Michael Saini v. Procurator Fiscal, Dundee [2017] HCJAC 76

Sheriff Appeal Court – Point of Law:- The appellant pled guilty to a charge of speeding at the district court. The justice allowed a discount of 1/3 on account of the plea of guilty and reduced the fine from £300 to £200. In relation to penalty points the points were discounted from 6 to 5 as the justice wrongly thought that given he had to impose a minimum of 3 penalty points the discount could only be applied to the points imposed above that figure. As such he applied the discount to 3 points rather than 6 and the appellant appealed against the imposition of 5 penalty points. In his report to the sheriff appeal court the justice stated that, whilst he did not wish to discount by as little as a sixth, his view was that a reduction to four penalty points would have been a greater discount than was merited given the speed of the vehicle. The SAC considered that a discount of 15% was appropriate, increased the fine to £255 and made no alteration to the level of penalty points. That decision was appealed to the high court. The SAC acknowledged that an appeal court should only interfere with the issue of discount in exceptional circumstances, however, considered that in the present case the justice had failed to provide adequate reasons fro the discount. The SAC also indicated that this was a case in which conviction was almost inevitable and the SAC considered it desirable that the court should exercise discretion in accordance with some broad general principles and that it should take the opportunity to “express a general view of the level of discount to be awarded in cases such as this where it may be considered that conviction is, to repeat the phrase used in Coyle and Horribine practically inevitable.” As such the SAC considered that a discount of 1/3 was excessive and an appropriate discount was 15%. Here the court considered the law in relation to discounts and reaffirmed what was said in Gemmell v HMA 2012 JC 223 where it was made clear at paragraph 48 that “the strength of the Crown case ought not to be treated as a factor influencing the amount of the discount”. What was also made clear in Gemmell was that the question of the discount to be applied in any given case was a matter for the discretion of the sentence which will only be interfered with by an appellate court in exceptional circumstances, where, for example, the sentence at first instance has not taken into account the principles upon which sentencing discount is based. In the present case the justice’s initial error was compounded by a supplementary report which resulted in further confusion given the explanation offered. What was clear from the justice’s original report to the SAC was that the justice was aware that the issue of discount was a matter for his discretion and the only relevant factor was the utilitarian value of the plea and given that the plea was tendered at the first opportunity a discount of a third was appropriate. The court here considered that, in light of those reasons, the SAC should not have interfered in the sentence other than to correct the justice’s obvious arithmetical error. As a result the court considered that the SAC was in error and the court reinstated the fine of £200 and reduced the penalty points from 5 to 4.