Ronald McMahon v. Her Majesty’s Advocate [2021] HCJAC 14

Note of appeal against sentence:- On 26 November 2020, at a Preliminary Hearing at Glasgow High Court, the appellant pled guilty to a charge of having in his possession, at an address in Paisley without the authority of the Secretary of State or the Scottish Ministers, a firearm which was disguised as another object, namely a stun gun disguised as a mobile phone, contrary to the Firearms Act 1968 section 5(1A)(a) as amended. The appellant was sentenced to 6 years imprisonment backdated to 1 July 2020. The appellant appealed against the sentence imposed it being contended that the sentence was excessive. Offences under section 5(1A)(a) of the 1968 Act attract a minimum sentence of 5 years imprisonment unless there are shown to be exceptional circumstances. It was conceded on behalf of the appellant that exceptional circumstances were not present and the appellant required to be imprisoned for no less than the minimum period prescribed by Parliament. The sentencing judge did not allow a discount and considered that a period of 6 years imprisonment was appropriate having regard to the appellant’s significant schedule of previous convictions which included a wide range of offences, including a High Court conviction for offences under the Misuse of Drugs Act 1971, the Firearms Act, assault and wilful fire-raising resulting in a sentence of 12 years imprisonment. The sentencing judge considered that it was not open to her to discount the sentence referring to HMA v McGovern 2007 SCCR 173 which, it was considered by the sentencing judge, contained obiter dicta to the effect that section 196 of the 1995 Act does not apply when a minimum sentence is prescribed by the 1968 Act. On behalf of the appellant it was submitted that the sentencing judge ought to have applied a discount to the starting point of 6 years having regard to the stage of the proceedings in which a plea of guilty was tendered (the indictment was served on the same day as a letter under section 76 of the Criminal Procedure (Scotland) Act 1995 was received by the Crown). It was further submitted that there was a utilitarian value to the plea and whist a discount of 25/33% was not available (as to apply such a discount would result in a sentence below the statutory minimum) the sentence that ought to have been imposed was one of 5 years imprisonment discounted from 6 years imprisonment. Here the court considered that the sentencing judge had erred in holding that it was not open to her to apply a discount to reflect an early plea of guilty where the resultant sentence is in excess of the minimum period laid down by Parliament for that offence and allowed the appeal. The court noted that for offences of this type, where a minimum sentence is required eg under the Firearms Act, a discount may be applied provided that the resultant sentence does not fall below the specified minimum period. In relation to what the court had said in McGovern the court noted that was a case where the Crown had appealed against the sentence imposed and the court was considering the issue of ‘exceptional circumstances’ rather than the issue of discount, however, McGovern did not provide authority that there was no scope for a discount where there was a minimum sentence, rather, that any discount of a sentence greater than the minimum sentence could not be discounted so that the final sentence was less than the minimum sentence. In the particular circumstances of this case the court considered that the appropriate headline sentence was 6 years and a discount of at least 25% was appropriate in light of the stage of proceedings at which the plea was tendered and, in light of the minimum sentence of 5 years, the sentence should be discounted to 5 years. As such the court quashed the sentence of 6 years imprisonment and substituted a sentence of 5 years imprisonment backdated to 1 July 2020.