Gemmell v HM Advocate, [2011] HCJAC 129
Citation: Gemmell v HM Advocate, [2011] HCJAC 129
Rule of thumb: Is the punishment given out for criminal offences completely at the free discretion of the Judge? No, there is a legal science behind all the sentence discounting factors , and if there are errors in the Judge’s approach then it can be appealed, albeit there is some discretion within that once the Judge is in the right ballpark of what the punishment is supposed to be – however it is the duty of the Lawyer to make sure that the Judge is within the right parameters of what the punishment should be.
Judgment:
‘V Conclusions: Sentence discounting process: [27] I think that for the purposes of these appeals it is useful to analyse the discounting process in three stages, namely (1) to decide what the sentence would be if no question of a discount arose; (2) to decide whether there should be a discount, and (3) if so, to decide what the amount of it should be. Headline sentence: [28] In deciding what the sentence would otherwise have been, the court should apply the normal, well-established principles of sentencing, having regard to the circumstances of the offence and factors such as the gravity of the offence, the accused's record, the need to protect the public, and so on. Discretionary allowance of a discount: [29] The wording of sec 196 of the 1995 Act indicates that the decisions whether to allow a discount and, if so, what discount to allow, remain a matter for the discretion of the sentencer. This has been repeatedly emphasised by this court ( cf Will v HM Advocate ; RB v HM Advocate ; HM Advocate v Forrest ; Docherty v McGlennan ; Tennie v Munro ; Charlotte v Fraser ). [30] At the hearing in these appeals, it was said more than once that by reason of an early plea an accused was ‘entitled to’ a discount. That is a careless use of language; but it reflects an approach that is prevalent in certain courts of first instance. From the many appeals that we hear in this court, and from a wealth of anecdotal evidence, it is apparent that in some courts discounts of one-third are being allowed for early pleas as a matter of routine. [31] A superficial reading of the decision in Du Plooy may have left sentencers in the lower courts with the impression that discounts are there for the asking. It may be that the observations of this court in Spence v HM Advocate have created a climate of expectation among practitioners. So it is opportune to repeat that an accused is not entitled to any particular discount in return for a plea of guilty. The level of discount, if any, is and must always be a matter for the discretion of the sentencer ( Du Plooy , paras 7, 26). [32] Nevertheless, the court's discretion is not wholly unfettered. In view of the principles on which discounting is based, and by clear inference from sec 196 , there will be cases of early pleas in which a refusal to allow any discount at all would be perverse. Moreover, even in a discretionary matter such as this, it is desirable that the court should exercise its discretion in accordance with some broad general principles. By means of such principles, sentence discounting will not be a haphazard exercise but will instead reflect a common understanding of sentencers and practitioners. Justification of discounting: [33] The statutory idea of sentence discounting for an early plea is not an aspect of mitigation. It is based on the objective value of an early plea in the administrative and other costs, and the personal inconvenience, that it saves ( cf Spence v HM Advocate , para 14). [34] The euphemism ‘utilitarian value’ may be thought to give the principle of discounting some ethical content; but sentence discounting is not an exercise in Benthamite philosophy. It is not based on any high moral principle relating to the offence, the offender or the victim. On the contrary, it involves the court's passing a sentence that, in its considered judgment, is less than the offence truly warrants. It is a statutory encouragement of early pleas. In some cases, there is a saving of inconvenience to complainers and witnesses. In a small minority of cases there is a saving in jury costs. There is also a benefit to the criminal justice system in the avoidance of undue delay between arrest and sentencing. But the primary benefit that is realised in every case is the saving of administrative costs and the reduction of the court's workload. The reality is shown in the most recent available figures, those for 2005/2006, on the court costs of cases where there was an early plea of guilty and cases that went to trial. In the High Court in cases where there was a plea of guilty under sec 76 procedure or a plea of guilty at the trial diet, no evidence being led, the average cost per case was £348. Where the case went to trial with evidence led the average cost per case, including juror/reporting costs, was £17,492. In the sheriff court, where there was a plea at the first diet the average costs per case were £129 (solemn) and £86 (summary). Where the