APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
Lord McEwan
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[2007] HCJAC46
XJ580/07
XJ581/07
XJ502/07
XJ503/07
XJ504/07
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OPINION OF THE COURT
delivered by
LORD MACFADYEN
in
NOTES OF APPEAL
AGAINST SENTENCE
by
JOHN PAUL
LEONARD
Appellant;
against
PROCURATOR FISCAL, LANARK
Respondent:
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Act: Paterson, Solicitor Advocate; Gilfedder & McInnes.
Alt: Borthwick, A.D.; Crown Agent.
1 August 2007
[1] In these five
appeals the appellant, John Paul Leonard, raises one issue relating to the
sentences imposed on him by the sheriff.
That issue is whether, in considering what discount, if any, to allow
under section 196(1) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"),
the sheriff erred in taking into account conduct on the part of the appellant
subsequent to the date on which he indicated his intention to plead guilty.
[2] When the five
complaints called before the sheriff on 15 March 2007, she imposed on the appellant five
consecutive sentences the total duration of which amounted to twenty-one
months. The appellant has what the
sheriff rightly described as a "prodigious" record of previous convictions. In the appeals it was accepted that the
sheriff had been correct to conclude that only custodial sentences were
appropriate, and had been entitled to order that the five sentences which she
imposed be served consecutively.
[3] In appeal
number XJ580/07 the charge to which the appellant pled guilty was one of theft
by shoplifting, aggravated by having been committed while the appellant was
subject to two bail orders. The offence
occurred on 16 February 2006.
The appellant appeared from custody the following day and pled not
guilty. Intermediate and trial diets were
set down for 23 February and 7 March 2006 respectively. The appellant pled guilty at the intermediate
diet. After sundry procedure, which we
shall describe in due course, the appellant was eventually sentenced on 15
March 2007. The sentence was five months imprisonment, of
which one month was attributed in terms of section 27(3) and (6) of the 1995
Act to the bail aggravations. The
sheriff took into account in terms of section 210 of the 1995 Act the time which
the appellant had spent in custody on remand, and that aspect of the selection
of the sentence is not challenged. For
reasons which she stated, the sheriff applied no discount under section 196(1)
in respect of the appellant's having pled guilty at the intermediate diet. Mr Paterson, who appeared for the appellant,
submitted that a discount of between 20% and 25% on that account would have
been appropriate, and should have been applied before the deduction was made in
respect of time spent in custody on remand.
[4] In appeal
number XJ581/07 the appellant pled guilty to three charges of theft by
shoplifting, each aggravated by having been committed when the appellant was
subject to a bail order. The offences
occurred on 25 February, 6 March and 10 March 2006.
The appellant pled not guilty at a continued pleading diet on 15
June 2006,
intermediate and trial diets were fixed for 24 August and 6
September 2006, and the appellant pled guilty on the latter date. Again sundry procedure followed, and the
appellant was eventually sentenced on 15 March 2007.
The sheriff imposed a cumulo sentence
of six months imprisonment, of which one month was attributed to the bail
aggravations. Again the sheriff in
selecting that sentence made a deduction in respect of time spent in custody on
remand which is not subject to challenge.
Again the sheriff applied no discount under section 196(1). Mr Paterson submitted that, despite the plea
having been tendered only at the trial diet, a small discount should have been
allowed. He suggested 10%.
[5] In appeal
number XJ582/07 the appellant pled guilty to a charge of theft by opening a
lockfast motor vehicle. The offence
occurred on 5 October 2005.
The appellant pled guilty when the case first called on 24
August 2006. After sundry procedure he was sentenced on 15
March 2007
to four months imprisonment. In
selecting that sentence the sheriff made an undisputed deduction of one month
in respect of time spent in custody on remand.
Again no discount was applied under section 196(1). Mr Paterson submitted that a discount of one
third should have been allowed.
[6] In appeal
number XJ583/07 the appellant pled guilty to a failure to appear at Lanark Sheriff Court on 6 July 2006 in contravention of section 150(8)
of the 1995 Act. He pled guilty at the
first calling of the case on 1 August 2006.
On 15 March 2007 he was sentenced to one month's
imprisonment. Again an undisputed
deduction of one month was made in selecting that sentence to reflect time
spent in custody on remand. Again no
section 196(1) discount was allowed. Mr
Paterson submitted that the discount should have been one third.
