APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Clarke Lady Cosgrove	[2010] HCJAC 17 Appeal No: XC629/08 XC631/08 XC125/09 OPINION OF THE COURT delivered by LORD OSBORNE in NOTE OF APPEAL AGAINST SENTENCE by (1) MARK MARTIN (2) JAMES GEMMELL (3) PAUL ROBERTSON Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

1^stAppellant: Taylor, Solicitor Advocate; Paterson Bell, Edinburgh

2^nd Appellant: Miss A Ogg, Solicitor Advocate; Paterson Bell, Edinburgh

3^rd Appellant: Miss M McKenzie; Paterson Bell, Edinburgh

Respondent: Bowie, AD; Crown Agent

2 February 2010

The background circumstances

[1] The first-named appellant, Mark Martin, and his co-accused, the second-named appellant, James Gemmell, appeared in the High Court at Glasgow on 25 September 2008. Each tendered pleas of guilty to the charges which they faced, subject to various deletions, which were accepted by the Crown. The consequence was that the charges to which the pleas of guilty were accepted were in the following terms:

"(1) On 29 May 2008 you did break into the flat occupied by Andrew Rankin at Flat 0/2, 21 Kelly Street, Greenock with intent to steal;...

(2) On May 2008 at Flat 0/2, 21 Kelly Street, Greenock you did assault Andrew Rankin, residing there and did seize him by the arms whereby he did fall to the ground, present a knife at him, repeatedly demand money from him, bind his wrists and ankles with belts and a shoe lace, search him, demand his PIN number, repeatedly threaten him with violence and rob him of a wallet and contents, a mobile telephone, a packet of cigarettes and two cigarette lighters, all to his injury."

The charges against the first-named appellant also narrated that the offences had been committed while he was subject to bail orders dated 22 and 31 March, 28 April and 8 May 2008. Discounted sentences of six years imprisonment were imposed on both appellants. The sentencing judge narrates that, but for their guilty pleas, he would have imposed a sentence of seven years imprisonment. He ordered these sentences to run from 2 June 2008.

[2] The third-named appellant, Paul Robertson, appeared in Kilmarnock Sheriff Court on 19 January 2009, when he tendered a plea of guilty to the charge which he faced, under certain deletions which were accepted by the Crown. The charge to which he pled guilty was in the following terms:

"On 13 October 2008 at 20 Scott Road, Irvine you PAUL ROBERTSON did assault Stacey Woodrup .... drag her about by the hair, repeatedly slap her on the face, seize her by the throat and compress her throat, all to her injury."

The sheriff imposed a sentence of 20 months imprisonment, discounted from 24 months imprisonment, together with a supervised release order of ten months duration. No issue arises in relation to the supervised release order. All three appellants have appealed against the sentences imposed upon them.

[3] The first-named appellant appeals against his sentence on several grounds. For present purposes it is unnecessary to note all of those grounds. However, in his Note of Appeal, the following contention is to be found:

"(ii) It is respectfully submitted that a more generous discount should have been applied to reflect the stage in the proceedings at which the plea of guilty was tendered by the appellant. The plea was recorded at the first preliminary hearing, and a discount of 25% is commonly applied by the High Court when a plea is tendered at that stage. The learned judge indicated that a discount of approximately 15% had been applied to reflect the fact that part of the sentence was directed towards the protection of the public. Had a discount of 25% been applied to a sentence of seven years (84 months) a sentence of 63 months would have resulted, of which the appellant would have been liable to have served 42 months. By applying a discount of approximately 15% to such a sentence, a sentence of 72 months has resulted, of which the appellant will be liable to serve 48 months. It is accordingly submitted, with respect, that only a modest degree of extra protection of the public will result from the approach taken by the learned judge. Further, it is respectfully submitted that a formal risk assessment should have been called for in the event that the discount was to be restricted by reference to the need for the public to be protected from the appellant."

[4] The second-named appellant, in his Note of Appeal, also advances several contentions. For present purposes it is necessary to note only one of these, which is in the following terms:

"2. The learned sentencing judge afforded the appellant a discount of 15%, limiting the discount on the basis of public protection.

(a) it is submitted that the sentencing judged erred in limiting the discount on the basis of public protection having regard to - (i) the starting sentence selected. This contained an element of deterrence and an element of public protection due to its custodial nature. No maximum sentence was prescribed to limit the starting sentence that could be selected. Restricting the discount penalised the appellant twice. (ii) The appellant's record contained no previous convictions for assault and robbery. His previous convictions were, apart from one conviction, all at summary level. It is submitted no element of public protection was required in the sentence. Esto it was required the period selected or the reduction in discounts selected in respect of public protection was excessive having regard to the appellant's previous convictions and the nature of them.

