Richard Fleming v. Her Majesty’s Advocate [2019] HCJAC 20

Note of appeal against sentence:- The appellant tendered pleas of ‘guilty’ to charges 1, 2 and 3 (two charges of housebreaking on 12 June 2017 and a contravention of section 57(1) of the Civic Government (Scotland) Act 1982) at a preliminary hearing on 7 March 2018, which pleas were not accepted by the Crown at that stage. The trial proceeded in relation to those charges and other more serious charges relating to the armed robbery of Gleneagles Hotel between 28 August and 12 September 2018. On 7 September 2018, at the close of the Crown case, the Crown accepted the previously tendered pleas of the appellant in relation to charges 1, 2 and 3 and the trial proceeded in relation to charges 8, 10 and 11 relating to the armed robbery involving the use of a pistol, a machete and hammers. The appellant was subsequently convicted of those charges. The sentencing judge sentenced the appellant to 3 years imprisonment cumulo in relation to charges 1, 2 and 3, and an extended sentence of 18 years comprising of a custodial element of 15 years and an extension period of 3 years in relation to charges 8, 10 and 11, which sentences were ordered to run consecutively with each other. The appellant appealed against the sentence imposed it being contended that the sentences were excessive. In particular, it was submitted that the sentencing judge ought to have discounted the sentence for charges 1, 2 and 3 due to the guilty pleas being tendered at the preliminary hearing and to that position being maintained throughout the trial until the pleas were finally accepted by the Crown at the close of the Crown case. Reference was made to Gemmell v HMA 2012 SCCR 176 at paragraph 45 where the court stated:- “The amount of the discount in any given case is directly related to the extent of the benefits of it that were identified in Du Plooy. Since there will always be some benefit in an early plea, if only in the administrative benefits that result from it, I find it difficult to imagine circumstances in which an early plea would not entitle the accused to at least a token discount. However, in any given case, no matter how early the plea, it may be that not all of those benefits apply.” It was further submitted that the overall effect of the sentence was excessive having regard to the particular circumstances of the offences and the personal circumstances of the appellant. Whilst it was recognised that the Gleneagles charges were serious, the firearm used in the commission of the offences was not discharged and there was no serious physical and/or psychological harm caused to the complainers. Here the court refused the appeal. The court considered that the “utilitarian value” of an early plea as envisaged in Gemmell was absent in the present case, there being no significant saving in time and to the cost of the trial and the circumstances were such that the sentencing judge was entitled to hold that there was no real utilitarian value in the pleas of guilty being tendered at the preliminary hearing, the court observing that it was in the appellant’s own hands to plead guilty to the other offences which would have given some utilitarian benefit to the pleas. In relation to the overall sentence the court considered that the sentence could not be said to be excessive having regard to the level of violence used, the value of the goods taken and the appellant’s significant schedule of previous convictions which included a sentence of 9 years imprisonment imposed in 2007 at the Central Criminal Court in London for possession of a firearm with intent, contrary to section 16 of the Firearms Act 1968.