Sheriff Appeal Court increases sentence discounts in Elgin drink driving appeals

Graham Hendry and Walter Grant both pled guilty to charges in contravention of Section 5(1)(a) of the Road Traffic Act 1988 brought against them by the Procurator Fiscal in Elgin, and had discounts applied to their sentences. They challenged the levels of discount they were each awarded by the sentencing sheriff.

Both appeals were heard by Sheriff Principal Derek Pyle and Appeal Sheriff Fiona Tait.

Offered no defence 

Mr Hendry was found to exceed the legal alcohol limit and pled guilty to his charge at the first calling. He was sentenced to a community payback order of 200 hours of unpaid work and disqualified from holding or obtaining a licence for 54 months. A discount of 25 per cent was applied to both the hours of unpaid work and the period of disqualification on account of his early guilty plea. He had previously been convicted of a similar offence in 2015.

In her reasoning, the sheriff said that she considered the discount was appropriate to reflect the utilitarian value of the plea, as there were no civilian witnesses and only two police witnesses. She considered that the appellant offered no defence and any trial would have been unlikely to exceed thirty minutes.

The sheriff also allowed the appellant the opportunity to participate in the drink driver rehabilitation programme but restricted the reduction to the disqualification period the appellant would be entitled to upon completing the course to 10 per cent. In allowing the appellant to participate in the scheme, the sheriff noted that he was not a first offender and admitted to having an alcohol problem, and this was factored into the potential reduction he could obtain by participating. The length of this reduction was also challenged.

Time and inconvenience caused 

Delivering the opinion of the court, Sheriff Principal Pyle noted: “While we recognise that appeals against the level of discount should be allowed only in exceptional circumstances, we consider that the sheriff fell into error in stating that there was no defence. In doing so, she was in effect regarding the strength of the Crown case as a relevant factor in the consideration of the sentencing discount.”

He continued: “Nor do we regard as relevant the length of a trial. Doubtless many, if not most, summary trials are limited in scope and are therefore likely to be concluded in less than a day, but that factor ignores the obvious point that the time and inconvenience caused by an unnecessary trial concerns much more than the diet itself, not least the preparation for it by the Crown, the court, the sheriff clerk and the court staff as well as the attendance of witnesses on the day including the time spent waiting to be called.”

Regarding the drink driver rehabilitation programme, Sheriff Principal Pyle said: “In our opinion the circumstances of the appellant as set out by the sheriff reinforce, rather than diminish, the need in the interests of public safety for the appellant to attend the course and thereby be incentivised to do so.”

He continued: “At first sight, it might appear counter intuitive that an offender with a cavalier attitude to drink driving should be offered the maximum incentive to attend the course, but that is to misunderstand its underlying purpose, namely the safety of the public.”

For these reasons, the appeal was allowed, with the court holding that Mr Hendry was entitled to a one third discount to both the hours of unpaid work and the period of disqualification. The appellant was also certified as suitable for a reduction of 25 per cent if he successfully completed the rehabilitation scheme.

Miscalculated the discount

Mr Grant, who was 69 years old and had no previous convictions, pled guilty to two charges that occurred within 12 days of each other. He also pled guilty to both charges at the first calling and was fined £3000 and disqualified from driving for 48 months in cumulo.

The sentence was discounted to £2,500 and 42 months respectively on account of his guilty plea. The sheriff, whose reasoning again focused on the utilitarian value of the plea, accepted she had miscalculated the discount for the early plea, which she considered should be 15 per cent.

Delivering the opinion of the court, Sheriff Principal Pyle said: “While we accept that appeals against the level of discount should be rare and that there is no automatic right to a particular level, we find the sheriff’s reasoning, which is brief, difficult to reconcile with the approach taken in the authorities and indeed the general practice in so far as that can be judged.”

He continued: “We do not know what the sheriff meant by ‘the nature of the offending’, but if that is to do with the seriousness of the charges in our opinion that should properly have been a consideration only at the point of determining the headline sentence before discounting.”

For these reasons, the appeal was allowed. The court held that the Mr Grant was also entitled to a one third discount to both parts of his sentence. As in Mr Hendry’s appeal, Mr Grant also successfully challenged the potential discount he could be awarded on completing the drink driver rehabilitation scheme and was certified as being entitled to a 25 per cent discount on completion.