Sheriff Appeal Court finds 14-month aggregate summary sentence to be incompetent

About this case:

• Citation:
  [2022] SAC (Crim) 3
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff Norman McFadyen

It was argued by counsel for William Hutchison that the overall headline sentence imposed by the sheriff was incompetent under summary powers. The appellant was originally sentenced to 10 months’ imprisonment in respect of the assault charge and 4 months in respect of the charge of threatening and abusive behaviour, both reduced on account of his guilty plea for an overall sentence of 11 months’ imprisonment.

The appeal was heard by Sheriff Principal Duncan Murray and Appeal Sheriff Norman McFadyen. The appellant was represented by Gilmartin, solicitor advocate, and the Crown by Bergin, advocate depute.

Resulting discounted sentence

On 20 April 2020, the appellant was admitted to Ninewells Hospital in Dundee after being brought there by police. He then proceeded to sing sectarian remarks at a nurse with an Irish accent, and later attempted to kick and punch a nurse who was trying to get him to stay in bed. As a result, he was charged with offences under section 5(1) of the Emergency Workers (Scotland) Act 2005 and section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, the latter aggravated by religious prejudice.

The appellant had a long record for public disorder as well as several convictions for police assault and some with racial or religious aggravations. It was not suggested before the sheriff that anything other than custodial sentence should be imposed, for which the sheriff selected a starting point of 10 months’ imprisonment in respect of the assault and 4 months for the other charge, to be served consecutively. The sentences were reduced to 8 months and 3 months respectively for the appellant’s guilty plea.

In his report, the sentencing sheriff expressed the view that it was the resulting discounted sentence that mattered as regards sentencing power, not the cumulative starting point. Counsel for the appellant submitted that this overall starting point was in fact incompetent in summary proceedings. The length of the appellant’s sentence was the only area in which leave to appeal was granted.

Wholly unacceptable behaviour

Appeal Sheriff McFadyen, delivering the court’s opinion, said of the sentencing rules as expressed by the sheriff: “While that is the position in solemn proceedings, the position there is different in that it is open to a sheriff to remit the accused to the High Court for sentence and it has been held that for that reason the sheriff can select a starting point in excess of the five year maximum, provided that the sentence imposed does not exceed five years.”

He continued: “The position is quite different in summary procedure where it is well established that on a single complaint it is not competent to select a starting point for sentence that exceeds the statutory maximum which is available to the court, which in the present case is 12 months, whether or not there is a single sentence or consecutive sentences are passed.”

Noting that the discounts applied to the sheriff were different on each charge, he added: “While the determination of an appropriate level of discount is a matter for the sentencer, provided it is adequately explained, given that the primary purpose of discounting is utilitarian it will rarely be appropriate to apply a different discount to different charges to which a plea of guilty is tendered and accepted at the same stage of proceedings.”

Assessing what the appropriate sentence would be, Appeal Sheriff McFadyen noted: “We are satisfied that the present aggregate sentence cannot stand, but we are equally satisfied, as was the sheriff, that this was a serious case with wholly unacceptable behaviour directed at hospital staff who were undertaking a responsible and difficult job and that plainly required to be reflected in the sentence passed.”

The court therefore quashed the sentence imposed in respect of the assault charge and imposed a new sentence of 8 months’ imprisonment, reduced to 6 months by the guilty plea. The second sentence was allowed to remain in place, resulting in a new aggregate sentence of 9 consecutive months’ imprisonment.