APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kingarth Lord Carloway	[2010] HCJAC 20 Appeal No: XC407/09 OPINION OF THE COURT delivered by LORD KINGARTH in APPEAL AGAINST SENTENCE by CHRISTOPHER KELLY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: M. MacKenzie, Barony Law; Edinburgh

Respondent: J. Cherry QC, AD; Crown Agent

15 January 2010

[1] On 7 May 2004 at the High Court in Edinburgh the appellant pled guilty, by way of section 76 procedure, to the following charge:

"on 28 February 2004 at the public car park, Greenside Street, Alloa you did assault Archibald William Abbot, c/o Central Scotland Police, Alloa and did punch him on the head, cause him to fall to the ground and whilst said Archibald William Abbot was lying on the ground did repeatedly kick and stamp on his head and body, all to his severe injury and to the danger of his life."

[2] As reported by the trial judge the circumstances of the offence were that the complainer, Mr Abbot, who was 40 years old, went out drinking on the evening of Friday 27 February 2004. He went to the Bank Public House in Alloa and had a considerable amount to drink. His recollection of events and his ability to handle what the appellant had done to him had been affected by the amount of drink which he had taken. In the busy public house Mr Abbot sat on an empty seat next to the appellant and a woman who was with the appellant. An argument ensued between him and the appellant and both were thrown out of the pub. Mr Abbot then went into the next public house along the street, where he ordered a drink and saw the appellant enter the public house and point his finger at him. Mr Abbot became concerned at the appellant's attention being focused on him, and this was a factor in his deciding to leave the second public house and walk home. Just after midnight Mr Abbot was walking through Alloa town centre in an area covered by close circuit television. He was drunk and not very aware of what was going on. The appellant followed him, ran up behind him and punched him twice on the head, knocking him down. The appellant then fell over Mr Abbot but got up again, punched him some more, kicked him on the head several times and then repeatedly stamped on Mr Abbot's head while Mr Abbot lay motionless on the ground. At no time did Mr Abbot do anything that could have been construed as offensive towards the appellant and at no time did Mr Abbot have any opportunity to defend himself. Following upon the assault, the appellant met someone else in the street and was arrested by police officers who arrived on the scene. At interview he admitted that he had become involved in what he described as a fight and had engaged in punching and kicking. He made no reply to caution and charge. The Advocate Depute played a video recording of the incident which was captured on CCTV. This showed about six kicks to, and three stamps upon, the head of Mr Abbot while he lay defenceless on the ground.

[3] On arrival at hospital Mr Abbot was found to be conscious but bleeding heavily from the mouth, face and ear. There was concern that he might have sustained a fractured skull, but x-ray showed no fracture and a CT scan showed that he had sustained no brain injury. He did not respond well to questioning and was vomiting. There was extensive bruising and swelling over the whole of his face. The swelling was particularly bad over his left jaw and he could not open his mouth fully. He was unable to open his left eye because of the swelling. The amount of swelling and bruising which he had sustained was sufficient to prevent a full medical examination and he was kept in hospital. It was a matter of good fortune that he had not sustained more serious injuries. He would make a full recovery, but his recovery was not yet complete. He had difficulty with memory and headaches, some deafness in his left ear and some residual swelling, all of which were expected to resolve in due course. The injuries which he sustained were potentially life threatening.

[4] The appellant had three previous convictions for assault. Two were at summary level, on 4 December 1998 and 25 October 1999 respectively, each resulting in sentences of 3 months detention. The third conviction was in the High Court in Glasgow in January 2000, when he received a sentence of 6 years detention from 21 September 1999. That sentence was for three separate offences - assault, assault to severe injury and assault to severe injury and permanent disfigurement. He was released on 19 September 2003 and was therefore on licence at the time of the relevant offence.

[5] Of even date with his plea the appellant was ordered to be returned to prison for a period of one year in terms of section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, and sentenced to 8 years imprisonment to commence on the expiry of that order. In sentencing the appellant the trial judge stated that had the appellant been convicted after trial he would have imposed a sentence of 9 years imprisonment.

