Criminal court: Sentencing deconstructed

There are a few cases this sultry summer to whet the appetite and gloss over when having a staycation in the back garden, but first I should mention the new Scottish Sentencing Council guideline.

Guideline on the Sentencing Process

I don’t know if those of you who appear in court have ever thought during an idle moment what goes through the sentencer’s mind before passing sentence.

In the bad old days the defence agent would barely have sat down after delivering a carefully crafted plea in mitigation, before hearing the Sphinx-like incumbent on the bench intone “Six months’ imprisonment” without further explanation, and you knew you would have to face that awkward post-court meeting in the cells with the client seeking answers for his inexplicable situation.

Fear not, from 22 September you can rely not only on a few words of explanation to accompany the sentence but also seek solace that an eight stage process has been completed before the sentence is passed 10 seconds after you stopped speaking. A longer delay than that, in the summary courts at least, was always perceived as indecision, although past masters such as Sheriff Irvine Smith QC used pregnant pauses and the theatrical dynamics of voice to bring the accused, and more often the accused’s mother, to a frenzy before delivering the six months punchline.

Back in the noughties, when I was a judicial trainer, I attended a training event in Northern Ireland designed to school judges in the intricacies of the Criminal Justice Act 2003 sentencing process. A flow chart was provided which was a helpful aide memoire when the inevitable appeal was marked. The scribbles on the chart were there for all to see where the methodology of the process had gone awry – often due to poor arithmetic skills, as their Lordships struggled through a procedural minefield.

These guidelines explain the whole process and run to 19 pages, but they are fairly intuitive.

• The headline sentence (the one that is never imposed)

1. Assess the seriousness of the offence: culpability (including age/maturity of offender) and harm caused.

2. Select the sentencing range, using any specific guidelines there might be.

3. Identify aggravating and mitigating factors – beware that the voluntary consumption of alcohol and drugs has been nudged from not being a mitigating factor into item 9 of 11 “non-statutory” aggravating factors (cf s 26 of the Criminal Justice and Licensing (Scotland) Act 2010, which put in statutory form the law stated in Brennan v HM Advocate 1977 JC 38).

4. Determine the headline sentence.

• Other considerations

5. Take into account a plea of guilty.

6. Consider time spent in custody.

7. Consider ancillary orders.

• Impose sentence

8. Pass the sentence and give reasons.

Although in the past I have been seen as perhaps inhabiting the opposite end of the sentencing spectrum from Genghis Khan, I have been all for a better consistency of outcome and timeous reasons for the sentence passed.

In future, when the depute fiscal reads unabridged from the police report, I will scribble down the numbers 1 to 8 and note key points, remembering always that if a plea of guilty has been tendered the headline sentence is the dividend, the plea element the divisor, and the outcome the quotient. Punters understand this, as they know that no one ever pays the full price for a sofa from a well-known furniture warehouse.

On the other hand if the case goes the full distance, the witnesses are adduced, the accused observed and possibly heard in evidence and the whole enormity of events revealed, the sentence imposed may exceed the theoretical headline one.

Murder appeals

There are a few appeals in which to consider the principles deployed by the Appeal Court.

MacDougall and Smith v HM Advocate [2021] HCJAC 32 (22 June 2021) and Smith v HM Advocate [2021] HCJAC 35 (1 July 2021) both arise from murder convictions.

In MacDougall the accused were convicted of the murder by stabbing of a female. The first appellant, a male, as actor was sentenced to life imprisonment with a punishment part of 23 years; the second appellant, a female, to life imprisonment with a punishment part of 21 years reduced to 20 years and two months to reflect a prior period on remand. Each had incriminated the other at trial and neither had given evidence. The deceased was killed near to the house of a drugs dealer and there was a drugs background to the circumstances. The knife had been produced by Smith from her handbag and MacDougall was seen on top of the deceased as if attacking her. The conviction appeal centred on an apparent misdirection as to whether Smith could have been the actor, although there was ample evidence of prior concert and no direct evidence to support that analysis. Similarly Smith’s conviction appeal was refused.

So far as the sentence appeals were concerned, the court was of the view that the precedents quoted were more serious and sinister than the present case, and reduced the punishment parts to 20 years for the first appellant and 18 years reduced to 17 years and two months for the second.

