APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith
Appeal No: XJ573/04
OPINION OF THE COURT
delivered by LORD MACFADYEN
NOTE OF APPEAL AGAINST SENTENCE
PROCURATOR FISCAL, Linlithgow
Appellant: Huston; Adams Whyte
Respondent:Ms. Coutts, A.D.; Crown Agent
2 September 2004 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.  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.  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:-
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."
"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."
"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."