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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
Lord Johnston
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[2007] HCJAC52
Appeal No: XC258/07
OPINION OF THE COURT
delivered by LORD
MACFADYEN
in
NOTE OF APPEAL AGAINST
SENTENCE
by
JAMES COYLE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Mitchell; Balfour + Manson
LLP
Alt: McKenna, A.D.; Crown Agent
14 September
2007
Introduction
[1] The
appellant, James Coyle, pled guilty to one charge of contravening section
103(1)(b) of the Road Traffic Act 1988 by driving a motor vehicle while
disqualified, and one charge of contravening section 143(1) and (2) of the same
Act by driving without insurance. The
plea was tendered by way of the procedure provided for in section 76 of the
Criminal Procedure (Scotland) Act
1995. The sheriff sentenced the
appellant to eleven months imprisonment in respect of the charge of driving
while disqualified, and admonished him in respect of the other charge. In addition, the sheriff disqualified the
appellant from holding or obtaining a driving licence for a period of ten
years. In selecting the period of
imprisonment the sheriff allowed a discount of one month under section 196 of
the Criminal Procedure (Scotland) Act 1995
to reflect the stage at which the appellant intimated his willingness to plead
guilty. The appeal is against the
custodial sentence only.
Circumstances of the offence
[2] On 24 February 2007 the
appellant was stopped by police offices while driving at a speed that appeared
to be in excess of the speed limit.
Checks revealed that he was disqualified from driving. He appeared in court on 26 February and on
the same day tendered a letter under section 76 intimating his willingness to
plead guilty.
The sheriff's reasons for selecting the sentence imposed
[3] In
his report to this court the sheriff noted that the appellant pled guilty at
the earliest possible opportunity. He
noted that the appellant's previous prison sentence had expired on 22 January 2007, less than
five weeks before this offence was committed.
He continued in the following terms:
"[7] In considering sentence, I had in mind
the case [sic] of Smith v H. M. Advocate 2004 SCCR 85 and Thomson
v H. M. Advocate, 27 January
2005, unreported, where Appellants with extensive records of convictions for
road traffic offences, including driving whilst disqualified, successfully
appealed against sentences of 12 months imprisonment (the statutory maximum) on
the basis that no account had been taken of an early plea. In each of these cases, a period of 11 months
was substituted to reflect the appropriate discount.
[8] In electing a period of 11 months, I
had in mind these cases; some degree of discount was appropriate but not the
full one third urged on me. It is clear
from the Appellant's record (nine previous convictions for driving whilst
disqualified) that he drives with impunity and ignores the Court orders. It did not seem to me to be appropriate that
the Appellant could elide the statutory maximum penalty by tendering a plea at
the earliest opportunity. The offence of
driving whilst disqualified is one of the most straightforward to detect and
there are no difficult legal concepts to be absorbed by the Appellant in
understanding whether to accept responsibility or not. In the circumstances, I considered that one
month's reduction sufficiently reflected the early plea."
The appellant's submissions
[4] On
the appellant's behalf, it was accepted that he deserved the statutory maximum
sentence. It was submitted, however,
that the discount allowed under section 196 was inadequate. For a plea tendered under section 76
procedure, a discount of approximately one third should normally be
allowed. In the circumstances of the
present case the sheriff had misdirected himself by taking the appellant's
record of previous conviction for contraventions of section 103 into account
both when selecting the starting point for the sentence and when considering
the extent of the discount to be allowed under section 196. That involved double counting and was unfair.
Discussion
[5] We
have no hesitation in agreeing with the sheriff that, leaving aside the
question raised by section 196, the appellant richly deserved the maximum sentence
permitted by Parliament for his contravention of section 103. He has nine directly analogous previous
convictions. As the sheriff said, he
drives with impunity and ignores the orders of the court.
[6] The
sheriff has accepted that, in the light of Smith
and Thomson, where the court is
minded to impose the maximum sentence, but section 196 applies, the court must
address the discretion conferred on it by section 196. We were not invited to open up that issue,
and we do not do so.
[7] While
we recognise that it has been said that a plea tendered under section 76 at the
earliest opportunity will normally attract a discount towards the upper end of
the range discussed in Du Plooy v H. M. Advocate 2005 JC 1, namely
approximately one third (McKenna v H. M. Advocate 2005 GWD 27-527), the
matter remains one for the discretion of the sentencing judge, and we do not
consider that a decision to allow a discount of less that one third for a plea
by section 76 procedure can be said on that account alone necessarily to be
wrong. Indeed Smith and Thomson illustrate
lower discounts.
[8] The
main thrust of Miss Mitchell's submission for the appellant was that the
sheriff had erred by, in effect, taking account of the appellant's record of
analogous previous convictions twice over, both in selecting the starting point
of the sentence and then again in restricting the discount. While there is at first sight an appearance
of merit in that point, we have come to the conclusion that it is not well
founded. There was no challenge to the
relevance of the appellant's record to the decision to take as the starting
point the maximum sentence permitted by statute. The question is whether, when the sheriff
came to consider what discount to allow under section 196 for the early plea,
the appellant's record of analogous previous convictions was relevant to the
exercise of his discretion under that section, or had to be left wholly out of
account. We are not prepared to hold
that it was irrelevant. If that
proposition were accepted, the result would be that a persistent offender,
however richly he deserved the maximum sentence, both as a punishment and to
protect the public from his lawless driving, would be able to secure the
"normal" discount for a section 76 plea, and thus avoid the maximum sentence by
a considerable margin. In the absence of
any other considerations pointing to a discount of less than one third, that
discount would have to be allowed despite the record. We do not consider that we are driven to that
unattractive result by the relevant statutory provisions. The sheriff was in our view entitled to
restrict the discount as he did, and in doing so to bear in mind the
appellant's record, as well as the fact (to which he refers) that section 103
seldom gives rise to any complexity that would explain a plea being tendered
otherwise than immediately.
Result
[9] We
accordingly reject the submissions made on the appellant's behalf, and refuse
the appeal.
