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Cite as: [2004] ScotHC 56

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MacKie v. Procurator Fiscal [2004] ScotHC 56 (02 September 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord Nimmo Smith

Appeal No: XJ573/04

OPINION OF THE COURT

delivered by LORD MACFADYEN

in

NOTE OF APPEAL AGAINST SENTENCE

by

DONALD MACKIE

Appellant;

against

PROCURATOR FISCAL, Linlithgow

Respondent:

_______

Appellant: Huston; Adams Whyte

Respondent: Ms. Coutts, A.D.; Crown Agent

2 September 2004

[1] On 23 December 2003 the appellant, Donald Mackie, pled guilty to various charges on a summary complaint at the instance of the respondent. Those charges included one of theft by shoplifting, and one of contravention of section 2 of the Road Traffic Act 1988. In respect of those two charges the Sheriff, on 20 January 2004, imposed a probation order of one year's duration.

[2] The appellant failed to attend three successive probation appointments, on 28 January and 3 and 9 February 2004. Proceedings were instituted in respect of the breach of probation which those failures constituted. He admitted breach of probation, and on 15 March 2004 the Sheriff revoked the probation order and sentenced him to four months' detention in respect of each of the relevant charges.

[3] The Note of Appeal which has been lodged on the appellant's behalf contains a number of grounds of appeal, the first of which is in the following terms:

"The grounds of appeal are that sentence is excessive given that the Sheriff failed to attach sufficient weight to the following facts:-

The fact that the charges for which probation was imposed were

resolved by way of pleas from the Appellant."

In a letter written for the purpose of exercising the appellant's right of appeal against the initial refusal of leave to appeal, his solicitors expanded on that ground of appeal in the following terms:

" ... the Sheriff states in the last paragraph of his report that notwithstanding the case of Du Plooy [v H. M. Advocate 2003 SCCR 640], he gave the accused no credit or discount for the fact that the complaint against the [appellant] was resolved by way of a plea of guilty to a reduced number of charges."

[4] Leave to appeal was granted "only in respect of the argument based on Du Plooy". It is therefore unnecessary to make any reference to the other grounds of appeal in respect of which leave to appeal was refused.

[5] The submission made to us was that, in determining the sentence to be imposed on the appellant after his breach of the probation order, the Sheriff ought, in view of Du Plooy, to have applied a discount in respect of the fact that there had been pleas of guilty at the stage before the probation order was made.

[6] In his Report to this court the Sheriff explained his decision in the following terms:

"Having decided that no disposal other than custody was appropriate, I turned to the length of the appropriate sentences. On the Breach of Probation, his record and the nature of the offences justified in my view the maximum period of six months. I took into account the period on remand, and reduced the periods accordingly to four months. I considered the question of the stage of his plea and the charges conceded by the prosecutor but did not consider that taking into account the nature of the offences and the manner of his apprehension I was bound by the Du Plooy guidelines to give him discount."

[7] We are not sure that we fully understand the point which the Sheriff seeks to make in the last sentence of the passage which we have quoted. In those circumstances we consider it right to look afresh at the question of the appropriateness of a discount in respect of the appellant's pleas of guilty.

[8] In Du Plooy, at paragraph 14 of the Opinion of the Court, the Lord Justice General said:

"In our view section 196(1) [of the Criminal Procedure (Scotland) Act 1995] implies that, in determining the appropriate punishment of the accused, consideration is to be given to not only the 'utilitarian value' of the plea of guilty but also to the implications of the accused's acceptance of guilty."

[9] We do not consider that it can be said in absolute terms that the circumstances in which the original plea of guilty was tendered become irrelevant when a court has to reconsider the question of punishment after breach of a probation order. We are, however, of opinion that it is appropriate to weigh against the fact of the plea the fact that it has been followed by a breach of probation. In our view the utilitarian value of the plea may be reduced or negated by the fact that, as a result of the breach of probation, a further diet has been made necessary. Moreover, the breach - in this case the almost immediate breach - of the probation order can be regarded as reflecting unfavourably on the genuineness of any remorse or acceptance of guilt to be inferred from the plea. In short, once there has been a breach of probation, more must be taken into account than the original plea when assessing whether a discount is merited.

[10] Applying that approach to the circumstances of the present case, we take the view that no discount was merited. The appeal is therefore refused.

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