LITTLE, APPEAL AGAINST SENTENCE BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC

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Appellant: A Ogg (sol adv); Paterson Bell Solicitors, Edinburgh for Tod & Mitchell, Paisley

[1] The appellant Barry Little is 26 years old. On 30 January 2018 he pled guilty to an

offence of culpably and recklessly throwing paving stones at the window of a neighbour’s

house. The offence was committed on 9 December 2017 and the appellant offered to plead

guilty by section 76 letter within days of his first appearance on petition.

[2] The circumstances of the offence included the fact that the householder’s 10 year old

son was within the living room of the premises when the appellant threw a large paving

stone through the window, narrowly missing the child. Having heard a narration of the

circumstances and the appellant’s solicitor in mitigation, the sheriff selected a headline

sentence of 30 month’s imprisonment, which she decided to restrict by a period of about

25% in light of the plea of guilty. This resulted in a sentence of 22 months backdated to

[3] The appellant was granted leave to appeal on his second ground only. That ground

challenged the level of discount of sentence permitted by the sheriff. It narrated that in

passing sentence the sheriff stated that she was limiting the discount for the plea of guilty as

the complainer was a juvenile aged 10 years and the circumstances of the offence were such

[4] In the report which she has prepared for this court the sentencing judge does not

contradict or quarrel with what was said within the ground of appeal and she states this:

“In considering the modification I considered the age of the child as an aggravating

factor in the circumstances and given the weight of evidence implicating the

[5] In the decision of the full bench in the case of Gemmell & others v HM Advocate

2012 SCCR 176 the court gave authoritative guidance on the circumstances in which a

discount of sentence might be permitted and on the approach to the calculation of any such

discount to be afforded. At paragraph 37 of his opinion, the Lord Justice Clerk made it plain

that the assessment of the headline sentence and the assessment of any discount are separate

processes, governed by separate criteria, and that the only relevant consideration in relation

to discount is how far the utilitarian benefits of the early plea have been achieved. As he

also made plain in paragraph 38, factors which aggravate the commission of the crime are

relevant only to the sentencer’s decision on the starting figure for sentence.

[6] Whilst we readily recognise that the age of the complainer in the present case

constituted an aggravation of the offence, and was therefore relevant to assessment of the

appropriate headline sentence, we are satisfied that the sheriff misdirected herself in taking

account of that aggravating feature as a factor restricting the level of discount to be afforded.

If anything, one might have thought that the utilitarian value of the plea was increased by

virtue of the fact that a young child was not required to give evidence or to have the worry

[7] At paragraph 48 of his opinion in Gemmell, the Lord Justice Clerk also explained that

the strength of the Crown case was not to be treated as a factor influencing the amount of

discount to be permitted and he explained why this should be so. Accordingly, we are

satisfied that the sheriff misdirected herself in this regard also.

[8] In light of the clear and authoritative guidance given in the case of Gemmell we find it

surprising that the sheriff approached the assessment of sentence discount in the manner

which she explains that she did. In the report which she has prepared she gives no reason

for departing from, or failing to comply with, the guidance provided.

[9] In these circumstances we shall quash the sentence imposed and in its place we shall

impose a sentence of 30 months’ imprisonment restricted in light of the early plea to a

period of 20 months, backdated to the same date as selected by the sheriff.

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> LITTLE, APPEAL AGAINST SENTENCE BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_28 (17 April 2018) URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_28.html Cite as: [2018] HCJAC 28, [2018] ScotHC HCJAC_28

Scottish High Court of Justiciary Decisons