APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Brodie	[2012] HCJAC 143 XC389/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL AGAINST SENTENCE by BRIAN LEES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: CM Mitchell; Cairns Brown, Dumbarton

Respondent: Brown, QC, AD; the Crown Agent

10 October 2012

[1] On 4 July 2012, at Dumbarton Sheriff Court, the appellant pled guilty to an indictment, in terms of section 76 of the Criminal Procedure (Scotland) Act 1995, containing a single charge as follows:

"between 14 April 2012 and 15 April 2012 ... you ... did, whilst acting along with others whose identities are to the prosecutor meantime unknown, break into the property owned by the Church of Scotland at Rhu and Shandon Parish Church ... and steal a quantity of metal pipes;

you ... did commit this offence while on bail, having been granted bail on 7 November 2011 at Dumbarton Sheriff Court".

[2] The appellant was sentenced to four years and six months' imprisonment, that sentence being discounted for the early plea from a headline sentence of six years (41/2 months being attributable to the bail aggravation).

[3] The circumstances of the offence are relatively straightforward. The church libelled had been broken into and a large number of organ pipes, which had been made from various different metals, removed. Substantial damage to the organ had also occurred beyond the simple removal of the pipes. As chance would have it, two police officers, on mobile patrol, had noticed a hire van in the early hours of the morning and, thinking this was somewhat suspicious, had noted its registration number. This had led to the arrest of the appellant, who had hired the van in his own name. The appellant told the police where the organ pipes could be found and they were recovered. He repeated his admission of involvement in the offence during his subsequent interview, when he explained that his part in the theft had been confined to loading the pipes into the van and to driving. However, he was not prepared to name his partners in crime. The total damage caused was estimated to be in excess of £22,500 and the value of the pipes stolen was almost £16,000. It is not clear what the cost of repair of the damage is, standing the recovery of, presumably damaged, pipes.

[4] In selecting the headline sentence, the sheriff said the following in his report:

"I took the view that this was an extremely serious matter, which must have involved a degree of planning. Cutting equipment was used in the course of the theft and transport was also necessary for the removal of the organ pipes. Although the appellant's position was that the had only been involved in loading the vehicle and driving it, the fact was that he had clearly hired the vehicle for the purpose of facilitating the commission of this crime. It was not suggested that he had hired the vehicle for any other reason. I was also aware of the distress and outrage which had been felt locally at the commission of this crime showing, as it did, an entirely callous disregard for the feelings of others in pursuit of dishonest gain."

[5] The appellant has a significant criminal record, commencing with a series of offences of theft by opening lockfast places. In 1993 he was sentenced to five years' imprisonment for assault and robbery at Glasgow High Court. In 1998 he was sentenced to one year's imprisonment for concern in the supply of drugs and, in November 2003, to a further period of six months, on appeal from a more substantial sentence previously imposed, again at the High Court at Glasgow. However, his offending over the last five years has largely been confined to summary drugs and road traffic offences and minor dishonesty.

[6] There are two grounds of appeal. The first is that the starting point of six years was excessive, having regard to the lack of significant offending over the last few years. It was said that too much weight had been placed by the sheriff on matters such as the outrage in the community. This was a case which would not normally have justified a remit to the High Court. Secondly, it was said that a discount of only 25% was inadequate, standing the existence of the section 76 letter having been submitted on 15 June. The sheriff had reasoned, in relation to the amount of discount, that the appellant had refused to reveal the identity of other persons involved in the offence and that police resources would accordingly have been expended in an effort to bring those persons to justice. It was at least partly for that reason that he restricted the discount as he did.

[7] This was a particularly serious offence by a person with a significant criminal record. The sheriff was entitled to take into account its impact on the local community. Not only should the court have regard to the general current frequency of metal theft, but also to the unoccupied and unprotected nature of the building involved in the present circumstances. The court must do what it can to deter this type of planned and organised activity. Nevertheless, an important feature of the appellant's case was his immediate confession and the recovery, albeit in a damaged state, of the property. Balancing all these factors, the court considers that the headline figure selected by the sheriff was excessive. It takes the view that a starting point ought to have been five years (6 months being attributable to the bail aggravation).

[8] The court is then required to apply an appropriate discount to that sentence. It is bound to agree with the submission made that it is illegitimate to take into account, when assessing formal discount, matters such as a failure to reveal the identity of other persons involved in a crime. As was said in Gemmell v HM Advocate 2012 SCCR 176 (LJC (Gill) at para [50]), such a feature may be taken into account when assessing the headline sentence, but is not something relevant in determining the public utility of the plea. In these circumstances the court will apply the standard one-third discount for a section 76 plea and that will, in effect, reduce the sentence to one of three years and four months.

DL