case went to trial with evidence led and with one adjournment for reports the average costs per case were £6,720 (solemn) and £1,576 (summary) (Scottish Government, Costs and Equalities and the Scottish Criminal Justice System 2005/06 , p 5). [35] For the same period, the average prosecution costs for a case indicted in the High Court in 2005/2006 were £4,419 where the guilty plea was tendered by way of sec 76 procedure, and £19,269 where there was a trial. The corresponding figures for the sheriff court were £2,276 and £9,347 ( Scottish Government , Costs and Equalities and the Scottish Criminal Justice System 2005/06 , p 6). Early pleas are conducive to savings in defence costs, and therefore in savings to the Scottish Legal Aid Board. In 2009/2010, the Board made 167,201 grants of criminal legal aid at a total cost of £98.1 million ( Annual Report 2009–2010 , pp 6–8). In these respects therefore sentence discounting is a pragmatic way of dealing with an administrative problem and of avoiding public expense. [36] The earliness of the plea is a straightforward matter, but other relevant considerations do not necessarily apply in the individual case and should not be taken for granted. [37] If I am right in my assessment of the justification of sentence discounting, it follows, in my view, that the assessment of the headline sentence and the assessment of any discount are separate processes governed by separate criteria. When the headline sentence is assessed at the first stage of the sentencing process, the sentencer makes a judgment from a consideration of numerous sentencing objectives, such as retribution, denunciation, public protection and deterrence. But when he considers the matter of a discount, the only relevant consideration, in my view, is how far the so-called utilitarian benefits of the early plea have been achieved. That is an objective consideration unrelated, in my opinion, to the moral values on which the headline sentence is fixed. Whether the accused has a serious criminal record, is a continuing danger to the public and is impenitent; or is a first offender, is not a danger to the public and has made amends to the victim, the utilitarian value of the early plea is the same. [38] It follows, in my view, that when the court comes to the second and third stages of its consideration, the two questions to be answered are how early the plea was tendered and the extent to which the tendering of it furthered the objective justifications set out in Du Plooy. [39] That does not mean that the accused's criminal record, the likelihood of his reoffending, the protection of the public and so on are irrelevant considerations. Of course not. But those considerations arise at the first stage when the sentencer decides on the starting figure. [40] So far, I have set out what I consider to be the true basis of sentence discounting and the logical consequences of it. But in our approach to discounting we have also to consider the effects of sentence discounting on public perception; and in particular, its effects on the credibility of the court and its sentencing process. I shall return to that subject. When is a discount allowable?: [41] Although sec 196 of the 1995 Act does not refer specifically to ‘early’ pleas, it clearly implies that when the court considers whether there should be a discount, and if so what it should be, the essential consideration is how early in the proceedings the accused has indicated his intention to plead guilty. In any given case, the discount will be greater the earlier the plea is tendered. What is an early plea?: [42] We have become familiar in this court with the argument that the accused is justified in withholding an early plea yet invoking sec 196 of the 1995 Act where there has been a delay in obtaining Crown disclosure, police statements, forensic reports and the like; or where investigations have been carried out by the defence. This is a specious argument. I repeat what I said in HM Advocate v Thomson and anr : ‘If an accused person has committed the crime charged, he can plead guilty to it at the outset and benefit from his plea by way of discount when the sentence is assessed; or he can defer pleading until he is sure that the Crown have a corroborated case, in the knowledge that a sentence discount may be reduced or refused altogether. That is the choice that he must make. He cannot have it both ways’ (para [27]; cf also my comments in HM Advocate v Graham … para [56]). Therefore if those defending the accused make enquiries to test the strength of the Crown case or to try to strengthen the defence case, they must recognise that, so far as discounting is concerned, time is not on their side ( McKinlay and anr v HM Advocate , para 9). Factors relevant to discount 1. General principle: [43] The amount of the discount in any given case is directly related to the extent of the benefits of it that were identified in Du Plooy . Since there will always be some benefit in an early plea, if only in the administrative benefits that result from it, I find it difficult to imagine circumstances in which an early plea would not entitle the accused to at least a token discount. However, in any given case, no matter how early the plea, it may be that not all of those benefits apply. 