Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 110

HCA/2016/000502/XC

Lord Menzies

Lord Turnbull

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL AGAINST SENTENCE

by

WILLIAM DAVIDSON

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  C M Mitchell;  Faculty Services Ltd (for Ward & Co, Perth)

Respondent:  A Forbes AD;  Crown Agent

8 November 2016

[1]        The appellant was indicted before a sheriff and jury at Perth Sheriff Court on a charge that, on 26 October 2015 at newsagents’ premises in Perth he did, with his face masked, assault an employee there, demand money from him, press a knife against his body and threaten to stab him and did rob him of £1,172 or thereby of money.

[2]        The first diet for the proceedings on that indictment was stated to be 2 August 2016 and the trial diet was at a sitting which was to commence on 15 August 2016.

[3]        The sheriff having taken the appellant’s plea of guilty to the charge at the first diet, continued the matter for reports to be obtained and on 30 August 2016, he sentenced the appellant to 42 months imprisonment, that being discounted from 48 months imprisonment to reflect the timing of the plea of guilty.  It is against that sentence that the appellant now appeals to this court.

[4]        It was originally suggested that it might have been appropriate for the sheriff in all the circumstances to have imposed a non-custodial sentence but understandably today, Ms Mitchell did not suggest to this court that a non-custodial sentence was appropriate.  Her submissions fell into two parts - first, that the sheriff failed to take adequate account of the appellant’s circumstances and accordingly that the starting point of 48 months imprisonment was excessive, and second, that the sheriff’s discount of 6 months was inadequate having regard to the utilitarian value of the plea being submitted at the first diet and indeed having regard to the fact that the appellant’s solicitors wrote to the sheriff clerk at Perth by letter dated 19 July 2016 intimating that the appellant would be pleading guilty to the charge at the first diet on 2 August 2016.

[5]        With regard to the first of these arguments, it was submitted that the appellant had been at rock bottom when he committed this offence.  He was, as appears from the Criminal Justice Social Work Report, a long-term heroin addict, his addiction to heroin beginning in the late 1990s and his drug problem was exacerbated after a serious road traffic accident in 2006 which resulted in the appellant suffering from depression and post-traumatic stress.  He lived a hermit-like existence and had incurred debts to his electricity suppliers as a result of which there had been no electricity in his house for some three years.  We were told that since this incident, the appellant has accessed all the appropriate services which he had not accessed before and he was taking advantage of the support offered, as a result of which his health was improving, he was no longer addicted to heroin and he was seeing his sisters and family.  In light of all of this information which was before the sheriff including a letter from the Tayside Substance Misuse Service and from a worker at Anchor House in Perth, it was submitted that a shorter starting point than 48 months would have been appropriate.

[6]        We have considered what has been submitted about the appellant’ s circumstances.  However, this was a serious offence.  The sheriff tells us in his first report to this court that the complainer was working in the shop on the evening of 26 October 2015 and he was on his own in the shop when he felt someone behind him and turned round to see the appellant standing beside him.  The appellant was wearing black gloves and had a scarf covering his face.  The appellant told the employee to open the till.  He pressed a brown handled knife which was approximately 5-6 inches in length into the middle of Mr Ferguson’s back.  The appellant then told him “you have five seconds to open the till or I’ll stab you”.  The appellant commenced counting down from five.  The employee felt the point of the knife press into his back as more pressure was applied.  He feared for his life and immediately keyed the access code to open the till.  The till opened on the second attempt.  The appellant grabbed the cash in the till which amounted to £1,172.  He then left the counter area and walked quickly to the front door before leaving.  The employee was scared and fearful of the appellant.  He ran to the front door and locked it and pressed the panic alarm for the shop telephoning the police and contacted his manager.  This was clearly a very frightening and upsetting experience for the shopkeeper and indeed this fact was acknowledged by Ms Mitchell in her submissions to us today.

[7]        Any robbery of commercial premises is viewed very seriously by this court and it appears to us that this did not fall towards the bottom end of the scale of such robberies.  A large knife was actually presented and pressed against the employee in the shop.  We acknowledge the various difficulties which faced the appellant but in our view it cannot be argued that the starting point of 48 months was excessive in the circumstances of this case.  We therefore reject the first submission made to us today.

[8]        With regard to the second submission concerning discount, we were referred to the letter dated 19 July 2016 which was submitted about two weeks before the first diet and thereafter a plea of guilty being tendered on the first diet.  We do not wish to give the impression that there is a rigid table or scale of discounts which must be given in every case.  As was acknowledged by Ms Mitchell in her submission to us, the question of discount is a matter involving the trial sheriff or trial judge’s discretion.  However, having regard to the letter of 19 July 2016 and to the fact that this may or may not have been drawn to the sheriff’s attention when he sentenced the appellant, we are persuaded that in the particular circumstances of this case a discount of one eighth, which is what the discount amounted to in this case, was inadequate.  For this reason we will quash the sentence of 42 months imposed by the sheriff and substitute therefor a sentence of 36 months, that being effectively one quarter, therefore the headline sentence will remain of 48 months, a discount of 25% will be deducted and accordingly the resulting sentence will be 36 months rather than the 42 months imposed by the sheriff.