APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lady Dorrian	2011 HCJAC92 XC279/11 OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST SENTENCE by MARK DEFELICE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: D Taylor, Solicitor Advocate; Paterson Bell, Edinburgh

Respondent: M Hughes, A.D.; Crown Agent

18 August 2011

[1] The appellant pled guilty to two charges, namely uttering threats contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, and assaulting his partner by stabbing her with a knife and punching and kicking her to the head and body to her injury and permanent disfigurement. These pleas were tendered in terms of an indictment under section 76 of the Criminal Procedure (Scotland) Act 1995.

[2] The sheriff selected as a starting point a sentence of 5 years and determined that a discount of 20% was appropriate in respect of the early plea of guilty. He ordered the sentence to be served consecutively to a sentence of 12 months imposed on 11 February 2011 in respect of another charge of assault. The earliest date of release from that sentence is 6 October 2011.

[3] In three grounds of appeal the appellant challenges the starting point as excessive, the cumulative effect of the sentences as excessive, and the discount as inadequate.

[4] The sheriff has highlighted the terrifying nature of the ordeal to which the appellant exposed his partner, in circumstances which were extremely frightening for the whole family. He slashed his partner on the arm leaving a permanent scar, kicked her on the head and body leaving her with severe bruising, and threatened to kill her as well as himself. The children could be heard screaming for help. The sheriff has also highlighted the appellant's appalling record. He has convictions which include no fewer than six with a domestic element, five of which attracted custodial sentences (one following a breach of probation). He also has four convictions under section 47 and 49 of the Criminal Law (Consolidation) (Scotland) Act involving the possession of weapons. He is described by the sheriff as a man given to violence in the home and the carrying and use of bladed weapons. However, it has to be noted, as was pointed out by Mr Taylor today, that he has no previous convictions for actual assault.

[5] We deal first of all with the starting point selected by the sheriff for assessing the sentence to be ultimately imposed. Having regard to the various factors which we have already set out, particularly the gravity of the offences in combination and the appellant's record, it cannot be said that the starting point of 5 years selected was excessive. We accordingly reject that ground of appeal.

[6] We also do not consider that there is any basis on which it would be appropriate for us to interfere with the decision to make the sentence consecutive to the sentence of 20 months. That sentence was imposed for an assault committed after the offences before us. The sheriff in this case was concerned with entirely separate offences and quite rightly marked their commission by the imposition of an appropriate sentence to be served on completion of the earlier sentence. The impact of that on the appellant is a matter for which he must accept full responsibility.

[7] So far as the third ground relating to discount is concerned, we note that it has become fairly standard practice for courts to discount sentences by roughly one third where a plea is tendered in terms of section 76 of the Criminal Procedure (Scotland) Act 1995. In this case the sheriff gave two reasons for deciding to modify that discount to 20%. In the first place he considered that the utilitarian benefit to the justice system of this particular plea was moderate, since it was not intimated until some five months after the appellant's first appearance and most of the work in relation to the case would have been done by then. His second reason was that he was concerned to provide protection to the public, in particular the appellant's partner, from his conduct, and in so far as the sentence related to public protection it was not appropriate to discount it. Mr Taylor made two submissions in relation to these matters. In the first place he narrated in detail the history of the communications between the appellant and his agents about the two separate cases in respect of which he was sentenced to 20 months and then 4 years imprisonment. He indicated that there was some delay in obtaining information in relation to today's matter which in turn resulted in delay in the decision to plead guilty being taken. We are not impressed by that submission. In so far as any element alleged against the appellant was controversial, it was open to him to tender a section 76 letter at an early stage indicating a willingness to plead guilty to the matters which he accepted and to plead not guilty to those he did not. So far as the sheriff's other reason is concerned, Mr Taylor submitted that there was an element of double accounting involved, since the sheriff inevitably took account of the protection of the public in selecting the starting point of 5 years. We recognise that. On the other hand, what the sheriff did in this case was to reduce the discount from one third to one fifth rather than wipe it out completely. In all the circumstances we consider that the decision to do that was a matter within his discretion with which it is not appropriate for us to interfere.

[8] For these various reasons, this appeal is refused.

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