2. Saving in jury costs, time and inconvenience: [44] The saving in jury costs and in inconvenience to jurors is a relevant consideration; but it applies in relatively few cases. In 2008–2009, for example, 125,889 persons were convicted in Scotland. Of these, only about five per cent were convicted on indictment. In 2009–2010, of 121,028 persons convicted that percentage was four per cent. In 2010–2011, of 115,398 persons convicted the percentage convicted on indictment was again four per cent. Percentages of around four to five per cent have remained constant throughout the last decade ( Scottish Government ,Criminal Proceedings in Scotland, 2010–11 , pp 12, 13, 28). 3. Sparing complainers and other witnesses from giving evidence [45] This can be a relevant sentencing consideration ( cf Khaliq v HM Advocate ; Sweeney v HM Advocate ; cf R v Millberry , paras 27, 28); but sentencers should bear in mind that complainers and witnesses will not always be vulnerable. In some cases the complainer may not be required to give evidence at all. Moreover, it appears that many complainers wish the trial to proceed, in part because this will lead to their learning more about the offence and the offender ( Sanders, Young and Burton , Criminal Justice , pp 494, 495). Some victims and witnesses may feel that, given the choice, they would prefer to give evidence rather than see the accused receive a sentence discount (Ashworth, Sentencing and Criminal Justice, p 172; Henham , ‘ Bargain Justice or Justice Denied? Sentence Discounts and the Criminal Process ’, p 537). [46] In many cases, particularly those prosecuted on complaint, the witnesses will be police officers. In other cases much of the evidence may come from experts. An early plea may have some utilitarian value for such witnesses, in the sense that they can get on with other useful work; but it can scarcely be said that they are spared an ordeal. In my opinion, an early plea in such cases can attract at most a token discount. [47] In some cases, the idea of sparing the victim from the ordeal of giving evidence may be irrelevant; for example, in breaches of preventive statutes or social security frauds. Factors not relevant to discount – but relevant to the general extent of punishment: 1. Strength of the Crown case [48] Several decisions of this court establish that the strength of the Crown case is a factor that restricts the discount. Having reconsidered the matter in these appeals, I have come to the view that this approach is unsound. For the court to refuse or to minimise a discount on this basis is for the court to decide what the outcome would have been if the accused had gone to trial. In my view, there are dangers in that approach. It is the common experience of practitioners that criminal trials regularly produce the unexpected. Moreover, it is undesirable in my view that in determining the sentence the court should become involved in an appraisal of the strength of the Crown case based mainly on the Crown narrative. Experience shows that Crown witnesses do not always live up to their precognitions and that on occasions even the strongest cases come to grief. I also agree with the point made by Lord Eassie that in many cases the strength of the Crown case results from the accused's frankness with the police. In some cases, without the accused's own admission, the Crown would be in difficulty in finding corroboration. It is illogical, in my view, to withhold a discount from the accused in such circumstances. I conclude therefore that the strength of the Crown case ought not to be treated as a factor influencing the amount of the discount. 2. Previous convictions and public protection [49] For the reasons that I have given, I consider that at the second and third stages of the sentencing process, the logic of sec 196 of the 1995 Act applies whatever the accused's previous record may be. I agree with the view of the Supreme Court of Victoria ( R v Tasker , para 25) and disagree with the decision on this point in Horribine v Thomson (para 7). In my view, Horribine v Thomson should be overruled on this point. The question of previous convictions raises the related question of the relevance of the public protection element in a sentence. I shall discuss this point separately when considering how discounts are to be applied 3. Assistance to the authorities [50] In Du Plooy (paras 22, 23), the court considered the significance of the accused's having assisted the authorities after the commission of the crime, but obscured the issue by considering it in the context of contrition (para 22). The court acknowledged that the conduct of the accused in such ways was regularly taken into account and might be significant in reducing the sentence, but thought it preferable that these matters should be taken into account along with the plea of guilty when the court was arriving at the discount (para 23). I think that the reasoning of the court on this point is confused. Any assistance that the accused may have given to the police or the Crown in the investigation and prosecution of the offence is properly a matter of mitigation and, as such, a matter to be taken into account in the assessment of the headline sentence. On the other hand, in my opinion, to spare witnesses the ordeal of giving evidence is a matter that goes to the question of the discount. It should not be taken into account as both mitigating the headline sentence and increasing the discount, otherwise there is double counting. 