Sentences: having the last word
Latest criminal cases, including sentencing discount; provocation; unduly lenient sentence; supervised release orders
Sentencing discount appeals
There have been a vast number of sentencing appeals since Du Plooy 2003 SCCR 1237. In recent times, however, the Appeal Court has tried to limit such appeals: see, for example Gemmell v HM Advocate 2012 JC 223, which affirmed that whether to allow a discount, and if so how much, are matters within the sentencing court’s discretion. More recently the Sheriff Appeal Court has followed this lead: McInally v Dunn  SAC (Crim) 5.
Consequently it was surprising to see their Lordships dealing with an appeal from the Sheriff Appeal Court against the number of penalty points imposed.
In Saini v Procurator Fiscal, Dundee  HCJAC 76 (12 October 2017) the appellant had pled guilty by letter at the earliest opportunity to a charge of speeding. The justice would have imposed a fine of £300 and six penalty points, but to reflect the early plea proposed to discount by a third. However, while he reduced the fine to £200, he discounted the penalty points only to five. In a supplementary report to the Sheriff Appeal Court the justice said that on reflection he meant to discount by a quarter and did not wish to discount by as little as a sixth; he concluded that a discount to four points was not merited given the speed involved. The Sheriff Appeal Court increased the fine to £225 and made no alteration to the penalty points.
On appeal to the High Court it was noted that an appeal court would only interfere with a discounting decision in exceptional circumstances. The focus of submissions in the Sheriff Appeal Court was on the confused nature of the justice’s approach to discount in relation to penalty points. No question was raised about the starting point. It was noted that had the matter gone to trial only two police officers would have been inconvenienced. The Appeal Court determined that the Sheriff Appeal Court had erred in law since there had been a mathematical error in relation to the justice’s original intention, and accordingly reinstated the fine of £200 and reduced the penalty points imposed from five to four.
In Herd v HM Advocate  HCJAC 80 (31 October 2017) the appellant pled guilty at a trial diet to a charge of assault under deletion of reference to the use of a crossbow. The sheriff selected a headline sentence of 13 months’ imprisonment, which he discounted by around 10% to 11 months and two weeks to take account of the guilty plea. The appellant had spent two months on remand and this was also deducted.
The appellant had spent seven days on remand when petition proceedings had been instituted. Three weeks after he was released on bail an offer was made to a senior fiscal to plead guilty in almost identical terms to those accepted on the day of trial. Email discussions continued without agreement from the Crown; the plea was again offered at first diet but rejected as the Crown was still seeking further information. The circumstances of its acceptance at the trial diet were not explained. The sheriff placed no weight on the earlier discussions, in terms of Spence v HM Advocate 2008 JC 174, which required an unequivocal offer to have been made at an earlier stage.
The Appeal Court considered the sheriff should have taken into account the Crown’s change of position and given weight to the fact that the appellant’s position had not changed since the initial offer three months earlier. The court reiterated the need to be able to vouch an earlier offer, either by reference to correspondence or having it recorded in the minutes. Using the original headline figure of 13 months, the Appeal Court discounted to nine months and three weeks, then deducted the two months spent on remand.
Provocation and third parties
Quite regularly I see inadequately specified special defences of self-defence being lodged: it is not enough to aver that the accused was “acting in self-defence at the time” or “in the defence of another”. Some specification has to be given of the nature of the attack faced or being in imminent fear of attack, and the nature of the force used: HM Advocate v McGlone 1955 JC 14; Mackenzie v HM Advocate 1983 SLT 220.
In Donnelly v HM Advocate  HCJAC 78 (9 November 2017) the appellant was convicted of murder by repeatedly striking the deceased with a knife. At trial he had lodged a notice of self-defence that he had acted under reasonable apprehension that the deceased was about to attack his friend CF with a bottle. Self-defence was not presented to explain the actual use of the knife as opposed to its presentation, and the Appeal Court indicated that this was not a special defence of self-defence at all. The defence position was that the knife had been presented in apprehension of an attack but the killing was accidental. CCTV footage showed the appellant approach the deceased, who was speaking to CF and holding a bottle by his side, and stab him twice in the chest, though a young witness stated that the deceased had moved towards the appellant. CF said that after they left the locus he had asked the appellant why he had done it and he replied: “I thought he was going to hit you with a bottle.” The appellant’s evidence was that the deceased had been angry and threatening towards CF. The appellant produced a knife, the deceased turned and swung at him with the bottle and he put his hands up to ward off the blow and must have struck him with the knife. He did not explain the stab wounds.
