APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Smith Lord McEwan	[2014] HCJAC 5 XC546/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEAL AGAINST SENTENCE   by   STEVEN KINDNESS   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

 

Appellant: Mackenzie; John Pryde and Co, Edinburgh

Respondent: Cleland; Crown agent

 

11 December 2013

 

[1] Steven Kindness pled guilty, at a preliminary hearing at Glasgow High Court, on 2 September 2013, to a charge of assault to severe injury, permanent disfigurement and danger of life, having previously evinced malice and ill‑will towards the complainer. The assault occurred on 4 May 2013. It was an assault by punching, kicking, repeatedly stabbing and striking with a knife causing seven significant stab wounds and it took place after the appellant and his co‑accused had entered the complainer's home uninvited.

[2] On the appellant's behalf, Ms Mackenzie, both in the written case and argument and in oral argument today, took no issue with the headline sentence adopted by the sentencing judge of eight years. She was wise to do so; this was an appalling attack.

[3] The appellant was interviewed by the police under caution the day after the assault, answering "no comment" to questions and making no admissions. He was detained under section 14 of the 1995 Act the following day and interviewed again. Once more he answered "no comment" to questions and made no admissions. He appeared on petition on 7 and 15 May. On 27 June a section 76 letter was received from the appellant's solicitor. The plea offered was not acceptable. That offer was renewed on 13 August 2013, but not accepted because the co‑accused had not indicated a willingness to plead guilty on the same terms and on the basis of the same narrative. On 26 August the co‑accused indicated that he was willing to do so, however the plea offered on 27 June and repeated did not include the aggravation of the assault being to the permanent disfigurement of the complainer. As we have already observed, the charge to which the appellant ultimately pled guilty did include that aggravation.

[4] The sentencing judge explains in his report that the severity of this attack was such that once the appellant's history of analogous offending was taken into account, had he not pled guilty, he would have sentenced him to a term of imprisonment of eight years. In the light of his plea, he reduced that sentence to six years and six months. That is he afforded him a discount of around 20%. He gave us his reasons for restricting the discount to that amount as being: first, that seven weeks had elapsed between the appellant first appearing on petition and the intimation of his willingness to plead guilty by section 76 letter; second, during that period the Crown had had to continue to prepare the case; third, this was a very serious assault and he was anxious to avoid any disproportionate dilution of the headline sentence; fourth, he considered the discount selected to be of the same order as in the case of Murray [2013] SCCR 88; fifth, he recognised that there had been a saving of court time - Crown witnesses did not have to give evidence - and there was delay caused by the co‑accused for which the appellant was not responsible.

[5] The sentencing judge mentioned, when passing sentence, that the appellant had not admitted his guilt at interview. He did so, he explains, to place the timing of the plea in its proper context. Ms Mackenzie submitted that the sentencing judge had misdirected himself in taking account of the appellant's failure to admit his involvement when interviewed. He was, she said, quite entitled, on legal advice, to give the answers that he did. We observe that that ground of appeal appears to be a misapprehension, as the trial judge explains in his report. He mentions the matter solely for the purpose of setting the timing of the plea in context, not because he considered it was relevant to discount.

[6] Ms Mackenzie went on to submit that this case differed from the case of Murray; the comparison between the two cases was not apt. She did accept, however, that an aspect of Murray was that the plea had not been tendered at the earliest possible opportunity. Where the difference lay, was, she said, that in Murray the complainers would not have been able to give evidence in any event.

[7] She further submitted that it was wrong of the sentencing judge to seek to ensure there was not disproportionate dilution of the sentence. There was no suggestion in, for instance, the case of Spence v Her Majesty's Advocate 2007 SCCR 592 that apparent disproportion should result in limitation of the discount. Further, there had been a general recognition of one third being the appropriate discount for a section 76 plea and there were no special circumstances in this case to point to a different result being called for. She submitted that the discount was insufficient. The appellant accepted his guilt of a serious offence in a section 76 letter procedure and the full one-third discount ought to have been afforded to him. It was observed by Ms Mackenzie that there was merit in practitioners being able to advise clients with some confidence as to the likely outcome in terms of discount if a section 76 plea is tendered.

 

Decision

[8] We have already mentioned our response to the first matter referred to in the grounds of appeal. We do not consider that, in respect of the failure to make admissions at interview, the sentencing judge can be seen to have misdirected himself. However, we are satisfied he has taken into account an irrelevant matter, namely, that the result of any more substantial discount than he awarded would have been what he felt was a disproportionate dilution of the sentence. The only tract of authority in which that approach has been approved is in relation to punishment parts in life sentences for murder as, for instance, discussed in the case of Boyle referred to by Ms Mackenzie and it was not appropriate to adopt that approach in the present case. However he was, we consider, justified to regard this as a case in which the willingness to plead guilty was not indicated at the very earliest opportunity; he points to seven weeks having elapsed between the appellant appearing on petition and the receipt of the first indication by way of section 76 letter that the appellant was accepting responsibility. No issue was taken with that being the time scale that was involved nor with the position being that the Crown would have had to work at preparing the case during that period. He was entitled to take that into account and it is something which can properly be reflected in restricting the discount from what might otherwise have been appropriate, namely a discount of one third. We are satisfied that the appropriate discount ought to have been one of 30%. The result is that the sentence of six years and six months falls to be quashed. We will substitute, in its place, a sentence of five years and seven months.