APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Drummond Young	[2011] HCJAC 72 XC266/11 OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST SENTENCE by PAUL CLARK WHYTOCK Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: D Taylor, Solicitor Advocate; V Good & Co, Edinburgh

Respondent: D Small, AD; Crown Agent

24 June 2011

[1] The appellant Paul Clark Whytock pled guilty in terms of a section 76 indictment to dangerous driving, driving while disqualified, failing to provide a specimen of blood and driving without insurance. For the last of these charges he was admonished. In respect of the others he was sentenced to 2 years, 12 months and 6 months imprisonment, these sentences to run concurrently with each other, and on charge 1 disqualified from holding and obtaining a driving licence for a period of 20 years and until the extended driving test has been passed. In respect of each of the three offences for which he was imprisoned the maximum sentence was imposed, the sheriff refusing to discount the sentence on two grounds, firstly for the protection of the public from the danger posed by the appellant's driving and secondly because the tendering of a plea of guilty was almost inevitable.

[2] The sheriff in her report amplifies the first of these reasons by explaining that the appellant's appetite for dangerous and irresponsible driving shows no sign of diminishing with age and that he poses a real and substantial risk to the road-using public who deserve and expect that the courts impose sentences which provide them with a measure of protection and respite from that danger. We have considerable sympathy with the view of the sheriff that any sentence falling short of the maximum available risked falling into the category of being inadequate. Her determination therefore to endeavour to impose the maximum possible for the protection of the public is entirely understandable.

[3] On the other hand, it is clear from a number of recent authorities that, even when the evidence against any accused is particularly strong and a realistic person would inevitably address that by pleading guilty, it remains open to all accused to put the Crown to proof by pleading not guilty and going to trial. There is thus in almost every case some utilitarian benefit to be derived from a plea of guilty, particularly one tendered in terms of a section 76 indictment. In failing to recognise that by conceding some discount, the sheriff in our opinion fell into error. As Mr Taylor for the appellant has explained, there is little incentive for any accused faced with any charge to plead guilty where he knows that almost inevitably he will be dealt with by the imposition of the maximum sentence without any concession for an early plea.

[4] That having been said, we consider that in this particular case the absolute minimum discount appropriate is all that can be considered. The driving of the appellant on this occasion was a particularly appalling example of bad driving and he has been guilty of such over a period of years. He has no respect for road traffic laws as his record amply demonstrates. Against that background, therefore, we consider the appropriate discount to apply to the sentence of 24 months imprisonment is one of one month, making that 23. From the sentence of 12 months the appropriate discount would be 2 weeks, making the sentence one of 111/2 months, and from the 6 months two weeks, making it a sentence of 51/2 months. So we shall quash the respective sentences of imprisonment and impose these alternatives. So far as the period of disqualification is concerned, we are in no doubt that that period was amply justified and do not interfere with it. To that extent the appeal is refused.

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