APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Sheriff Principal Lockhart	[2012] HCJAC 115 XJ522/12 OPINION OF THE COURT delivered by LADY PATON in NOTE OF APPEAL AGAINST SENTENCE by BRIAN MACKIE Appellant; against PROCURATOR FISCAL, ABERDEEN Respondent: _____________

Appellant: Duff; Davidson Chalmers, Edinburgh

Respondent: Rodger, AD; Crown Agent

9 August 2012

[1] We agree with the sheriff that this offence was a serious one for the reasons set out in his report. We note the aggravating and mitigating factors in the agreed Crown Narrative as follows:

Aggravating factors - serious injury sustained and potential for greater injury or death. Incident readily foreseeable and easily avoided by simple measures which are well established and the subject of existing health and safety executive guidance.

Mitigating factors - no evidence that the breach occurred as a result of cost cutting measures or a blatant disregard for the safety of the appellant's employees.

[2] Notwithstanding the agreed narrative, the sheriff states in para 21 that in his assessment there was "demonstrated a significant disregard for the safety of the appellant's employees".

[3] In our view the sheriff, in carrying out the balancing exercise which he was obliged to do in respect of the agreed aggravating and mitigating factors, gave insufficient weight to the mitigating factors. We also take into account the downturn in the economy which has resulted in a significant decrease in the appellant's earnings.

[4] The maximum fine available was £20,000. In the whole circumstances we consider that the starting point of £18,000 was excessive. In our view the appropriate starting point was £15,000. In relation to discount, we were referred to para 48 of Gemmell v Her Majesty's Advocate 2012 SLT 484. Standing that guidance it seems to us that the utilitarian value of the plea (which was made at the first opportunity) was high, and that the appropriate discount in the circumstances should be 33%. Ultimately, therefore, we shall allow the appeal, quash the fine of £15,000 and substitute therefor a fine of £10,000. A fines enforcement order will also be imposed.