[7] In appeal
number XJ584/07 the appellant pled guilty to theft by shoplifting, aggravated
by having been committed while the appellant was subject to two bail
orders. The date of the offence was 27
March 2006. At an intermediate diet on 6 April the
appellant pled guilty. On 15
March 2007
he was sentenced to five months imprisonment, two months of which was
attributed to the bail aggravations. In
selecting that sentence the sheriff made an undisputed deduction of one month
in respect of time spent in custody on remand.
Once more no section 196(1) discount was allowed. Mr Paterson submitted that a discount of 20%
or 25% should have been allowed.
[8] Section
196(1) of the 1995 Act provides as follows:
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"In determining what sentence to pass on, or what other
disposal or order to make in relation to, an offender who has pled guilty to
an offence, the court may take into account ―
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(a)
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the stage in the proceedings for the offence at which the
offender indicated his intention to plead guilty, and
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(b)
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the circumstances in which that indication was given.
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[9] In Du Plooy and Others v H.M. Advocate 2003 SCCR 640, Lord
Justice General Cullen, delivering the opinion of the court, said:
"[14]
In our view section 196(1) implies that, in determining the appropriate
punishment of the accused, consideration is to be given to not only the
'utilitarian value' of the plea of guilty but also to the implications of the
accused's acceptance of guilt. The
relevance of the benefits to the administration of justice is demonstrated by
the fact that the court is to consider the stage at which the accused indicated
his or her intention to plead guilty.
The earlier the stage the greater the benefit to the system is likely to
be. ...
[16]
In the light of these considerations we are of the view that section
196(1) enables the sentencer to make allowance, according to the circumstances
of the case, for the fact that the tendering of a plea of guilty is likely to
save public money and court time, and in general avoid inconvenience to
witnesses ...".
[10] The sheriff's
reasons for refusing to discount the sentences imposed on the appellant on
account of the stage of proceedings at which he indicated his intention to
plead guilty are to be found in her account of the procedure which followed the
tendering of the pleas. In short the
sheriff took the view that the utilitarian benefit of the pleas had been
cancelled out by the appellant's failure to co-operate by attending court diets
and other appointments. The following
summary of the appellant's behaviour is taken from the sheriff's report in
appeal number XJ580/07.
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(1)
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Following the tendering of the plea in that case, the case
was continued for social enquiry, community service, drug treatment and
testing assessment and restriction of liberty assessment reports. On 12 April 2006 letters were produced indicating
that the appellant had failed without explanation to attend appointments
intimated to him.
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(2)
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The appellant failed to co-operate with the preparation of
a second stage DTTO assessment ordered on 25 May
2006.
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(3)
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The appellant failed to appear when the case called on 6
July 2006.
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(4)
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The appellant again failed to appear when the case called
on 26 October 2006.
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(5)
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Further reports were ordered on 7 December
2006. The appellant again failed to co-operate
with the preparation of a DTTO assessment.
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(6)
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On 11 January 2007 the appellant failed to appear
when the case called in court.
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(7)
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On 25 January 2007 the appellant was released on
supervised bail, but failed to comply with the requirements of the supervised
bail scheme and to attend appointments in connection with the DTTO
assessment.
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(8)
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The appellant again failed to attend court on 15 February 2007.
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[11] In the light
of that history, the sheriff expressed the following view:
"Whilst I acknowledge that an early
plea at intermediate diet stage would normally merit a discount in sentence to
reflect the utilitarian benefit to the efficient administration of justice, I
took the view in this case that any such benefit had been more than offset by
the appellant's repeated failure to co-operate with and comply with court
orders and appearances. At no time in
this lengthy history of attempts by the court to explore the appellant's
suitability for drug treatment orders in response to submissions made on the
appellant's behalf, did the appellant co-operate on a voluntary basis. At no time did he appear as required, unless
his attendance was guaranteed by a previous remand. As a result, four warrants together with
approximately 13 additional appearances in court were necessary to secure an
eventual disposal and thereby criminal justice social workers, medical and
addiction practitioners, police and court services incurred additional pressure
upon resources. Despite this, on each
appearance the request was again made on his behalf to continue the
investigation for a DTTO. He was eventually
sentenced almost one year after his plea of guilty and that delay is mostly
attributable to his actings. In my view,
as expressed to the appellant at the point of sentence, he had lost the right
to any discount."
[12] Not all of the
history set out in paragraph [10] above is relevant to every appeal. In her report in each case the sheriff is
careful to set out the lack of co-operation relevant to the particular
case. In each report, however, she sets
out a version of the view quoted in paragraph [11] above, adapted to the
circumstances of the individual case.
