Peter John Horribine v. Procurator Fiscal, Edinburgh [2008] HCJAC 21

Criminal Appeal Against Sentence:- 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, driving whilst disqualified and without insurance, contrary to sections 103(1)(b) and 143(1) and (2) of the Road Traffic Act 1988 (as amended). In relation to the s.103 charge the appellant was sentenced to six months' imprisonment and disqualified from driving for a period of five years; on the second charge the appellant was admonished. The appellant appealed against the sentence on the basis that the custodial sentence imposed was excessive in that the sheriff did not, in respect of the early plea, allow any discount on the sentence of six months, being the maximum which the sheriff could have imposed. In his report the sheriff stated:- "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." It was submitted on behalf of the appellant that the sheriff's reasoning, in particular, in relation to his remarks regarding the forum in which the proceedings were brought were wholly illegitimate. On behalf of the Crown it was submitted that the trial judge had reached his decision to impose the maximum custodial sentence partly because of the seriousness of the offence and partly with a view to protection of the public. Here the court held that it was illegitimate for the sentencer, in circumstances where discounting factors existed, to impose the maximum by reason of his belief that the maximum available to him was inadequate punishment for the offence in question.