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Cite as: [2005] ScotHC HCJAC_83, [2005] HCJAC 83

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Rennie v. Procurator Fiscal [2005] ScotHC HCJAC_83 (20 July 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Penrose

Lord Clarke

Lord Kirkwood

[2005HCJAC83]

Appeal No: XJ1833/04

OPINION OF THE COURT

delivered by LORD PENROSE

APPEAL AGAINST SENTENCE

GRAHAM RENNIE

Appellant;

against

PROCURATOR FISCAL, Aberdeen

Respondent:

_______

Appellant: Jackson, Q.C., Mitchell; McClure Collins

Respondent: Grahame, A.D.; Crown Agent

20 July 2005

[1] The appellant was fined £300 and disqualified from driving for a period of two years after pleading guilty to a contravention of section 5 (1) (b) of the Road Traffic Act 1988. He has appealed against the imposition of disqualification for the period selected by the sheriff.

[2] The circumstances surrounding the offence are not controversial. The appellant abandoned a ground of appeal critical of the sheriff's assessment of the risk that he would have driven the vehicle while over the relevant limit. In the event, the factual position was clear. On the day in question the appellant had consumed alcohol at home. He then drove to the locus, a road near a local golf driving range, and parked. He was deeply depressed at the time, and contemplated suicide. The police found him there, sitting in the car with the ignition switched on and the dashboard illuminated. The engine was warm. It was obvious to the officers that the appellant had been drinking, and the usual tests confirmed their suspicions. The appellant's breath alcohol reading was 69mg in 100 ml of breath, exceeding the prescribed limit of 35 by a factor just short of 2.

[3] The appellant had had a long and distressing history of health problems. The medical reports presented to the sheriff were supplemented by a further report made available to the court. In the autumn of 2002 the appellant exhibited fairly classic symptoms of depressive illness. He was prescribed medication that appeared to have initial success. But he was found to have developed a non-malignant pituitary tumour, and eventually surgery was required. There were continuing physical problems, however, involving impotence, high blood pressure, muscular weakness and pains, and he had memory problems. Depression continued and he required medication for that and other conditions.

[4] The appellant had to give up his current work in January 2003, when he sold his hotel. The sheriff states in his report that he felt considerable sympathy for the appellant. He acknowledged that as matters stood before him the appellant hoped to put his life back together as soon as possible, and to return to work. He had previously been employed as a surveyor. However, he reports:

"I considered that I could not look at the matter in a one-sided way and I had to take account of other matters, including the public interest, in determining the appropriate penalty for the offence. I did, of course, give the most careful consideration to the appellant's personal circumstances and the circumstances of the offence in selecting the sentence which I did."

[5] It is clear from the sheriff's report that he did approach the issue of sentence in that light. He had regard to the social inquiry report, which assessed the appellant as presenting a low risk of re-offending according to the Scottish Executive Risk Assessment Framework. But he placed greater weight on the appellant's previous conviction for a drink driving offence and disqualification for two years. He was clearly entitled to do so. In our view the sheriff cannot be criticised for selecting disqualification as an element of the sentence imposed. The period of two years was within his discretion, having regard in particular to the appellant's previous conviction and the risks of re-offending associated with the persistence of his medical problems at the time. The up-to-date medical report available to the court notes improvements in the appellant's medical condition. But there has been no change such as to undermine the sheriff's assessment of the seriousness of the appellant's offence at the time, or the need for public protection, having regard in particular to the appellant's history.

[6] The second main ground on which the appeal was presented was that, in imposing the period of two years, the sheriff failed to allow a discount for the beneficial effects of the appellant's plea of guilty. It was said that the appellant had tendered the plea at the earliest possible opportunity, since no plea could have been tendered without obtaining the medical advice necessary properly to present the appellant's position in mitigation. It is not central to the disposal of this aspect of the appeal to express a concluded view on the relevance or materiality of that factor. But it is not immediately obvious that the need for medical advice to support mitigation could not have been accommodated in summary criminal proceedings after guilt had been admitted. The appellant's criminal responsibility for his actions was not in issue.

[7] In Andrew McGiffen v Procurator Fiscal 7 June 2005, the view was expressed that it was a matter for the discretion of the sentencing court whether any discount should be allowed from a period of disqualification in recognition of a plea of guilty, having regard to the terms of section 196 of the Criminal Procedure (Scotland) Act 1995 and the observations in Du Plooy v Her Majesty's Advocate 2003 SCCR 640. In that case the sheriff's report appeared to indicate that he had considered himself obliged to allow some discount. In the present case it was accepted that the issue was properly one of discretion. But it was argued that the sheriff's approach was at the opposite end of the spectrum of possibilities: he had considered that it was not open to him to discount the period of disqualification as a matter of discretion, and had therefore misdirected himself.

[8] It is appropriate to make some further general comments on the approach to section 196 in the circumstances. It is inevitable that protection of the public will be a material factor in selecting a period of disqualification. But other factors may legitimately be taken into account, and in particular punishment and deterrence: Leslie v McNaughton 1991 SCCR 32 at page 37. In Derrick Barrie v Procurator Fiscal Paisley 25 November 2004, the court allowed a discount, following the approach of the sheriff, which does not appear to have been controversial in that case. The opinion does not disclose the basis on which a discount was allowed, or the reasons for the substantial discount allowed. But it may be taken as an illustration that a discount may not be inappropriate. If the sentencing court approaches the selection of a period of disqualification in the light of a perceived need to punish the offender, or to deter offending, some part of the period selected would be within the scope of the observations in Du Plooy, and, to that extent, section 196 would require to be considered, and some discount might be allowed. Any such discount would require a careful exercise of discretion that avoided reduction of the period below what was required for the protection of the public. This degree of discrimination may not have been common in the past. But it may be inevitable if a proper and just approach is to be assured that gives recognition to a plea of guilty so far as it can, without undermining a disposal selected for public protection.

[9] In the present case, the critical issue is whether the sheriff misdirected himself as to the scope of his discretion in selecting the period of disqualification. In our opinion, it is clear that he did not. It is necessary to bear in mind the full terms of the penalty imposed. The sheriff imposed a fine, starting from a reference level of £400, from which he allowed a discount of £100 to reflect the beneficial effects of the appellant's plea of guilty. He imposed two years' disqualification, which he arrived at without discount. He explains his approach in his report. Looking at the totality of the exercise, he explains that, despite sympathy for the appellant, he could not look at the matter in the one-sided way he had been invited to adopt, and that he had to take account of other matters, including the public interest. That was undoubtedly a correct statement of the general approach to sentencing in the circumstances. In relation to the period of disqualification, he states:

"I should also explain that in relation to the length of the disqualification I did not consider it appropriate to allow any discount in respect of the appellant's plea of guilty. I imposed the period of disqualification which I did in the belief that that was what was necessary in the interests of the safety of the public. In that situation, where part of a sentence is selected as being necessary for the protection of the public I do not consider that it is appropriate to allow discount upon it."

[10] In cases in which, as here on the sheriff's narrative, the disqualification component of the total sentencing package is fixed as necessary in the interests of the safety of the public, and there is no element of deterrence or punishment of the offender in the selection of the period of disqualification, the sentencing court may properly take the view that it would be inconsistent with the purpose of the disqualification to limit its length in terms of section 196. As this case demonstrates, the court has ample discretion to recognise the benefit of the plea of guilty in other aspects of the total sentence.

[11] It is clear that the sheriff did not mistake the nature of the exercise. Having selected the period of two years as necessary in the interests of public safety, he was entitled to take the view that it was not appropriate to allow a discount upon it.

[12] The appeal is refused.