The conclusion is the same in each case, namely that the appellant by
his lack of co-operation had cancelled out the utilitarian benefit that might
have flowed from his plea of guilty.
[13] Mr Paterson's
submission was that the sheriff had erred in taking and giving effect to the
view quoted in paragraph [11]. He
pointed out that failure to appear, without reasonable excuse, at a duly
notified diet in summary proceedings is an offence under section 150(8) of the
1995 Act. In addition, failure to
co-operate with the preparation of reports could be treated as a breach of bail
conditions or as a contempt of court. He
submitted that, if none of these courses were followed, it was inappropriate
for the court to deprive the appellant of the benefit of section 196(1) by reference
to his behaviour after the plea had been tendered. It was unfair to penalise the appellant for
non-co-operation without proper investigation of the circumstances.
[14] Mr Paterson
finally submitted that the adjustment to the appellant's sentences which he
sought might be done on a broad basis without entering into detailed arithmetic
in relation to each case. He suggested
that an average discount under section 196(1) of 25% should be applied to the
aggregate starting point of the sentences, that the allowance for time on
remand should then be deducted, and that in the result, the aggregate of the
five sentences should be reduced to between 13 and 14 months.
[15] If it were not
for the reason given by the sheriff for refusing a discount under section
196(1), we would be inclined to accept in general terms Mr Paterson's
submission as to the discount appropriate in each case. For pleas tendered at first appearance, a
discount of one third would in our view be appropriate; for pleas tendered at
an intermediate diet, we would regard a discount of 20% as appropriate; and for
the plea tendered at the trial diet, a discount of no more than 10% would be
appropriate. We also consider that there
may be merit in Mr Paterson's suggestion (recorded in paragraph [14] above)
that a broad approach would be better than intricate arithmetic. However, that does not arise if the sheriff
was entitled to decline to give a section 196(1) discount on account of the
appellant's lack of co-operation.
[16] It is, of
course, correct that, as Mr Paterson submitted, the appellant's failures to
appear might have been made the subject of separate proceedings. His failure to co-operate with the
preparation of reports might have constituted a breach of his bail
conditions. Proceedings for contempt of
court are also a possibility. But,
except for the complaint that gives rise to appeal number XJ583/07, no such
proceedings have been taken. The issues
that might arise if such proceedings were taken and resulted in substantive
punishment and, in addition, the same lack of co-operation were treated as a
reason for refusing a section 196(1) discount, do not arise in the present
cases. There is, in our view, no merit
in the submission that the availability of other ways of dealing with the lack
of co-operation makes it automatically inappropriate to take it into account in
the way the sheriff did. Nor is there
any merit in the submission that it is unfair to take the lack of co-operation
into account as the sheriff did without full exploration of the circumstances
of the lack of co-operation. There may
be cases where, when an exculpatory explanation for failure to appear, or
failure to attend for interview, is put forward, it would be wrong for the
sheriff to ignore the explanation and treat the failures as automatically
eliding the utilitarian benefit of the plea.
It is, no doubt, a matter of circumstance and degree. There does not appear, however, in the present
case to be any exculpatory explanation for the appellant's lack of co-operation. No such explanation appears to have been
tendered before the sheriff. None was
tendered to us. The sheriff was
therefore, in our view, entitled to proceed on the view that the appellant was
wilfully unco-operative.
[17] As Du Plooy makes clear, one important
justification for allowing a discount under section 196(1) is the utilitarian
benefit that an early plea brings. That
benefit comes typically in the form of saving of public money, saving of court
time and the avoidance of inconvenience to witnesses and others involved in the
process of bringing the offender to justice.
It would, in our view, be quite unrealistic to allow an offender to take
the benefit of a discount earned on the basis that his plea brought such
benefit, while simultaneously ignoring the fact that his subsequent
unco-operative conduct resulted in substantial additional public expense,
additional abortive court hearings and waste of the time of court staff, social
workers, and medical and other personnel.
Whether the disbenefit of the unco-operative conduct completely
outweighs, or merely reduces, the utilitarian benefit of the plea is a matter
of circumstance and degree. In the
circumstances of the present case, however, we are satisfied that the sheriff
was fully entitled to regard the disbenefit as wholly eliding the benefit. Appeal number XJ583/07 raises no special
issue, because it was the lack of co-operation after the plea of guilty to the
charge under section 150(8) that led to the elision of the utilitarian benefit
of that plea.
[18] The appeals
are accordingly refused.
