Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2009/2009HCJAC8A.html
Cite as: 2009 GWD 5-90, 2009 SCL 530, [2009] HCJAC 8A, [2009] ScotHC HCJAC_8A, 2009 SCCR 203, 2009 JC 133

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Clarke

Lord Hardie

[2009] HCJAC 8 A

Appeal No: XC251/08

OPINION OF THE COURT

delivered by LORD HARDIE

NOTE OF APPEAL AGAINST SENTENCE

PETER RAFFAN

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: James MacDonald, Advocate; Drummond Miller, Solicitors, Edinburgh

Alt: G Henderson, Advocate, A.D.; Crown Agent

15 January 2009

[1] The appellant, who was charged with the murder of his wife, appeared at a continued preliminary hearing on 18 January 2007 in Edinburgh High Court when he pled guilty to a charge of culpable homicide in the following terms:

"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.

[2] The issue in the appeal related to the approach of the sentencing Judge towards the allocation of a discount in terms of section 196 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") following the appellant's plea of guilty. It was submitted on behalf of the appellant that in imposing sentence the sentencing Judge had stated that had the appellant been convicted after trial the custodial part of the sentence would have been "at least ten years". In his report the sentencing Judge agrees that he made such a comment but explains that what he said was that the sentence would have been "at least ten years and possibly higher". In these circumstances, counsel for the appellant submitted that the sentencing Judge ought to have indicated a definite starting point for the sentence before the application of discount (Du Plooy and Others v HMA (No 1) 2003 S.C.C.R. 640 at paragraph 25). The approach adopted by the sentencing Judge precluded the appellant and any objective bystander from understanding the starting point selected by the sentencing Judge or the amount of discount afforded to the appellant in respect of the early guilty plea.

[3] In his report the sentencing Judge advised us that it was a conscious decision on his part to explain the discount that he was allowing in the terms stated above. By way of explanation for his approach he stated:

"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.

[4] The second submission by counsel for the appellant was that even if the custodial element of the sentence were to be determined at ten years prior to the application of any discount, the amount of the discount applied by the sentencing Judge would have been 20 percent. In these circumstances it was submitted that such a discount was inadequate having regard to the acceptance by the appellant of responsibility for killing his wife at a very early juncture. He had offered a plea of guilty to culpable homicide prior to the service of the indictment but that offer was rejected. His intention to plead guilty had been sufficiently articulated at an early stage in the proceedings to entitle him to a substantially higher discount than 20 percent. Counsel for the appellant confirmed that no letter in terms of section 76 of the 1995 Act had been tendered on behalf of the appellant and the plea of guilty had been tendered at the second preliminary hearing in the case. In his report the sentencing Judge confirmed that the appellant had accepted responsibility for killing his wife at the outset. He also confirmed that the appellant's willingness to plead guilty to culpable homicide had been intimated some time before the indictment was served. The sentencing Judge considered that there had been some utilitarian value in the tendering and acceptance of the guilty plea but he considered that in the circumstances of this case, where the principal issue at any trial would have been the appellant's state of mind at the time of the offence, there were limitations to the utilitarian value of the guilty plea. In Du Plooy the court recognised that the level of discount in any case is a matter for the discretion of the sentencer taking into account the significance of the timing and circumstances of the tendering of the plea of guilty, the practical consequences of the plea and any related matters (paragraph 26). In Spence v HMA 2008 JC 174 the court observed that an option available to an accused who had appeared on petition was to give intimation to the Crown under section 76 of the 1995 Act of his intention to plead guilty and his desire to have his case disposed of at once. In these circumstances the court observed:

"If a clear indication of an intention to plead guilty is given during that period (and is adhered to), we would expect that a discount in the order of one-third might be afforded".

As we have observed it was conceded that in this case no such indication was given to the Crown and we would remind practitioners of the advantage of using section 76 in cases where an accused wishes to plead guilty to a lesser offence. Although the plea of guilty in this case was tendered at the second preliminary hearing, the accused was not present at the first preliminary hearing which was continued after the advocate depute informed the court that "it was more than likely that the case was capable of resolution". The plea of guilty was thus tendered on the first occasion on which the appellant was present in court following the service of the indictment. On that basis and taking into account the limited utilitarian value of the guilty plea, in the particular circumstances, mentioned by the sentencing Judge in his report, we consider that the appropriate discount in this case is 20 percent.

[5] In the result we have concluded that the sentence selected by the sentencing Judge as the custodial part of the extended sentence was correct and for the reasons stated above we shall refuse this appeal.