In response to the trial judge, defence counsel confirmed he did not wish to amend the terms of the self-defence; the defence to the stabbing was not self-defence but accident. The trial judge allowed the issue of provocation towards the appellant to go to the jury.
The focus of the appeal was whether provocation could arise from the acts of the deceased towards CF, a third party, or was restricted to where an accused had been assaulted and subjected to substantial provocation. Drury v HM Advocate 2001 SLT 1013 had accepted that provocation could arise where the accused discovered sexual infidelity by a partner. After considering a number of cases dating back to Hume, the court was wary of extending the definition of provocation and the appeal against conviction was refused.
An appeal against the punishment part of the sentence, set at 20 years, was also unsuccessful. Although the incident had not been premeditated, the appellant had been armed with a knife and had a significant record for violence.
Unduly lenient sentence
Crown appeals are relatively infrequent, and appeals against sentence seem to be fewer these days than formerly.
In HM Advocate v CH  HCJAC 82 (15 November 2017) the accused had pled guilty to putting his penis in the mouth of a three year old boy, causing the boy to masturbate him and masturbating himself, contrary to s 18 of the Sexual Offences (Scotland) Act 2009. He was also charged with filming the incident on his mobile phone, contrary to s 52(1)(a) of the Civic Government (Scotland) Act 1982. The incidents had occurred when the accused, a friend of the boy’s father, had been babysitting. The child disclosed the incident when his parents came home. Semen was found in his mouth. Police subsequently recovered the mobile phone footage. The accused, aged 28 at the time, had no previous convictions. He indicated he had taken drugs which had had a disinhibiting effect, but also that he was sexually attracted to children. The authors of the social work and specialist Clyde Quay Project reports assessed him as being of high and moderate risk respectively. A psychiatric report made no recommendations.
A cumulo sentence of three years nine months (discounted from five years) was held unduly lenient. English Sentencing Council guidelines suggested a sentence in the range 11 to 17 years with a starting point of 15 years. The Appeal Court considered that would produce a sentence higher than considered appropriate in Scotland, but noted the act had been aggravated by filming.
It substituted sentences of six years for the rape, reduced from eight years due to the timing of the plea. The second charge carried a three year maximum; a separate sentence of 24 months, discounted from 32, was imposed. The appeal had taken issue with the failure to impose an extended sentence, but while it was held competent to appeal this aspect, the Appeal Court did not see it necessary to impose an extended sentence.
Supervised release orders
I must say that I find s 209 of the Criminal Procedure (Scotland) Act 1995, which deals with supervised release orders, very difficult to follow, and it is no surprise that in a busy court mistakes are made when SROs are imposed.
An SRO may be made in a solemn case, other than a sexual offence, when a term of imprisonment of less than four years is imposed and the court considers it necessary to protect the public from serious harm on release. A background report has first to be obtained and conditions will be imposed covering the supervision period after the custodial part is served. I often make conditions for the offender to receive supervision re alcohol, drugs and/or mental health problems and may make a condition for the offender to reside at approved accommodation if otherwise homeless or likely to wish to live at an unsuitable address. This ensures that on release the offender is taken to supported accommodation and reduces the likelihood of immediate reoffending.
In Loughlin v HM Advocate  HCJAC 81 (31 October 2017) the appellant, aged 39, had pled guilty on indictment to the theft of a car and separately resetting a powerful car, failing to stop when required by police, driving dangerously in an effort to avoid apprehension and driving without insurance. He was subject to two bail orders at the time.
After obtaining reports the sheriff admonished on the failing to stop and insurance charges. On the remaining charges the sheriff imposed sentences totalling two years and two months, as reduced by two months for time on remand. Had matters continued to trial, sentences would have totalled three years and six months. As well as disqualifying the appellant, the sheriff imposed a 12- month SRO.
At date of sentencing, the appellant was serving 35 months and nine days in an accumulation of other sentences ordered to run consecutively. The new sentence was also to run consecutively, producing a total of more than five years, which placed him in the long-term prisoners’ category and outwith the scope of an SRO. He would be subject to parole conditions on release which would be more involved than an SRO regime. The sheriff considered his SRO period could run after a six-month parole supervision period.
Section 209(7)(b) of the 1995 Act stipulates that no part of the SRO period may extend beyond the entire term specified in the sentence. The SRO was quashed as incompetent.
Frank Crowe, sheriff at Edinburgh