APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord Johnston

[2007] HCJAC52

Appeal No: XC258/07

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL AGAINST SENTENCE

JAMES COYLE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

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.