William Davidson v. Her Majesty’s Advocate [2016] HCJAC 110

Note of appeal against sentence:- On 2 August 2016, at Perth Sheriff Court, the appellant pled guilty on indictment at the first diet to a charge of assault and robbery whereby he had entered a newsagents’ in Perth with his face masked and assaulted an employee there by demanding money and pressing a knife against his body and robbing him of £1,172. Sentenced was deferred until 30 August 2016 for the purpose of the court obtaining a Criminal Justice Social Work Report. When the case called on 30 August the appellant was sentenced to 42 months imprisonment discounted from 48 months imprisonment on account of the plea of guilty. The appellant appealed against the sentence imposed on the grounds it was excessive in that:- (1) the sheriff failed to take proper account of the appellant’s personal circumstances and the starting point of 48 months imprisonment was excessive; and (2) the discount of 6 months was inadequate having regard to the utilitarian value of the plea that, whilst tendered at the first diet, had been intimated to the sheriff clerk at Perth by letter dated 19 July 2016 advising that the plea would be tendered at the first diet. In relation to the personal circumstances of the appellant it was submitted on his behalf that at the time of the commission of the offence he was at rock bottom having been a long standing abuser of heroin since the late 1990s and that he had been injured in a serious road traffic accident in 2006 which resulted in him suffering from depression and post-traumatic stress. It was further submitted that since the commission of the offence the appellant had accessed services and support which was available to him which had resulted in his personal circumstances improving, him successfully completing detoxification from heroin and to him re-establishing his family connections. In all of the circumstances it was submitted that a starting point of 48 months was excessive. In relation to the level of discount applied it was submitted that, whilst it was accepted that the issue of discount is a matter for the discretion of the sentencer, the plea had been intimated two weeks prior to the first diet and a discount of what amounted to 1/8 was insufficient. Here the court allowed the appeal insofar as it related to the level of discount applied. In relation to the headline figure of 48 months the court did not consider that figure to be excessive having regard to the aggravating factors present, for example, the robbery of commercial premises with face masked, the threats of serious injury and the use of a knife all of which was particularly frightening for the complainer. In relation to the level of discount the court reiterated that the selection of the appropriate discount is generally a matter for the discretion of the sentencer, however, in the present case the court considered that having regard to the timing of the plea, in particular, the intimation of it to the sheriff clerk two weeks before the plea was tendered, the level of discount applied was inadequate and a discount of 25% should be deducted, resulting in the quashing of the sentence of 42 months and substitution of a sentence of 36 months discounted by 25% from 48 months.