APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Brailsford Lord Marnoch	2012 HCJAC 39 XC465/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by EDMOND ECCLES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: D Taylor, Solicitor Advocate; Gilfedder McInnes

Respondent: Carmichael AD; Crown Agent

7 March 2012

[1] On 6 June 2011, at a continued first diet at Dundee Sheriff Court, the appellant pled guilty to two charges libelled as taking place on 23 February 2011 at Lorimer Street, Dundee. The charges were in the following terms:

"(2) ....whilst in possession of a knife demand from [IF] his wallet ... with intent to rob him.

(3) ....conduct yourself in a disorderly manner, follow [SG] and [KG]... to their car, stand at the driver's door pointing at [SG] and kick the car as it was being driven away and commit a breach of the peace".

The offences were committed when the appellant was the subject of two recent bail orders from Alloa Sheriff Court.

[2] On 27 June the sheriff sentenced the appellant to 29 months imprisonment (discounted from 33) on charge (2) and 18 months (discounted from 21) on charge (3). The sentences were made consecutive to each other and, in respect of both, 3 months was attributable to the bail aggravation. In addition the sheriff attached a 12 month supervised release order. The sheriff explains that, in calculting the figures for a discount, he had in mind what he referred to as a "standard" 25% discount for a plea at a first diet. However, he interpreted certain remarks in Du Plooy v HM Advocate 2003 SLT 1237 as meaning that he need only apply, or could only apply, a discount to that part of the sentence which was not attributable to the protection of the public. An elaboration calculation thereafter followed.

[3] The circumstances of the offences revealed that the complainer [SG] on charge (3) had observed the appellant going in and out of closes in Lorimer Street, which is a residential area in the city centre, and pulling a hood up when out in the open. This was in the mid-afternoon. At about this time the appellant was seen to encounter [IF] who was a young man just making his way home from work. The appellant committed the offence as libelled and the complainer ran off before anything more serious ensued. By this time the complainers on charge (3) had called the police. Subsequent to that, [SG] had gone out to her car and had been confronted by the appellant in an intimidating manner as libelled.

[4] It was initially contended, under the first ground of appeal, that the sentences should have been concurrent rather than consecutive. However, it was accepted, as it was bound to be, that, having regard to the time gap between the two offences and the different nature of the offences and the complainers, the sheriff had been entitled to make the sentences consecutive.

[5] Secondly, and in the alternative, it was submitted that, when the two sentences were looked at together, their cumulative effect was excessive, particularly having regard to that imposed for the breach of the peace. Finally, in terms of the discount, in light of Gemmell v HM Advocate [2011] HCJAC 129, it was submitted that the sheriff's approach on discount could not be sustained.

[6] In relation to the cumulative effect of the sentences, the Court agrees that the effect was excessive. It will reduce the sentence on charge (3) to one of 12 months. Following the approach of the Court in Gemmell (supra) it will then apply a 25% discount to each of the two sentences. Such a discount will reduce the sentence on charge (2) to 25 months and on charge (3) to 9 months.

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