Cameron Joshua Wilson v. Procurator Fiscal, Aberdeen [2018] HCJAC 50

Reference by the Sheriff Appeal Court under section 175A of the Criminal Procedure (Scotland) Act 1995 re note of appeal against sentence:-:- On 9 November 2017, at Aberdeen District Court, the appellant pled guilty to a charge of speeding by driving at 80mph in a 60 mph zone in Stonehaven on 12 April 2017 contrary to the Road Traffic Regulation Act 1984. A fine of £200 was imposed which was discounted from £250 on account of the plea of guilty. The justice of the peace imposed 4 penalty points (the compulsory range being 3-6 points). The justice did not consider that a discount in the number of penalty points was appropriate in the particular circumstances of the case (there had been a warrant granted following the appellant’s failing to appear at the pleading diet) and, in addition, the justice considered that a discount of 20% would have resulted in a reduction in penalty points of 0.8 which the justice was unable to do. The appellant appealed against the sentence imposed it being contended that the imposition of points not only had a preventative purpose it also had a punitive and deterrent effect and that points fell within the phrase “other disposal or order” used in section 196 of the Criminal Procedure (Scotland) Act 1995. As such, it was submitted that where a sentencer considered that a discount was appropriate the same discount should be applied to all elements of the sentence. The Sheriff Appeal Court made a reference to the High Court due to the number of cases it dealt with in which there was a discrepancy between the level of discount applied to fines and the penalty points element of a sentence. The SAC referred the case to the High Court on the following questions:- “(1) What is the proper construction of section 196 of the 1995 Act in road traffic cases where the sentencing process involves the imposition of a fine or other penalty and separately the imposition of penalty points?; (2) In keeping with the court’s discretion on matters of discount, may the court adopt a discriminating approach to discount over separate penalties in road traffic cases?; (3) May the court take account of public safety on the roads when considering whether to discount and what level of discount to apply to penalty points or to disqualification in appropriate cases?; and (4) What is the proper approach to the interpretation of section 175A of the 1995 Act when the Sheriff Appeal Court or any party to an appeal proposes a reference to the High Court of Justiciary under that provision?” Here the court considered the questions posed by the SAC in light of the clear principles in Gemmell v HMA 2012 JC 223. In relation to the first question posed the court stated that all penalties in the same case (of which fines and penalty points both were) should be approximately the same following a plea of guilty. The court noted that there will be circumstances where that cannot be achieved, for example, where applying the same discount would reduce the penalty to below the statutory minimum or where the relevant statute does not permit a discount. Similarly, in relation to circumstances where a particular level of discounts would result in fractions of penalty points then common sense requires to be applied to round up or down to achieve an appropriate practical result. Similarly, in relation to the second question posed by the SAC it is not normally legitimate for different levels of discount to be applied to different elements of the sentence. In relation to the third question posed by the SAC the court answered that in the negative and reiterated that the only factor to be taken into account in determining the level of discount to be applied is the utilitarian value of the plea. In relation to the fourth question posed by the SAC the court considered that the SAC was correct to refer the present case in light of the frequent discrepanices in the level of discounts applied to the fines and penalty points imposed. The court stated that the High Court will not normally refuse a reference as the SAC’s view of whether a particular case raises a point which is “complex or novel” is determinative. In the present case the court remitted the case back to the SAC to dispose of the case in light of the answers to the reference.