Motorist convicted of two drink-related offences fails in appeal against car forfeiture

A motorist who was ordered to forfeit his £15,000 car after admitting two significant drink-related road traffic offences within a period of just over a week has failed in an appeal against what he claimed was a “disproportionate and excessive” penalty.

The Sheriff Appeal Court ruled that the sentence imposed was not excessive on the facts and circumstances presented to the sheriff.

Sheriff Principal Craig Scott QC and Sheriff A L Macfadyen heard that the appellant Chenao Li pleaded guilty at an intermediate diet to contraventions of section 5(1)(a) and section 7(6) of the Road Traffic Act 1988 for offences which took place on 22 and 31 August 2015 respectively.

In relation to the section 5 offence, the appellant had been nearly three times over the limit and as far as the section 7 offence was concerned, he had been “obstructive and uncooperative”.

He was fined £750 discounted from £1,000 in relation to the contravention of section 5 of the 1988 Act and £1,200 discounted from £1,500 in relation to the contravention of section 7.

He was also disqualified from driving for a period of three years and an order was made for forfeiture of his £15,000 car, which was the sole basis of the appeal.

Under reference to Wheatley’s Road Traffic Law in Scotland, the sheriff was of the view that the appellant met the criteria set out therein and concluded that the forfeiture order imposed would be utilised to “tailor a sentence that achieves public protection”.

She had regard to the fact that the appellant had “blatantly disregarded” a bail undertaking in respect of the first offence when he committed the second offence and noted the proximity in time of the two incidents.

In her assessment, forfeiture of the appellant’s motor vehicle was a “reasonable measure” to prevent re-offending.

However, it was contended that in ordering forfeiture of the vehicle the sheriff had “failed to afford adequate consideration” to the value of the motor vehicle.

In mitigation, the information made available to the court suggested that the appellant came from a wealthy family who had provided the money to purchase the car and that he could meet a “substantial fine”.

It was also argued that the sheriff had erred in the court’s approach to public protection.

While accepting that issues of public protection properly arose, the solicitor advocate for the appellant argued that protection of the public had already been addressed by way of the “significant period” of disqualification imposed.

Put shortly, when the entire disposal by the court was considered, it was maintained that that part of it representing the financial penalty which, in effect, had been created by the forfeiture order, rendered the overall disposal “excessive”.

However, the appeal sheriffs did not find that to be a compelling argument and held that the sheriff rightly had proper regard to the fact that the “cavalier” nature of the appellant’s offending posed a “clear risk to the public”.

Delivering the opinion of the court, Sheriff Principal Scott said: “When the level of the reading relating to the section 5(1)(a) offence is taken along with repeat offending a matter of days later, all against the background of the appellant’s subsequent attitude to his offending, it was, in our opinion, entirely legitimate for the sheriff to consider a forfeiture order.

“Her consideration of the order and its subsequent imposition were, to our mind, beyond the criticism levelled for the purposes of this appeal. We do not consider that the overall disposal in this case can be described as excessive on the facts and circumstances presented to the sheriff. It is to be noted that the minimum period of disqualification was imposed here.

“In our opinion, whilst a forfeiture order can never constitute an absolute safeguard when it comes to protection of the public, that observation does not serve to restrict its use where there are compelling circumstances suggesting that an offender’s conduct was redolent of an exceptional disregard for the consequences of his behaviour. We have concluded that the conduct of the appellant in this case was sufficient to meet that test.”

The court also disapproved a sentence in Wheatley’s Road Traffic Law in Scotland, which reads that “it is inappropriate to consider the level of fine that might be imposed and the value of the car in deciding whether to order forfeiture”, stating that they find it “difficult to accept” that the level of fine imposed and the value of the motor vehicle might not be taken into consideration.