Man convicted of violent domestic assaults fails in appeal for sentence discount for guilty plea

The Appeal Court of the High Court of Justiciary rejected the appellant’s claim that he ought to have been given a “discount” in his sentence for pleading guilty, after noting that the plea was tendered on the morning of the trial, when jurors and witnesses had already arrived at court.

Lord Glennie and Lord Turnbull heard that the appellant James Brand pled guilty on 7 January 2019 to two charges on the indictment he faced, which were accepted by the Crown.

‘Violent assaults’

Charge 1 involved a very serious assault in 2015 in which the complainer was rendered unconscious and sustained injury, including a fracture to the bone under her eye and other damage from which she was lucky not to have lost the sight of her right eye.

Charge 4 involved further violent assaults on three occasions between late 2016 and early 2017.

Having adjourned the diet until 6 February 2019 for the preparation of a criminal justice social work report, the sheriff then imposed a sentence of four years’ imprisonment and a non-harassment order.

But the appellant, who had previous convictions for public order offences and a conviction for assault to injury, appealed against the sentence imposed on the ground that the sheriff “erred” in failing to permit a sentence discount given his plea of guilty. 

The note of appeal stated that the plea was intimated to the Crown in advance of the hearing and avoided the necessity of witnesses requiring to come to court to give evidence, including two child witnesses aged eight and 10 years.

The note of appeal went on to state that in the event the plea was in fact tendered on the first day of the sheriff and jury sitting, but no jurors were required to attend and no witnesses were present.

‘Utilitarian value’

However, the correct position was that the solicitor acting for the appellant telephoned the procurator fiscal at around 4.30 pm on Friday 4 January to confirm that a plea would be tendered.

Although efforts to contact the witnesses were then made these were not successful and the complainer and the two child witnesses were in attendance at the court on the Monday morning when the plea was tendered and accepted.

Thus the terms of the note of appeal directly contradicted what the sheriff was told by the appellant’s agent when the case called for sentence, which was that witnesses were present when the plea was tendered, and that in the circumstances it was accepted that a discount was unlikely.

Before the appeal court, the solicitor advocate who appeared for the appellant was unable to explain how it came to be that a statement which was factually incorrect, and in direct conflict with what the sheriff was told by a member of that same firm of solicitors who had acted for the appellant throughout the proceedings, came to be included by them in the note of appeal.

Nor was he able to explain the basis of the assertion in the note of appeal that no jurors were required to attend.

Nevertheless, it was submitted that there remained a “utilitarian value” in the plea of guilty in light of the fact that although witnesses were present none were called to give evidence and that the sheriff ought to have permitted a discount.

‘Cogent reasons’

Refusing the appeal, the judges observed that the sheriff’s reasons for deciding not to reduce the sentence were “entirely cogent”.

Delivering the opinion of the court, Lord Turnbull said: “In declining to afford a discount of sentence the sheriff took account of the factually correct information which was placed before him, the observations on discount made by the appellant’s agent and the whole history of the case proceedings. Having done so he concluded that it was inappropriate to afford a discount for this plea of guilty tendered at the trial diet.

“In the case of Gemmell v Her Majesty’s Advocate 2012 JC 223, the court reiterated that the decisions whether to allow a discount and if so what discount to allow remain a matter for the discretion of the sentencer. 

“We note what was said by the Lord Justice Clerk at paragraph 43 of his opinion, where he observed that there will always be some benefit in an early plea, if only in the administrative benefits that result from it. But we also take account of what he said at paragraph 77, that the court’s discretion to allow a discount should be exercised sparingly and only for convincing reasons.

“In the present case we are satisfied that the sentencing sheriff gave due weight to the information placed before him and that he decided not to apply a discount for reasons which are entirely cogent.”

He added: “In addition, we note that what was said in paragraph 34 in the case of Gemmell where it was explained, under the heading of ‘Justification of Discounting’, that the primary benefit that is realised in every case is the saving of administrative costs and the reduction of the court’s workload. 

“It therefore seems to us that in considering whether to afford a discount of sentence for a plea tendered at a trial diet the sentencer should, as the sheriff did in this case, take account of the whole proceedings. In this case the relevant proceedings, and therefore the administrative costs and court workload involved, comprised seven separate hearings.

“In these circumstances, in our opinion, there is no basis upon which the exercise of the sheriff’s legitimate discretion can be criticised and the appeal must be refused.”