimum (3) from the headline figure (6), only 1 point would have been deducted and not the selected 2 points. Equally, in the Crown appeal against the discount from 24 months to 15 months in Ms Ogilvie's case, had the court considered that the minimum disqualification period (12 months) ought to have been stripped out of the headline sentence, it could hardly have refused the appeal since, in that event, a maximum discount of one third would still have produced a minimum sentence of around 20 months as distinct from the 15 months imposed.

[6] The majority of the judges in Gemmell agreed with the Lord Justice‑Clerk's reasoning in general (Lord Eassie at para [143], Lord Wheatley at paras [166], [167]). However, even the minority did not dissent in respect of the three road traffic appeals. Lord Osborne (para [131]) did not consider that the approach to discounts on periods of disqualification and numbers of penalty points should differ from that applied to sentences for imprisonment. In relation to the latter, there is specific statutory provision (eg 1995 Act s 196(2)) which allows the court to go below the statutory minimum in certain situations where a plea has been tendered. Such a provision would not be required if discounting only applied to that part of a sentence of imprisonment above the statutory minimum. Returning to Gemmell, Lady Paton (para [162]) makes it clear that, in the appellant Ross's case, the discount was applied to the headline points selected. The same is said in relation to the appellant Hart (para [163]).

[7] For these reasons, applying the discount of one third in the case of the first appellant not only to the fine but to the headline period of disqualification, the period would have been 32 months but for the statutory minimum. The appropriate sentence is accordingly disqualification for the minimum period of 3 years. The court will adjust the period deductible in respect of the rehabilitation course to 6 months. In respect of the second appellant, the focus was on the period of disqualification rather than the penalty points (which might have been discounted also, but not below the level requiring totting up). The court will apply a one quarter discount, which is consistent with that of the fine on the insurance charge, to reduce the disqualification period to nine months. It was submitted that the totality of the fines was excessive, where the appellant was a student earning only about £90 per week in her parents' restaurant. However, having regard to the nature of the offences and the appellant's previous conviction in May 2011 for driving without insurance, the court cannot agree and the appeal, to that extent, must fail.