4. Remorse: [51] An offender's remorse cannot, in my opinion, be a proper justification for a sentence discount ( Balgowan v HM Advocate , para 3; cf case commentary, Criminal Law Bulletin , pp 5, 6). Where sec 196 of the 1995 Act applies, it applies regardless of whether the accused has shown remorse. My own view is that there is seldom any sure criterion for assessing whether the accused is truly remorseful; but where there is convincing evidence of remorse, the sentencer may make allowance for it, as an aspect of mitigation, in deciding on the starting figure (Sentencing Guidelines Council, Reduction in Sentence for a Guilty Plea , para 2.4; Ashworth , Sentencing and Criminal Justice , p 173; cf R v Barney ; R v Delucca ).Unco-operative behaviour:: [52] In Leonard v Houston the court held that an offender's unco-operative behaviour following his tendering of a guilty plea was a factor to which a sentencer could have regard. I cannot regard this as a relevant factor unless the effect of such behaviour is to nullify the administrative benefits of the plea. How is a discount applied? Construction of sec 196: [53] A central question in these appeals is whether a sentence discount should be applied across the board or whether individual elements in the headline figure should be ring-fenced from the application of the discount. The cases to which I have referred are unanimous in deciding that discounting cannot apply to the public protection element in the sentence. All of these decisions can be traced back to para 19 of Du Plooy . [54] In my opinion, these authorities are in error. I reach that view on an interpretation of sec 196 of the 1995 Act and on a review of some practical considerations. [55] Section 196(1) entitles the court to allow a discount ‘in determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence.’ It does not limit the scope of the discount in any way. The straightforward reading of the section is that the discount, if allowed, applies to the whole sentence. In my view, there is nothing in the wording of sec 196 to suggest that when the conditions of the section are fulfilled, the court should disaggregate any individual element from the starting figure and exclude it from the application of the discount. [56] That interpretation of the section is in keeping with the general view that I have expressed as to the theory that underlies sentence discounting. [57] Moreover, if the court should reduce the discount because of a factor that it has taken into account as an aggravating factor in its assessment of the headline sentence — the accused's criminal record, for example — there will be double counting, unfairly to the disadvantage of the accused. [58] The view that I have taken on an interpretation of the legislation is fortified by practical considerations. Since so many diverse factors may be involved in the assessment of a sentence, the attribution of precise numerical values to individual elements in the sentence is to my mind an artificial exercise. That is shown, I think, in cases where this court has had to decide for itself what part of a sentence appealed against was referable to public protection (eg Weir v HM Advocate ). [59] The assessment of the headline sentence is not a matter of precise arithmetical calculation. It involves the making of an overall judgment from a consideration of numerous factors based on judicial experience. It is a process described in the Australian courts as that of ‘instinctive synthesis’ ( cf Markarian v R ) and seen in the Canadian courts as a delicate art based on competence and expertise ( R v M ; R v LM ). In my view, the same process applies to the assessment of a sentence discount. On the interpretation that I favour, the sentencer should apply sec 196 by deciding what sentence is appropriate in the circumstances of the case and then simply applying the discount, if any. In this way the sentencer is saved the effort of making complex calculations, particularly in a busy sheriff court, and the resulting sentence represents a true exercise of judgment without a spurious appearance of arithmetical exactitude. Is the public protection element ring-fenced? [60] It follows from my interpretation of sec 196 of the 1995 Act that that part of the sentence that is referable to the protection of the public should not be excluded from the application of the