This judgment provides further guidance on sentencing discounts.
Nature of case
This case is about sentencing discounts and what the correct level should be when a person pleads guilty to an offence. Following on from the decision in Du Plooy, judges looked at certain specific questions around sentence discounting – such as whether discounting applies to specific parts of different sentences – like penalty points on a driving licence.
In this case, a bench of five judges considered seven different sentencing appeals at the same time. They were all about the level of sentencing discount to be applied to each sentence. The offences included housebreaking with intent to steal, assault, possession of a knife and careless driving.
The issue in this case was what the proper approach to sentence discounting was, and whether it should apply to the 'public protection' element of a sentence (that is the part of the sentence that is not given for punishment). The judges also looked at the question of whether sentence discounting should apply to periods of disqualification from driving and to penalty points.
In this case, the High Court decided that:
- The sentencing discount process had three stages:
- deciding what the sentence would be if no discount was given
- deciding whether there should be a discount
- if there should be a discount, deciding what the amount should be.
- The sentencing judge has the freedom to decide whether a discount should be given or not – only in exceptional cases will the Appeal Court interfere with that freedom.
- The factors that are relevant to discounting are:
- saving in jury costs, time and inconvenience
- sparing complainers and other witnesses from giving evidence in court.
- The following factors are not relevant to discounting:
- the strength of the case against the accused
- the accused’s previous convictions
- public protection
- whether the accused helped the police or the prosecutor
- whether the accused is sorry for what they have done
- whether the accused was unhelpful to the authorities.
- Public protection is relevant to working out what the overall sentence should be, but is not something that should be considered when thinking about the discount.
- Any discount given should be applied to the whole sentence, and sentencers should not try to work out what parts of the overall sentence are for public protection and try to remove them from any calculation about the discount.
- The extension period of an extended sentenceis not allowed to be discounted. If the law provides for a minimum sentence for a particular offence, that is not allowed to be discounted either, unless the law specifically allows it to be – for example section 196(2) of the 1995 Act says that in certain cases involving drugs offences, the minimum penalty of seven years can be discounted by up to one-fifth.
- Discounting applies to disqualification from driving and penalty points, but a discount couldn’t take a sentence below any minimum sentence set by law.
Gemmell v HM Advocate