(b) It is submitted that insufficient discount was afforded to the appellant having regard to the pleas of guilty and the stage at which they were tendered. The pleas were tendered at the first preliminary hearing. The appellant had offered to plead guilty by section 76 letter in July 2008. That offer had been refused. It is submitted that the learned sentencing judge gave insufficient weight to the utilitarian value of the pleas and to the fact that the complainer was spared the trauma and distress of giving evidence in court."

[5] The third-named appellant, in his Note of Appeal advances several contentions. In particular, it is contended that:

"It is respectfully submitted that the four months discount afforded to the appellant to reflect his plea is inadequate and inappropriate standing the procedural background to this case."

The Note of Appeal then narrates in detail the procedural background, which involved this appellant tendering a section 76 letter at an early stage, its rejection by the Crown, and the ultimate acceptance by the Crown of the plea previously offered by this appellant. The Note of Appeal concludes as follows:

"Against that background of consistent admission from an early stage, the effort to plead by way of section 76 procedure, and the tendering at a first diet of the plea ultimately accepted at the trial diet, it is submitted that the sixth discount allowed was inadequate."

[6] In his report to this Court relating to the sentencing of the third named appellant, at page 8, the sheriff says this:

"Having listened to the tape of my sentencing statement on 4 February, I note that I placed great significance on the need to protect the public from the appellant, given this offence as set against his serious record of offending, particularly on indictment. My selection of a discount of approximately one-sixth was influenced by that need for public protection as also there being no record of the plea ultimately tendered, being so recorded on 5 January in the minutes of proceedings of the court, taken with the final indication of the plea of guilty being tendered at the trial diet on 19 January 2009. It will be for your Lordships to determine whether I have erred in the exercise of the discretion afforded to lower courts in terms of Du Plooy v HM Advocate 2003 S.C.C.R. 640 as regards the reduction in sentence afforded to the appellant."

[7] When the appeals of the first and second-named appellants first came before a sentencing appeal court, constituted by two judges, on 26 March 2009, the Court, on the motion of counsel for the appellants, continued the appeals to a date to be fixed to be heard before three judges

"in respect that the decision of two judges in the case of Jackson v HM Advocate 2008 S.C.C.R. 733 may require to be reviewed on the question of 'double counting' referred to in the written submissions; further the Court advised that the Crown should be prepared to address the Court on questions of principle at the said hearing."

When the third-named appellant's case first came before a sentencing appeal court, constituted by two judges, on 19 May 2009, the Court, having heard counsel for the appellant and the Advocate depute, continued that appeal to a date to be afterwards fixed to be heard along with the cases of James Gemmell and Mark Martin before a bench of three judges.

[8] It was therefore for the foregoing reasons that these three appeals came before us together on 2 February 2010. On that occasion, counsel for the third-named appellant intimated to us that her motion was that the third-named appellant's appeal should be remitted to a court of five judges. She drew attention to the fact that, in the case of the third-named appellant, the sheriff had explained the justification for the course which he took in sentencing her client by making reference to the need for public protection. The sheriff had made it clear that he had had regard to the need for public protection against the activities of the third-named appellant in selecting a discount in respect of his plea of guilty which was smaller than that which might reasonably have been expected to have been accorded. She went on to explain that on 22 October 2009 a sentence appeal court, constituted by three judges, had remitted the appeal of Euan McWilliam Ross v Procurator Fiscal, Aberdeen
[2009] HCJAC 82 to a court of five judges. The justification for that course was seen by the Court on that occasion to lie in the fact that there were conflicting authorities in relation to whether any discount should be accorded in respect of periods of disqualification from driving and in respect of penalty points imposed following road traffic offences. The conflicting authorities were Stuart v Griffiths 2005 S.C.C.R. 291 and Rennie v Frame 2005 S.C.C.R. 608, which had been followed in Neilson v Procurator Fiscal, Elgin (unreported) 20 May 2009 (XJ184/09). On one view, disqualification from driving had, as its purpose, the protection of the public. Counsel contended that, if we were persuaded that the present cases should be remitted to a court of five judges, they should be heard by the same court so composed as the case of Euan McWilliam Ross v Procurator Fiscal, Aberdeen. Counsel went on to explain that there was serious confusion relating to these matters, particularly in the sheriff court where most road traffic prosecutions were heard. She recognised that it might be possible to distinguish cases concerned with periods of disqualification from driving and penalty points from cases where imprisonment was imposed in respect of offences unrelated to road traffic. However, she contended that the same fundamental principle was in operation in these different kinds of case.

[9] The solicitor for the first-named appellant explained that he had not intended to make a motion that his client's appeal should be remitted to a court of five judges. He was entirely neutral regarding that possibility. However, he acknowledged that there might be some level of confusion regarding the part that might legitimately be played by the need for public protection in relation to the identification of appropriate discounts and starting points in sentencing. The solicitor for the second named appellant associated herself with the position taken up by counsel for the third-named appellant.