[6] The appellant did not appeal against his sentence within the two weeks statutory time limit (as provided by section 110(1)(a) of the Criminal Procedure (Scotland) Act 1995). Nor did he at any stage seek an extension of time within which to do so (section 111(2)). Notwithstanding this, some years later, on a date and in circumstances not made known to the court, he applied to the Scottish Criminal Cases Review Commission ("the Commission") in relation to the question of the level of his sentence, and his application was considered. Thereafter the Commission decided to refer the matter to this court, for the reasons set out in their Statement of Reasons ("the Statement") dated May 2009. The appellant has now appealed by Note of Appeal against his sentence.

[7] At paragraph 26 of the Statement it is said that, notwithstanding that the matter is one for the discretion of the sentencing judge,:

"...it has become clear that in situations where an accused person tenders a plea of guilty using the accelerated procedure provided for under section 76 of the Criminal Procedure (Scotland) Act 1995, a discount of one third of his sentence is regarded as appropriate. Definitive guidelines in relation to the issue of the amount of discount which it is appropriate to dispense at each stage of the proceedings have now been laid down by the Lord Justice General in Spence v HMA Advocate [2007] HCJAC 64."

Specific reference is then made to paragraph [14] of that decision. The Commission go on to refer to some reported decisions of this court in the years following Du Plooy and Others v HMA 2003 SCCR 640 and preceding Spence v HMA, the earliest of which is McKenna v HMA 2005 GWD 27‑527, in which, on 8 July 2005, a sentence of 5 years imprisonment, reflecting a discount of 15% following a section 76 plea, was quashed and replaced by a sentence of 3 years and 6 months, reflecting a discount of 30%.

[8] At paragraph 30 the Commission conclude:

"Having examined the development of the law since the case of Du Plooy v HM Advocate 2003 SCCR 640 and, in particular, having studied the guidelines on sentencing in the circumstances of a plea of guilty under section 76 of the Criminal Procedure (Scotland) Act 1995 outlined by the Lord Justice General in Spence v HM Advocate 2007 HCJAC 64, the Commission has concluded that the sentencing judge in this case may have gone outwith the area of discretion afforded to him in limiting the discount of sentence in the manner in which he did. It follows that the Commission is of the view that the applicant may have suffered a miscarriage of justice in his sentence under this ground of review."

[9] In the Note of Appeal submitted on behalf of the appellant the only ground of appeal is that "the measure of reduction afforded was too limited having regard to the stage at which the plea of guilty was tendered".

[10] In his report to this court the trial judge comments as follows:

"I refer to the ground of appeal and the Statement of Reasons by the Scottish Criminal Cases Review Commission under Section 194D(4) of the Criminal Procedure (Scotland) Act 1995. The Appeal Court issued its decision on the issue of the principle of discounts in sentences for pleas of guilty in Du Plooy on 3 October 2003. Subsequently, on 25 March 2004, it reduced Du Plooy's sentence for his Section 76 plea from four years to three years six months. (I myself was the sentencing judge in the case of Du Plooy.) The discount was therefore one eighth. As I recollect, it was not until the Appeal Court gave further guidance on the amounts of discounts in Spence v HM Advocate that a discount of one third became firmly established for a Section 76 plea. Had that been the case when I sentenced the appellant on 7 May 2004 he would have received a discount of one third in his sentence for his Section 76 plea."

[11] In her carefully presented argument counsel for the appellant did not seek to suggest that a discount of a full third would have been appropriate (even applying the guidelines of Spence v HMA, and notwithstanding the observations of the trial judge), having regard to the length of the sentence and the circumstances of the offence (including in particular the early detention of the appellant at the scene). She nevertheless submitted that a greater discount should have been afforded. In answer to questions by the court as to the practice of the court at the time when the sentence was imposed, counsel referred to Du Plooy and Others v HMA (No 2) 2004 SCCR 330. She was not in a position to explain why the appellant (who had changed agents) had not originally sought to appeal, or sought an extension of time within which to do so. The appellant, we were informed, was due to be released on licence in May 2010.

