Appellant: Fyffe, Solicitor Advocate; Drummond Miller WS

Respondent: Niven Smith AD; Crown Agent

4 December 2012

[1] On 31 July 2012 the appellant appeared on a complaint containing inter alia a charge of assault and a charge of contravening section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. He pled guilty to these offences and the sheriff imposed sentences of 6 months and 4 months respectively, the sentences to be served consecutively. In recognition of the plea of guilty, these sentences had been discounted from 9 months and 6 months respectively.

[2] The short point in the appeal is a submission that these sentences were incompetent, since the starting point of 15 months is in excess of the maximum sentence which can be imposed in relation to any one complaint. The ultimate sentences were within the competency of the sheriff, but the manner in which he arrived at those sentences was flawed. In support of that point reference was made to Nicholson v Lees 1996 SCCR 551 LJC (Ross) p 558:

"Where two or more charges are contained in a single complaint, the court cannot competently impose a total period of imprisonment which exceeds in aggregate the upper limit permitted for that court in the particular case by common law or statute."

Reference was also made to Jordan v HMA 2008 SCCR 618 at p 625/626; and McGhee v HMA 2006 SCCR 716.

[3] Moreover, the sheriff had taken account of the gravity of the offences in deciding what the appropriate discounted sentence should be: this was a factor relevant to the headline sentence, not to the discount. Reference was made to Du Plooy v HMA 2003 SCCR 640 where the sheriff had imposed the maximum sentence and refused any discount, on the basis that in his view it would not meet the gravity of the offence. The court pointed out (para 18) that the gravity of the offence should be reflected in the sentence which should have been imposed had there been no plea of guilty, and rejected the notion that the court could proceed on the basis that the statutory maximum was insufficient. We were also referred to Horribine v Thomson 2008 SCCR 377 and Gemmell v HMA 2012 SCCR 176.

[4] Since a point of competency arose, we invited submissions from the Crown. The Advocate Depute advised us that the Crown position was also that the sentence was incompetent, for the same reasons as advanced by Mr Fyffe.

[5] In our view the sentence imposed by the sheriff was an incompetent one. It was made clear in Jordan v HMA that where the offence is one of contravention of a statutory provision prescribing a maximum sentence, then the starting point cannot competently be more than the statutory maximum. In that case, an original appeal had been refused on the basis that although the headline sentence was greater than the maximum, the eventual sentence was within the powers available to the court. At a second appeal on a referral from the SCCRC, the court disagreed with the approach taken in the earlier appeal. In the present case the issue arises not from a statutory maximum prescribed for the offences but by reason of the fact that the two charges were contained in one complaint. In such a situation it was pointed out in Nicholson v Lees that the sentences imposed in aggregate cannot exceed the court's sentencing power on one complaint, in this case 12 months imprisonment. It follows that the headline sentence of 15 months could not competently have been imposed by the sheriff. It is correct that in McGhee v HMA, the headline sentence of 6 years was in excess of that which the sheriff could competently impose on indictment; however, there was in such a situation a mechanism whereby, had it been necessary after trial, the headline sentence of 6 years could have been imposed, namely remit to the High Court. The headline sentence was one which therefore could competently have been imposed on the charge on the indictment. In the case of a summary complaint, no such mechanism exists and the sheriff's sentence was incompetent. We are also persuaded that the sheriff erred in his approach in concluding, effectively, that the maximum sentence available was inadequate. The point made in Du Plooy, above, was repeated in Horribine v Thomson when the court confirmed that it was illegitimate for a sentencer, where discounting factors otherwise exist, to impose the maximum sentence by reason of his belief that the maximum available to him was inadequate punishment.

[6] Mr Fyffe invited us to quash the sentences imposed by the sheriff and impose a lesser sentence based on the statutory maximum. In the circumstances we will do so, imposing on charge 1 a sentence of 9 months and on charge 3 a sentence of 3 months, reduced respectively on account of the plea to sentences of 6 months and 2 months.