Peter John Horribine V. Procurator Fiscal, Edinburgh
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Justice General,Lord Kingarth |
| Neutral Citation | [2008] HCJAC 21 |
| Date | 29 April 2008 |
| Docket Number | XJ1135/07 |
| Court | High Court of Justiciary |
| Published date | 29 April 2008 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Kingarth Lord Reed | [2008] HCJAC 21 Appeal No: XJ1135/07 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST SENTENCE by PETER JOHN HORRIBINE Appellant; against PROCURATOR FISCAL, Edinburgh Respondent: _______ |
Act:: Shead; Sinclairs, Edinburgh
Alt: McCallum, A.D.; Crown Agent
28 March 2008
[1] On 21 September 2007 at the first calling of the case the appellant pled guilty as libelled to the two charges on the complaint against him, namely, to having on 20 September driven a vehicle while disqualified from driving and to having driven that vehicle without insurance, contrary to sections 103(1)(b) and 143(1) and (2) respectively of the Road Traffic Act 1988 (as amended). The sheriff on the first charge sentenced the appellant to six months' imprisonment and disqualified him from driving for a period of five years; on the second charge he admonished him.
[2] The circumstances of the instant offences are not material for present purposes. Suffice it to say that the appellant was, on information received, stopped by the police while driving on a road in Edinburgh. The appellant has, however, a significant record of prior offending. In all he has previously been convicted 31 times. Of these convictions 14 relate to breaches of court orders. This is his seventh conviction for contravening section 103(1)(b). It may be noted, however, that the last such contravention was in 1996.
[3] The principal issue in this appeal is whether the custodial sentence imposed was excessive, regard being had to the fact that the sheriff did not, in respect of the early plea, allow any discount on the sentence of six months, being the maximum which, by reason of the proceedings having been taken on complaint rather than on indictment, he could have imposed. In his report to us the sheriff observes -
"I was conscious that in the normal course of events an accused person pleading guilty at the outset could expect a discount. Such is, of course, my normal practice. As I understand it, however, such a discount remains a matter for my discretion and in all the circumstances I chose not to exercise that discretion in favour of the appellant. I did so because in my view my powers in relation to this appellant were wholly inadequate. This man should have been prosecuted on indictment. He has an appalling record."
The sheriff then narrates the record summarised above and continues:
"It is clear that he has a complete and utter disregard for orders of court and, in particular, will drive a vehicle in the face of a disqualification with absolute impunity. In my view the only protection which can be afforded to the public is by removing him for the maximum period from the temptation of driving. This appellant's attitude as evidenced by his record and the circumstances of the present offences in my view merited this being a rare case in which I would not exercise my discretion in affording him the discount."
[4] Mr. Shead for the appellant submitted that the reason (or, at least, the primary reason) given by the sheriff for declining to allow a discount was because he thought that proceedings should have been brought on indictment. That reason was wholly illegitimate. It must be taken that the Crown had carefully considered the public interest in deciding to proceed on complaint. The sheriff's approach was inconsistent with...
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