Debbie Harkin+selina Sin Tung Fung V. Procurator Fiscal, Falkirk+procurator Fiscal, Aberdeen
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Mackay of Drumadoon,Lord Carloway |
| Neutral Citation | [2012] HCJAC 100 |
| Date | 20 June 2012 |
| Docket Number | XJ570/11; |
| Court | High Court of Justiciary |
| Published date | 20 July 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Mackay of Drumadoon Lord Philip | [2012] HCJAC 100 Appeal Nos: XJ570/11; XJ131/12 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeals against sentence by DEBBIE HARKIN Appellant; against PROCURATOR FISCAL, FALKIRK Respondent: and SELINA SIN TUNG FUNG Appellant; against PROCURATOR FISCAL, ABERDEEN Respondent: _______ |
Appellant Harkin: A Ogg, C Tait, solicitor advocates; Capital Defence Lawyers (for MTM Defence Lawyers, Falkirk)
Appellant Sin: Borthwick; Paterson Bell (for Burn & McGregor, Aberdeen)
Respondents: Di Rollo AD; the Crown Agent
20 June 2012
[1] These two appeals concern whether, when applying a discount for an early plea in terms of section 196 of the Criminal Procedure (Scotland) Act 1995, the discount should be applied to the element of the sentence taken as a starting point in the sentencing process ("the headline sentence" as it was phrased in Gemmell (infra) LJ‑C (Gill) at para [28]) or whether any minimum penalty fixed by the legislature should be deducted from that element before the application of any discount. It is said that this is not a matter which was argued specifically in Gemmell v HM Advocate 2012 SCCR 177 and it has been referred to this court, sitting with a quorum of three, in order to clarify any ambiguity.
[2] The two appeals concern motoring offences. In the first, the appellant pled guilty to a contravention of section 5(1)(a) of the Road Traffic Act 1988; having 78 microgrammes of alcohol in 100 millilitres of breath. She was fined £400, which had been discounted from £600 for an early plea. It was thus clear that the sheriff considered that a one third discount was appropriate. This was the appellant's second recent conviction for a breathalyser offence and she was therefore subject to a three year minimum disqualification period (Road Traffic Offenders Act 1988, s 34). The sheriff imposed a four year disqualification period, subject to a one year reduction in the event that the appellant complete a rehabilitation course (RTOA 1988, s 34A). He did not discount the period of disqualification because he regarded that period as one for the protection of the public rather than a penalty, and hence not a sentence within the meaning of section 196 of the 1995 Act. That approach was disapproved in Gemmell, (eg LJ‑C (Gill) at paras, [69]-[71]).
[3] The second appeal concerns penalty points. The appellant pled guilty to three offences: driving without insurance (contrary to section 143 of the Road Traffic Act 1988); driving without a licence (section 87 RTA 1988); and attempting to pervert the course of justice by giving a false name to the police. She was fined, respectively, £450, £120 and £350; these sums being discounted from £600, £180 and £420 (a range of about one quarter to one third). The court imposed 8 penalty points for the insurance conviction. The...
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