"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."

Discussion

"If that [reasoning] is to be understood as meaning that the court may act on the basis that the maximum is inadequate, we must express our disagreement. The imposition of the maximum, without any allowance, where one is otherwise appropriate would imply that the sentencer is approaching sentence on the basis that he or she could have sentenced the accused to more than the maximum: cf. Wojciechowski v McLeod [1992 SCCR 563] in which the court stated at p. 566 that it would not be open to a sentencer to decline to backdate a sentence on the basis that the maximum sentence was inadequate."

It is accordingly plain that, where a sentencing court is restrained by a maximum penalty (whether by reason of a statutory maximum for the offence or by reason of proceedings having been instituted in summary form), it is illegitimate for the sentencer, in circumstances where discounting factors otherwise exist, to impose the maximum by reason of his belief that the maximum available to him is inadequate punishment for the offence in question. The sheriff's reasoning, in so far as based on the view that the appellant should have been proceeded against on indictment, is accordingly unsound. In these circumstances his disposal is amenable to review by this court.

"There was no challenge to the relevance of the appellant's record to the decision to take as the starting point the maximum sentence permitted by statute. The question is whether, when the sheriff came to consider what discount to allow under section 196 for the early plea, the appellant's record of analogous previous convictions was relevant to the exercise of his discretion under that section, or had to be left wholly out of account. We are not prepared to hold that it was irrelevant. If that proposition were accepted, the result would be that a persistent offender, however richly he deserved the maximum sentence, both as punishment and to protect the public from his lawless driving, would be able to secure the 'normal' discount for a section 76 plea, and thus avoid the maximum sentence by a considerable margin. In the absence of any other considerations pointing to a discount of less than one third, that discount would have been allowed despite the record. We do not consider that we are driven to that unattractive result by the relevant statutory provisions. The sheriff was in our view entitled to restrict the discount as he did, and in doing so to bear in mind the appellant's record, as well as the fact (to which he refers) that section 103 seldom gives rise to any complexity that would explain a plea being tendered otherwise than immediately."

We accept and adopt that reasoning. The appellant's very serious record for analogous offences is a ground for modifying the amount of the discount which might otherwise have been appropriate. In Coyle a sentence of eleven months, representing a discount of one month from the twelve month maximum, was upheld. By analogy we allowed this appeal to the extent of quashing the sentence of six months imprisonment and substituting therefor a period of five months and two weeks.