In Smith the appellant had been convicted of murder by stabbing the deceased in the neck. The conviction appeal focused on the withdrawal of provocation from the jury and raised the question about displaying horrific images to the jurors. The appeal was refused as the appellant had only been subject to verbal abuse, had come to the scene armed with a knife and suddenly stabbed the deceased fatally. The trial judge said that without the appellant’s evidence it was not clear what was in his mind at the time. The punishment part of 18 years which had been imposed was wisely not appealed. The court cautioned against the repeated showing of the video and suggested that such evidence should be the subject of a considered case management decision.

Comparative justice

A reference back to the Appeal Court by the Scottish Criminal Cases Review Commission, Armstrong v HM Advocate [2021] HCJAC 34 (24 June 2021) concerned the principle of comparative justice.

The appellant, who was 24 at the time, was convicted of attempting to murder the complainer in 2018 by assaulting him to his severe injury, permanent disfigurement, permanent impairment and danger to life.

He had been sentenced to an extended sentence of 13 years of which 10 were custodial. There had been five co-accused, four of whom had been convicted of attempted murder. Their ages ranged from 16 to 21. Sentences of between 10 and 14 years were imposed with custodial terms of seven to 11 years.

The appellant had been a member of a gang; the complainer was a member of a rival gang. When he went with members of his gang to the appellant’s house and damaged it, the appellant and his co-accused gave chase. The complainer fell and was brutally attacked, struck with a metallic object by the appellant and punched and stamped on when on the ground. The appellant had 18 previous convictions and had been drinking and taking cocaine prior to the incident. He had been the first to catch the complainer.

Three co-accused had their sentences reduced on appeal on 7 January 2000: Thomson, Dodds and Renton v HM Advocate, unreported, where the court in its ex tempore opinion said inter alia that there was no basis for extended sentences.

An appeal by the appellant subsequent to this decision was refused as no comparative justice point was taken. Their Lordships were concerned that the point had not been raised earlier and that the appeals had not been heard at the same time. Reference to English Sentencing Council Guidelines (2009) would have classed the case as a level 3 attempted murder with a starting point of 15 years.

In terms of the draft guideline by the Scottish Sentencing Council on Sentencing Young People, regard has to be made for their youth and immaturity and it was not surprising the teenage co-accused had their sentences reduced. The present case was more similar to Renton’s, who was 21 at the time and had dropped a paving slab on the complainer as a coup de grace. The court regarded his sentence of seven years on appeal as extremely lenient. It considered that in the present case an extended sentence was justified as Armstrong had been the prime mover and had an extensive record, but reduced the overall sentence to 11 years with a custodial element of eight years.

These cases show the attitude of the Appeal Court and their reasons for the sentences imposed. They appear not to be slow to reduce sentences if excessive, and sentences of co-accused must be compared closely to ensure justice in the round.

Dangerous driving

In a lengthy opinion the Sheriff Appeal Court dealt with a case which arose out of a driver hitting the central reservation barrier of the A74(M). The case is Wilson v Procurator Fiscal, Dumfries [2021] SAC 4 (8 April 2021). Fortunately neither the appellant nor his wife were injured in the incident, nor were other vehicles damaged.

Police arrived on the scene and noted 30m of the central crash barrier were damaged. The appellant approached the police and said he had crashed the car and ended up on the hard shoulder. He later confirmed he had been the driver when formally required to do so by the police under s 172 of the Road Traffic Act 1988. He was cautioned and told the officers he had been driving up from Manchester Airport on return from holiday and must have dozed off. He was then charged.

The sheriff held the statement was admissible, as suspicion did not properly crystallise until the appellant indicated he had fallen asleep. The appellant did not give any evidence. The Appeal Court confirmed the statement was admissible, as when the appellant admitted being the driver it was not clear whether an offence might have occurred, or what sort. The appellant was then cautioned and asked a neutral question from which an admission was made.

The appellant had been fined £500 and disqualified for a year until he resat the full driving test.

The moral, as ever, as per your insurers, is to say nothing after an accident other than comply with the statutory request.