Man who pled guilty to assault charge wins appeal over level of discount to sentence

The Appeal Court of the High Court of Justiciary ruled that the sheriff “misdirected” himself in the exercise of his discretion.

Lady Paton and Lord Turnbull heard that the appellant Anthony Herd pled guilty to a single charge of assault on the indictment he faced, under deletion of the words “fire an item from a crossbow at him striking him on the head”, which was accepted by the Crown.

Sentence discount

The sheriff selected a headline sentence of 13 months’ imprisonment, which he discounted by around 10% to a period of 11 months and two weeks in light of the appellant’s guilty plea, with a further two months deducted to take account of the time which the appellant had spent on remand, resulting in a final sentence of nine months and two weeks’ imprisonment.

However, the appellant was granted leave to appeal on a ground challenging the discount applied to his sentence, based on the procedural history of the case.

The court was told that the offence occurred on 11 April 2017 and the appellant appeared on petition four days later, before being fully committed on 21 April.

On 10 May his solicitor met with a senior procurator fiscal depute in order to discuss the case and made an offer on the accused’s behalf to plead guilty, in terms which were almost identical to the plea eventually accepted.

Later that day the fiscal contacted the appellant’s solicitor by email setting out the terms of the charge which he would recommend as acceptable to Crown Counsel, but following further email correspondence on 18 May and 25 May they were unable to reach agreement to resolve the case.

In due course the appellant was served with an indictment which cited him to a first diet on 25 July, at which the appellant’s solicitor again offered to plead in the terms set out in the email of 18 May, but the offer was again rejected.

A plea of not guilty was tendered to the court and a further first diet was fixed for 1 August, where the appellant reiterated a plea of not guilty.

Guilty plea accepted

Then, at the trial diet on 7 August the plea of guilty was accepted, although the circumstances in which the Crown’s view on the matter changed were not explained.

In his report to the appeal court, the sheriff explained that he was given an account of the history of communications between the Crown and defence, but that he took no account of the discussions.

He took the view that the plea offered in May had not been adhered to, that there was nothing to stop the appellant tendering a plea of guilty under deletion at either of the first diets or of explaining his position in the defence statement.

However, solicitor advocate for the appellant Ann Ogg submitted that unequivocal offers to plead guilty had been made on his behalf by his solicitor to the Crown, both orally and in writing and that the offer which he made correlated with the plea which was eventually accepted.

It was argued that the sheriff had been wrong in declining to take account of this history.

Allowing the appeal, the judges observed that the Crown’s attitude to the case changed at the trial diet, when the appellant’s agents were informed that the Crown would then accept the plea which they had rejected on two earlier occasions, and that the appellant’s position had not changed since May 2017.

Sheriff ‘misdirected himself’

Delivering the opinion of the court, Lord Turnbull said: “In our opinion, these are circumstances which the sheriff ought to have been prepared to consider in determining how to exercise his discretion in relation to discount of sentence. Since he declined to do so, we are satisfied that he misdirected himself in the exercise of his discretion and that we can determine the matter of discount for ourselves.

“We would reiterate, as has been said in previous cases, that the unequivocal intention of the offender can be vouched by tendering his plea and having it recorded at pre-trial hearings. If that is not done the circumstances in which the court can take account of pre-indictment indications may be limited, particularly…if the case proceeds to trial.

“In the present case though, for the reasons which we have given, we are prepared to approach the matter of discount by taking account of the previous history of the discussions between the appellant’s agents and the Crown.

“We shall quash the sentence which the sheriff imposed and in its place we shall impose a headline sentence as he selected of 13 months’ imprisonment, from which we shall permit a discount of 25% resulting in a sentence of nine months and three weeks. As the sheriff did, we will then deduct from that a period of two months to reflect the time spent on remand by the appellant resulting in a sentence of seven months and three weeks.”