[12] In our opinion the appropriate question (somewhat different from that which the Commission asked) is whether the sentence imposed could be said to have been excessive having regard to the practice of this court at the time it was imposed. As was made clear in Locke v HMA 2008 SCCR 236 (and affirmed in HMA v Boyle & Others [2009] HCJAC 89) sentencing decisions of this court - including guidelines given - are not to be treated as having retrospective effect. Applying that principle, we are unable to say, on the information before us, that the discount allowed in this case could be said to have been outwith the range reasonably open to the trial judge in accordance with the then prevailing practice of the court. Not surprisingly the trial judge had particular regard to the final resolution, a few weeks earlier on 25 March 2004, of Du Plooy and Others v HMA (No 2). In that case the sentences imposed on three appellants, who pled guilty by section 76 procedure, of 4 years, 5 years and 5 years respectively, were reduced on appeal to 3 years 6 months, 4 years 6 months and 4 years 6 months respectively. In percentage terms the discounts afforded were an eighth, a tenth and a tenth respectively. While it was emphasised that the circumstances in each case were such that it would not have been difficult for the court to establish guilt, the trial judge in the present case was entitled to have regard to the fact the offence was captured on CCTV and to the fact that the appellant was detained at or close to the scene of the offence and immediately accepted his involvement. Perhaps more importantly, the trial judge was entitled to have regard to the fact that the discount which he proposed to allow was of a full year. As reflected in Du Plooy and Others v HMA (No 2), and in accordance with our recollection of other cases at about this time, the attention of the court tended to focus as much on the length of the discount actually afforded as on the percentage which it reflected. Even now, particularly perhaps in the case of lengthy sentences, this is a matter which properly falls to be recognised. As was said in Spence v HMA, at para [15]

"These broad figures are intended for guidance only. They are not prescriptive, the amount of the discount (if any) in a particular case being dependent on its own circumstances. Special circumstance may apply to very short and to very long sentences, as they do to the fixing of punishment parts in indeterminate sentences ..."

[13] In all the circumstances we are not satisfied that it can be said that the sentence was excessive, and the appeal is refused.

[14] We would only add that this case appears to give rise to questions similar to those raised by the court in Hunt v Aitken 2008 SCCR 919 following a referral by the Commission. In that case an appeal by way of stated case was deemed abandoned by reason of the appellant's failure to comply with certain statutory requirements, and an application by him to the court for further time within which to comply was refused. Notwithstanding this the Commission referred the matter to the court, which heard an appeal presented by way of bill of suspension. Reflecting on its statutory discretion to allow further time, the court observed that the "court's exercise of its discretion, in the interests of justice, is not dictated by an assessment of the merits of any ground of appeal", and further that the interests of justice were "not well served by an approach which too readily excuses failures to comply with the statutory requirements." The court went on to say:

"(5) Against that background, the question of interest to the court was whether, in a case where the statutory requirements had not been complied with and the court had refused to allow further time, those statutory provisions could be circumvented, and effectively set at nought, by means of an application to the Commission and the subsequent referral to the court, or whether (and if so, how) the appellant's failure to comply with those statutory provisions should be taken into account: for example, by the Commission (in the exercise of its discretion to refer under Section 194B, or its consideration under Section 194C of whether a miscarriage of justice might have occurred, or of whether it was in the interest of justice that a reference should be made), or by the court (in its consideration of whether there had been a miscarriage of justice)."

[15] There are a number of obvious differences in the present case, perhaps the most significant of which is that at no stage did the appellant seek to appeal against his sentence or seek an extension of time within which to do so. But the effect of the referral by the Commission is that this court is bound to consider the appeal regardless of what it might have done if an application for an extension of time had been made, and by virtue of the Act of Adjournal (Criminal Procedure) Rules 1996 (Rule 19B.1(3)) leave to appeal is treated as having been granted without the need for any sifting exercise. Although in terms of Section 194B(1) of the Criminal Procedure (Scotland) Act 1995 it is, of course, competent for the Commission to refer a case even where there has been no appeal, the court understands that the Commission not infrequently requires applicants to apply for leave to appeal late before any application is considered. For whatever reason this was not done in the present case. It is, we consider, unfortunate, against the background of Hunt v Aitken, that it is not made clear in the Statement why this was not done, or whether any assessment was made of whether there was good reason for the appellant not appealing timeously or seeking an extension of time, and if so whether considerations of that kind played any part in the decision to refer, in particular the decision that it was, in the view of the Commission, in the interests of justice to do so. Although the fact that an appellant has failed to observe a statutory time bar, or failed to seek an appropriate extension, does not of itself necessarily mean that there has not been a miscarriage of justice, or that it is not in the interests of justice for the matter to be referred to the court, it ought, on the face of it, to be a relevant (perhaps highly relevant) factor, at least in relation to the latter consideration. As in Hunt v Aitken, however, there is a need to proceed with expedition in this case and the court was not favoured with submissions on these questions, which in an appropriate case would benefit from full discussion.