Appeal against sentence allowed after sheriff ‘misdirected’ herself on question of discount

The Appeal Court of the High Court of Justiciary reduced the period of imprisonment to 20 months after ruling that the sheriff failed to comply with the authoritative guidance on the approach to calculating a discount on sentence set out by the full bench in the case of Gemmell and others v HM Advocate 2012 SCCR 176.

Culpable and reckless conduct

Lord Menzies and Lord Turnbull heard that the appellant Barry Little, 26, pled guilty by section 76 letter within days of his first appearance on petition on a charge of culpably and recklessly throwing paving stones at the window of a neighbour’s house.  

The circumstances of the offence included the fact that the householder’s 10-year-old son was within the living room of the premises when the appellant threw a large paving stone through the window, narrowly missing the child.  

Having heard a narration of the circumstances and the appellant’s solicitor in mitigation, the sheriff selected a headline sentence of 30 months’ imprisonment, which she decided to restrict by a period of about 25% in light of the plea of guilty, which resulted in a sentence of 22 months.

However, the appellant was granted leave to appeal a ground which challenged the level of discount of sentence permitted by the sheriff, who had stated that she was “limiting” the discount for the plea of guilty as the complainer was a juvenile aged 10 years and the circumstances of the offence were such that a plea of guilty was “inevitable”.   

Discount

In her report to the appeal court the sentencing sheriff said that the age of the child was an “aggravating factor” in the circumstances and that given the “weight of evidence” implicating the appellant she considered a modification of 25% was “appropriate”.

But in the case of Gemmell, the court gave authoritative guidance on the circumstances in which a discount of sentence might be permitted and on the approach to the calculation of any such discount to be afforded.

The Lord Justice Clerk made it plain that the assessment of the headline sentence and the assessment of any discount were “separate processes” governed by “separate criteria”, and that the only relevant consideration in relation to discount was how far the “utilitarian benefits” of the early plea have been achieved. 

The Lord Justice Clerk also made plain that factors which aggravate the commission of the crime were relevant only to the sentencer’s decision on the “starting figure” for sentence.   

Allowing the appeal and quashing the original sentence imposed, the appeal judges ruled that the sheriff “misdirected” herself.

Sheriff failed to follow court’s guidance

Delivering the opinion of the court, Lord Turnbull said: “Whilst we readily recognise that the age of the complainer in the present case constituted an aggravation of the offence, and was therefore relevant to assessment of the appropriate headline sentence, we are satisfied that the sheriff misdirected herself in taking account of that aggravating feature as a factor restricting the level of discount to be afforded.

“If anything, one might have thought that the utilitarian value of the plea was increased by virtue of the fact that a young child was not required to give evidence or to have the worry of the case hanging over him for a lengthy period of time.”

In Gemmell, the Lord Justice Clerk also explained that the strength of the Crown case was not to be treated as a factor influencing the amount of discount to be permitted.

Accordingly, the judges held that the sheriff misdirected herself in that regard also.   

Lord Turnbull added: “In light of the clear and authoritative guidance given in the case of Gemmell we find it surprising that the sheriff approached the assessment of sentence discount in the manner which she explains that she did. 

“In the report which she has prepared she gives no reason for departing from, or failing to comply with, the guidance provided. 

“In these circumstances we shall quash the sentence imposed and in its place we shall impose a sentence of 30 months’ imprisonment restricted in light of the early plea to a period of 20 months, backdated to the same date as selected by the sheriff.”