APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lord Bonomy	[2012] HCJAC 106 Appeal No: XC94/10 OPINION OF THE COURT delivered by LORD BONOMY in NOTE OF APPEAL AGAINST SENTENCE by GERALD GEORGE DOCHERTY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Party; Unrepresented

Respondent: M Hughes, Advocate Depute; Crown Agent

20 April 2012

[1] On 19 January 2010 an extended sentence of 10 years, comprising a custodial term of 7 years and 1 month and an extension period of 2 years and 11 months, was imposed upon the appellant at the High Court in Glasgow on a charge of assault to severe injury and permanent disfigurement.

[2] The sentencing judge reported that, in dealing with the case, he proceeded upon the basis that the appellant was a man of violence who was armed with a weapon that he was prepared to use as the circumstances suited him. In the event he did use it in an unprovoked attack upon the complainer by stabbing him in the middle of the chest. Had the wound been half an inch deeper or half an inch to either side, it would have penetrated the heart.

[3] The sentencing judge further reported that the appellant has a quite atrocious record of having been convicted on about twenty-seven previous occasions including his first custodial sentence for assault in 1984, and three further convictions on indictment for crimes of assault, the last being in the High Court in August 2001 when he was convicted of assault and robbery and sentenced to a period of 8 years in prison. He was released on licence from that sentence, firstly in October 2005 and then, after recall, again in November 2008. The offence under consideration occurred on 10 August 2009 while the appellant was on bail granted on 31 July 2009.

[4] It is, therefore, unsurprising that the sentencing judge considered an extended sentence appropriate. He reported that, but for the plea of guilty, he would have imposed a custodial term of 8 years. The reduction to 7 years and 1 month represented a discount of about 12%.

[5] Leave to appeal was confined to the question of the discount on the custodial term. In support of his appeal, the appellant presented his submissions largely in writing in a document headed "Points of Appeal for the Court". Having considered carefully all that was said and written, including in particular reference to the recent case of Gemmell v HM Advocate 2011 HCJAC 129, 2012 SCCR 176, we accepted that the sentencing judge erred by restricting the discount. Since the appellant pled at the first preliminary hearing and there was nothing about the case to indicate that that plea did not result in the utilitarian benefits that generally flow from a plea tendered at that stage, a discount of the order of 25% was appropriate. We therefore quashed the extended sentence of 10 years and substituted therefore an extended sentence of 8 years 11 months comprising a custodial term of 6 years, discounted by 25% from the period of 8 years selected by the sentencing judge as a starting point, and an extension period of 2 years 11 months as in the original sentence. The extension period remained unaffected for two reasons: firstly, leave to appeal against it was not granted; and secondly, the majority of the judges in Gemmell v HM Advocate decided that generally no discount should be applied to the extension period of an extended sentence.