Scott Daniel Ross v. Her Majesty’s Advocate [2015] HCJAC 38

Note of appeal against sentence:- On 28 January 2015, at Inverness Sheriff Court, the appellant pled guilty on indictment to two charges, namely:- (1) the possession of a knife contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995; and (2) assaulting a police officer by pushing her to the ground to her injury. Thereafter, the appellant was sentenced to 1 year’s imprisonment in respect of the knife charge and 23 weeks imprisonment in relation to the assault charge. It was advanced on the appellant’s behalf during the course of a plea in mitigation that the appellant and his friends had been invited to a flat and when they had entered the block of flats they had encountered a neighbour who was holding a knife and behaving in an aggressive fashion towards the appellant and his friends. It was stated on the appellant’s behalf that the appellant had taken the knife from the neighbour before continuing upstairs where he met the police. Thereafter it was said that the appellant panicked and ran off when the knife had been found by the police. The sheriff stated that he was not prepared to accept the account given in mitigation ex parte and the court directed that evidence be led to support the plea in mitigation. The sheriff reports that what was said in mitigation, although not contradicted by the Crown, was not agreed with them either and they were “agnostic” on the point. Thereafter a proof in mitigation was held during the course of which evidence was led on behalf of the appellant which supported the contention advanced, including evidence from the neighbor who had been in possession of the knife originally. At the conclusion of the proof the sentencing sheriff rejected the explanation for 3 reasons:- (1) it had not been given at the time and the sheriff would have expected the appellant to have informed the police; (2) there was a disparity about the degree to which the appellant and the neighbour knew each other; and (3) there was evidence that the neighbour’s knife was different from that recovered from the appellant at the scene. Here it was submitted on behalf of the appellant that the sheriff had erred in looking behind the plea which had been discussed and agreed between the appellant’s agent and the procurator fiscal depute in advance of the plea being tendered. It was further submitted that the evidence at the proof in mitigation ought to have been disregarded there being no inconsistency or dispute between the defence and Crown positions. Here the court refused the appeal. It was noted that in McCartney v HMA 1997 SCCR 644 Lord Sutherland stated at page 646:- “It may be, however, that the court itself ex proprio motu does not feel that it can accept what is said in the ex parte statement in mitigation and, if that be the position, that should be made clear to the defence in order that the defence may seek an opportunity of having a proof in mitigation.” The court stated here that the sheriff was entitled to ask for evidence in support of the position advanced rather than leave his explanation out of account when sentencing. Simply because there is no direct contradiction by the Crown does not mean that a particular defence narrative should be accepted as fact and in the present case the sheriff’s decision to call for evidence after the appellant’s account was not accepted was a reasonable one.