Scottish High Court of Justiciary Decisons

"On 16 September 2007 at 51 Glenisla Drive, Arbroath, you did assault Agnes Mercer or Raffan, your wife, then residing there and you did present a knife at her and repeatedly stab her on the body with said knife and you did kill her."

The appellant's pleas of not guilty to two other charges on the indictment were accepted by the Crown. The appellant was sentenced to an extended sentence of thirteen years of which the custodial element was eight years and the extension period was five years. He appealed against that sentence but the appeal was restricted to the custodial element of the extended sentence as the appellant did not challenge the appropriateness of the imposition of an extended sentence or the extension period of five years selected by the sentencing Judge.

"In this case, I found it extremely difficult to form a firm view as to the custodial sentence I would have imposed after trial. That was because after trial I would have been much more fully informed about a number of factors, including the relationship between the appellant and the deceased, the history of marital conflict between them, and the events of the night when the deceased died. Those events included the nature and duration of the abusive and violent conduct of the appellant and the appellant's persistence in that conduct notwithstanding the telephone call to the police which the deceased made and the subsequent telephone call, which the police made and the appellant answered. It was, of course, after that second call that the appellant inflicted the fatal blow, the severe nature of which was clear from the post-mortem findings. It would, of course, have been perfectly possible for me to have indicated a precise figure for the sentence I would have imposed, had the appellant been convicted after trial. In the particular circumstances of this case, however, having given full consideration to the terms of the agreed narrative, the contents of the numerous reports available and the terms of the plea in mitigation, I took the view that it would have been artificial for me to have indicated the precise sentence which I would have imposed had the appellant been convicted after trial".

We have considerable sympathy for the sentencing Judge in this case. It is undoubtedly easier for a sentencer to reach a view about the appropriate sentence if he or she has heard the evidence in the case and is therefore able to form a clearer view as to the circumstances and gravity of the offence. Having said that, it seems to us that in cases where a sentencer considers that a discount is appropriate to reflect a plea of guilty it is necessary for him or her to reach a conclusion concerning the sentence that would have been imposed if the accused had been convicted after trial. We appreciate that to some extent this is an artificial process because it may well be that the figure selected by the sentencer would be greater or less if the same sentencer had had the advantage of hearing all of the evidence in the case. Nevertheless a sentencer requires to undergo the process of identifying a determinate sentence as a starting point before he or she can apply a specific discount to arrive at the appropriate sentence and before the sentencer can state in court the extent to which he or she has discounted the sentence. This process is also essential if there is to be the greater transparency in sentencing envisaged by the court in Du Plooy at paragraph 25. The approach adopted by the sentencing Judge in this case has resulted in uncertainty regarding both the starting point before any discount was applied and the extent of such discount. For these reasons we agree with the submission of counsel for the appellant that the approach adopted by the sentencing Judge in this case was incorrect. In order to determine the appropriate sentence we have considered the sentencing Judge's report which provides us with a helpful and detailed account of the agreed narrative, the plea in mitigation, the Social Enquiry Report and Dr Lundie's Report and we have concluded that the appropriate starting point in this case for the custodial part of the extended sentence was ten years' imprisonment.