[10] The Advocate depute pointed out that Jackson v HM Advocate was, of course, a decision by a bench of two judges, which could be over-ruled in this Court. However, he recognised that there were some uncertainties in relation to the extent to which the need for public protection might have an impact upon the identification of an appropriate discount and starting point in the sentencing process. In that connection he drew our attention to Du Plooy v HM Advocate 2003 S.C.C.R. 641, particularly what was said in paragraph [19]. The Advocate depute went on to draw our attention to Coyle v HM Advocate 2007 SCCR 479, a case in which the relevance of previous convictions in relation to the calculation of a discount in respect of a plea of guilty was considered. That was a decision by a sentencing appeal court constituted by two judges. In that case the sheriff had restricted the discount accorded to the appellant because of the extent of his analogous previous convictions. It had been contended that, in so doing the sheriff had erred by taking the appellant's record into account twice over, first, in selecting the starting point of the sentence, and, second, in restricting the discount. The Court held that, while there was, at first sight, some merit in the submission, it was not well-founded. The record of the appellant was relevant to the exercise of the sheriff's discretion and the sheriff had been entitled to restrict the discount as he had done.

Our conclusions

[11] In the light of the foregoing circumstances and contentions, we have come to the conclusion that the proper course to take is for these three appeals to be remitted to a court of five judges for consideration along with the appeal of Euan McWilliam Ross v Procurator Fiscal, Aberdeen. While Jackson v HM Advocate, which was seen as the reason why these appeals were remitted to us was a decision by two judges, as was Coyle v HM Advocate, the situation is complicated by what was said in Du Plooy v HM Advocate in paragraph [19]. There Lord Justice General Cullen, as he then was, said this:

"[19] What we have said in the last paragraph should be understood as subject to the following. Earlier in this opinion we indicated that the 'utilitarian value' of the plea of guilty and the implications of the accused's acceptance of his guilt should be taken into consideration in determining the appropriate punishment of the accused. Thus they should be considered along with matters relevant to punishment, such as the seriousness of the offence and the accused's previous convictions. However, the sentence may also contain an element which is designed to protect the public against the accused's re-offending. In our view, the 'utilitarian value' of the plea of guilty and the accused's acceptance of his guilt should not be allowed to detract from the need to protect the public. Accordingly, where a sentencer imposes an extended sentence under section 210A of the 1995 Act, ie, where the sentencer takes the view that the period for which the offender would be subject to a licence 'would not be adequate for the purpose of protecting the public from serious harm from the offender,' no allowance in respect of a plea of guilty should be made in determining the length of the extension period. Likewise, where the sentencer imposes a determinate sentence which contains an element which is designed to protect the public from the accused's re-offending, the sentence should not, to that extent, be subject to any allowance in respect of the plea of guilty. Comparison may be made with the fixing of a punishment part of a life sentence under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended, which provides for the taking into account of the matters mentioned in paragraphs (a) and (b) of section 196(1)."

[12] In that passage, the court in Du Plooy v HM Advocate, which was one constituted by three judges, took the view that, where a sentence contained an element designed to protect the public from the accused's re-offending, the sentence should not, to that extent, be subject to any allowance in respect of the plea of guilty. In view of those observations, one can readily understand why the sentencing judge in Jackson v HM Advocate took the course that he did, which however was disapproved on appeal. In that case, the sentencing judge, before whom the appellant had pleaded guilty to a charge of culpable homicide, selected as his starting point for sentencing a period of 16 years imprisonment. Thereafter, applying those dicta in the case of Du Plooy v HM Advocate, as he understood them, he selected a period of 7 years out of that 16 to reflect the need for the sentence to provide protection for the public. Thereafter, again apparently following Du Plooy, he deducted that period from the total of 16 years before applying any discount. A discount was necessary having regard to the fact that the appellant had pled guilty at the earliest possible stage and had never challenged his guilt. He therefore allowed a discount in respect of the period to which he was applying it of one-third. In the result, the sentence imposed by the sentencing judge was 13 years. Although constituted only by two judges, the court in Jackson v HM Advocate decided that there was an element of public protection in the sentence starting point of 16 years, which was not excessive, but that the approach followed by the sentencing judge had not been appropriate. It decided that the appropriate approach was to apply the discount to the whole sentence, but at a lower rate than that which would normally have been appropriate in respect of a plea at the earliest possible stage.

[13] Having regard to this aspect of the background, we consider that it would not be appropriate for us to review the decision in Jackson v HM Advocate, since, on one view, it appears that it may have been based on the guidance given in the passage from Du Plooy v HM Advocate, which we have quoted. Plainly we are not in a position to review the soundness of the approach desiderated in the latter case. Having regard to that and to the level of uncertainty that appears now to exist in the minds of sentencers and practitioners in relation to the matters concerned, we consider that it is appropriate to make the remit which we have done.