Barry Little v. Her Majesty’s Advocate [2018] HCJAC 28

Note of appeal against sentence:- On 30 January 2018 the appellant pled guilty by accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to a charge of culpable and reckless conduct by throwing paving stones at the window of a neighbour’s house on 9 December 2017. The plea was offered a matter of days after the appellant’s first appearance on petition. The sentencing sheriff selected a headline sentence of 30 month’s imprisonment that she discounted to 22 months backdated to 11 December 2017 to reflect the plea of guilty, which amounted to a discount of around 25%. The appellant was granted leave to appeal against sentence on the ground that the level of discount afforded to the appellant was insufficient. The sheriff reported to the court that she limited the discount on account of:- (1) the fact that the householder’s 10 year old son was within the living room when the appellant threw a large paving stone through the window which narrowly missed the child; and (2) in light of the weight of evidence against the appellant which made a conviction inevitable. Here the court allowed the appeal. The court reiterated the guidance of the full bench decision in Gemmell v HMA 2012 SCCR 176. As was made clear in Gemmell, at paragraph 37 of the opinion delivered by the Lord Justice Clerk, assessing the headline sentence and the level of discount to be deducted are different tasks and the only relevant consideration in determining the level of discount is the utilitarian benefit of the plea. At paragraph 38 it is emphasised that any aggravations in the commission of the crime are only relevant in determining the headline figure. The court noted here that the aggravating factor of the presence of the child in the locus was only relevant in the assessment of the headline figure and was irrelevant in assessing the discount to be applied. The court took the view that, if anything, the age of the child and the fact the child was not required to give evidence increased the utilitarian benefit of the plea. In Gemmell the Lord Justice Clerk went on to explain that the strength of the Crown case was not a relevant factor in determining the level of discount to be applied. In light of the sheriff misdirecting herself in these ways, and the absence of any explanation why she departed from the guidance in Gemmell, the court quashed the sentence imposed and imposed a sentence of 20 months imprisonment, which had been discounted form 30 months allowing the maximum discount of a third.