discount. [61] The contrary approach taken on this point in Du Plooy (para 19) and in subsequent cases (eg Rennie v Frame ) rests on the view that the protection of the public must not be compromised by any discount. But we already have a penal policy in Scotland in which the protection of the public from dangerous offenders is expressly compromised by statute. [62] Part I of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (cap 9) (‘the 1993 Act’) provides for the early release of prisoners on licence. A short-term prisoner, that is to say one who is serving a sentence of less than four years, is entitled, whether he is dangerous or not, to be released after he has served half of his sentence. His release is unconditional unless he is made subject to a supervised release order (1993 Act, sec 1(1) ). [63] A long-term prisoner is entitled to be released on licence after he has served two-thirds of his sentence and must be released after serving half of it if the Parole Board so recommends (1993 Act, sec 1(2), (3) ; cf Renton and Brown, Criminal Procedure , paras 23.13 et seq ). [64] The release of a prisoner under these provisions does not depend on any consideration of public protection. A prisoner who behaves well will be given early release even though he is as great a danger to the public when he leaves prison as he was when he entered it. The serial road traffic offender who persistently drives while disqualified and uninsured is familiar in every sheriff court. Such an offender is a danger to the public and is sentenced on that basis. Sooner or later such an offender is given the statutory maximum sentence of 12 months' imprisonment. In such a case the early release of the offender under the 1993 Act after six months may well compromise the safety of the public. [65] There are of course certain safeguards. In 2008/2009, the Parole Board considered the cases of 212 individuals on non-parole licences who were freed automatically under the provisions of the 1993 Act and whose behaviour in the community caused concern. The Parole Board recommended that 150 of those licensees should be recalled to custody ( Annual Report 2008–09 , pp 13, 14). In 2009/2010, the Parole Board considered a further 193 such cases and recommended that 123 licensees should be recalled to custody ( Annual Report 2009–10 , p 14). Problem of extended sentences [66] Notwithstanding the view that I have expressed in relation to the public protection element in a sentence ( supra ), I have come to the view that where an extended sentence is imposed, the extension period should not be subject to discounting. [67] Discounting under sec 196 of the 1995 Act is open to the sentencer in relation to ‘the sentence or other disposal or order’.Section 210A of the 1995 Act, added by the Crime and Disorder Act 1998 (cap 37), provides for the passing of an extended sentence on a sexual or violent offender where the requirements of the Act are met. An extended sentence is defined as a sentence of imprisonment that is the aggregate of the custodial term and the extension period (1995 Act, sec 210A(2) ). The extension period of the sentence is imposed solely for the protection of the public (1995 Act, sec 210A(1)(b) ). The section treats the custodial period and the extension period as together constituting ‘the sentence’. On that basis, it could be argued that the aggregate sentence is the sentence to which any discount should be applied in terms of sec 196(1) ; or if it is not to be so regarded, is another form of ‘disposal or order’. However, I have come to the view that, where discounting is concerned, the extension period is governed by its own special provisions. Section 210A provides, inter alia , that the extension period is a period during which ‘the offender is to be subject to a licence and which is … of such length as the court considers necessary for the purpose mentioned in [ section 210A(1)(b) ]’, that is to say ‘the purpose of protecting the public from serious harm from the offender.’ In my view, where the sentencer is satisfied that an extended sentence should be imposed, the obligation to impose whatever extension period is ‘necessary’ for the purpose of protecting the public excludes the possibility of its being reduced to a period that ex hypothesi is not sufficient for that purpose by way of a discretionary discount. I agree with the view of Lord Osborne on this point. An extended sentence is therefore, in my view, an exception to the general principle of sentence discounting that I have formulated. Statutory minimum sentences: [68] The principle of sentence discounting is inevitably qualified by the principle that the court cannot alter what statute requires. A court cannot therefore discount a statutory minimum sentence except in the specific case of sec 196(2) of the 1995 Act which permits a sentencer to reduce the statutory minimum, in certain cases under the Misuse of Drugs Act 1971 (cap 38), by up to one-fifth’. Lord Justice Clerk Gill at 27-67
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