James Brand v. Her Majesty’s Advocate. [2019] HCJAC 25

Note of appeal against sentence:- On 7 January 2019, at a trial diet at the sheriff court, the appellant pled guilty to two charges:- (charge 1) a charge of assaulting his former partner on an occasion in 2015; and (charge 4) a charge of assaulting the same former partner relating to three occasions in 2016/17. On 6 February 2019, following the obtaining of a Criminal Justice Social Work Report, the sheriff sentenced the appellant to 4 years imprisonment and imposed a non-harassment order. The appellant appealed against the sentence imposed on the grounds it was excessive, in particular, that the sheriff erred in failing to give a sentence discount in light of the plea of guilty. It was contended on behalf of the appellant in the Note of Appeal that the plea was intimated to the Crown in advance of the hearing and the plea avoided the necessity of witnesses requiring to come to Court to give evidence including 2 child witnesses of 8 and 10 years and, whilst the plea was tendered on the first day of the jury sitting, no jurors were required to attend and no witnesses were present. The court noted here, however, that what was stated in the Note of Appeal was incorrect as, whilst the Crown were advised late on the Friday before the jury sitting that the case would resolve in a plea of guilty, efforts by the Crown to countermand the witnesses had been unsuccessful and the witnesses had in fact been in attendance at court on the first day of the sitting. The court observed that no explanation was provided at the appeal hearing as to why a statement in direct contradiction of what the sheriff stated in his report to the court was contained in the Note of Appeal. It was submitted on behalf of the appellant, however, that the sheriff ought still to have allowed a discount in that there was still a utilitarian benefit to the plea being tendered at the trial diet. It was submitted that in Gemmell v HMA 2012 JC 223 the court made clear at paragraph 43 that there will always be some benefit in an early plea, even if only in the administrative benefits that result from it. Here the court refused the appeal. Referring to Gemmell the court reiterated that the decision whether to allow a discount and if so what discount to allow is a matter for the discretion of the sentencer and that the court’s discretion to allow a discount should be exercised sparingly and only for convincing reasons. In addition, the court referred to what was said in Gemmell at paragraph 81:- “Where the sentencer has given cogent reasons either for allowing the discount in question or for declining to apply a discount at all, I consider that it is only in exceptional circumstances that this court should interfere”. Having regard to the particular circumstances of the present case the court took the view that the sentencing sheriff gave sufficient weight to all of the relevant factors including the procedural history of the case and the stage at which the plea of guilty was tendered and the limited utilitarian benefit of the plea being tendered when it was and considered that there was no basis upon which to interfere with the sheriff’s discretion in not allowing a discount.