APPEAL AGAINST SENTENCE BY ERNEST FINDLAY AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 59
HCA/2016-17/XC
Lord Justice Clerk
Lord Bracadale
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST SENTENCE
by
ERNEST FINDLAY
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: F Mackintosh; John Pryde & Co
Respondent: I McSporran, Sol Adv, AD; Crown Agent
5 July 2016
Introduction
[1] On 8 December 2015, on the first day of trial, the appellant and a co-accused pled guilty to a charge which libelled that:
“(1) on 2 August 2015 at Dale Street, Old Dalmarnock Road, Glasgow and elsewhere in Glasgow you…..did assault Christopher Sweeney, c/o Police Service of Scotland and did pursue him, repeatedly punch and kick him on the head and body all to his severe injury”.
[2] On 29 December 2015, the appellant was sentenced to 30 months’ imprisonment. He received a ten per cent discount to his sentence on account of his plea in terms of sec. 196(1) of the 1995 Act. Leave to appeal was granted on the appellant’s argument that his plea in terms of sec. 196(1) ought to have attracted a discount greater than ten per cent.
Procedural history
[3] The appellant appeared on petition on 13 August 2015 and was fully committed on 21 August 2015. On 9 November 2015, his plea of guilty to assault by a single kick to the complainer’s head, to his injury, was rejected. On 17 November 2015, his plea of guilty to assault by a single kick to the complainer’s head to his severe injury was also rejected. When the case called for trial on 8 December 2015, pleas of not guilty were accepted from the second and fourth accused.
Crown narrative
[4] The complainer was part of a group of young people who were drinking in a play park in Glasgow. He was spun around on a roundabout and, being drunk, felt dizzy. Coming off the roundabout, he fell into one of the girls in the group (the first accused). The first accused and the appellant chased the complainer and he fell to the ground. The first accused repeatedly kicked and punched the complainer on the head and body as he lay on the ground. The appellant approached and kicked the complainer on the head. An independent witness saw the incident. As the appellant ran away, he was heard to say: “That’s how you knock someone out with one kick”. The complainer was taken to Glasgow Royal Infirmary. He had extensive bilateral facial fractures.
Submissions
[5] The decision to restrict the discount to the appellant’s sentence to ten per cent was a miscarriage of justice. Given the nature of the injuries it was not surprising that the initial plea had been rejected. After disclosure indicating the nature of the injuries, the second plea was tendered. It was recognised that it was also not surprising that this plea was rejected. The eventual plea had two elements: first, the appellant continued to acknowledge his own actions; and second, the actions of the co-accused had been agreed by the Crown and defence, subject to certain deletions, and the appellant had accepted that he bore art and part responsibility for those actions. It had been clear from the outset that this appellant was not going to trial, and in any event at any trial his solicitor would have been very restricted in what he could ask. He had accepted responsibility for his own actions and the real issue was whether the first accused would do likewise. An allowance of ten per cent discount for earlier acknowledgment of his own actions fell short of the appropriate recognition for the utilitarian value of the plea. An accused was not required to tender a detailed explanation for the basis of the plea being offered. To require him to determine whether there was a sufficient common purpose to justify his pleading to a greater degree of the libel would be to set the bar too high.
Discussion
[6] The sheriff concluded that the Crown had been right to reject the previous guilty pleas tendered by the appellant. It was only on the morning of the trial diet that acceptable pleas of guilty were tendered by the appellant and the first accused. When an acceptable plea was finally tendered, more than forty members of the public were in attendance for jury service. The first accused’s guilty plea was agreed before 10am. The potential jurors were excused at approximately 10.45am when the appellant’s guilty plea was agreed. The plea was negotiated and finalised only on the morning. The sheriff’s note records that it was not at all clear until then that the complainer would not have to give evidence.
[7] Where a restricted plea is tendered, an accused is not required to disclose the basis therefor; however, if he does not do so he runs the risk that the plea cannot be accepted, that the utilitarian value of the plea is diminished, and that any eventual discount is restricted accordingly (Spence v HMA 2008 JC 174).
[8] In HMA v Booth 2005 SCCR 6, Lord Penrose, delivering the opinion of the court, said (para 21):
“[21] Section 196 of the Criminal Procedure (Scotland) Act 1995 is conceived in favour of the accused, and depends on [a] few crucial facts. The first is that the offender has indicated an intention to plead guilty at some stage in the proceedings. That may be in open court, or in a communication to the prosecutor. It is irrelevant whether the prosecutor is prepared to accept the plea. What is required is an unequivocal indication of the position of the offender. It is abundantly clear that the earlier that is done the greater the advantage the offender may obtain. The second crucial issue is likely to be the correlation between the plea tendered and the ultimate disposal of the case. An offender whose plea is not accepted and who is ultimately convicted of an offence more serious than that to which he indicated an intention to plead is likely to be in a less advantageous position than an offender who matched the ultimate disposal or offered to plead to a more serious offence than that established by the Crown. The third factor relates to the circumstances in which the indication is given of the intention to plead, and typically involves, though cannot be limited to, timing. The position of co-accused cannot be relied on to justify delay: Robertson v Gallagher. It cannot be emphasised strongly enough that a clear and early indication of the offender's willingness to plead to the offence or elements of the offending conduct is in the offender's interests, whether or not the prosecutor accepts the plea at that time or at all.”
Decision
[9] In the present case, the appellant is in reality in no different position to the individual who delays his plea until the position of the co-accused is determined. The correlation between the plea originally offered and that tendered was limited. With respect to the argument advanced, it would not at all be obvious that the appellant did not intend to proceed to trial: in the absence of explanation for its terms, the pleas tendered would be equally consistent with an intention to proceed to trial seeking to restrict his responsibility to that of actor.
[10] We find it difficult to understand the argument that to require the appellant to determine whether there was a sufficient common purpose to justify his pleading to a greater degree of the libel would be to set the bar too high. The appellant knew what he had done, and knew the actions in which he had participated. Even had he been in doubt of that, it was acknowledged that by the time of the first diet he had received disclosure of the Crown case sufficient to enable him to identify the evidence that there was indeed sufficient common purpose to justify his pleading guilty to actions in which he was art and part.
In Gemmell v HMA 2012 JC 223 Lord Gill, LJC, observed (para 81):
“[81] Where the sentencer has given cogent reasons either for allowing the discount in question or for declining to apply a discount at all, I consider that it is only in exceptional circumstances that this court should interfere. I repeat what I said in HM Advocate v Graham (paras 21, 22). Guidelines provide a structure for, but do not remove, judicial discretion. Guidelines should not lead to a mechanistic approach. The sentencing exercise should always involve the sentencer's judgment and discretion which he must in every case exercise on a consideration of all of the circumstances. Those representing an accused who has tendered an early plea should bear this in mind when considering whether to lodge an appeal based solely on the amount of the discount.”
[11] In this case the sheriff has given cogent reasons for restricting the discount, and we cannot fault those reasons. It is always a matter for the sentencing judge to try to assess the utilitarian value of the plea, and to proceed accordingly. It is clear that the plea had very little utilitarian value and the appeal will be refused.