Du Plooy v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 03 October 2003 |
| Neutral Citation | 2003 SCCR 640 |
| Date | 03 October 2003 |
| Docket Number | No 1 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-General (Cullen of Whitekirk), Lord MacLean, Lord Osborne
Justiciary - Sentencing - Plea of guilty - Basis of allowance in sentence for guilty plea - Form of allowance in sentence for guilty plea - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 196(1)
Section 196(1) of the Criminal Procedure (Scotland) Act 1995 provides that a court in determining the sentence to be passed or the disposal or order to be made in respect of an offender who has pled guilty may take into account the stage in the proceedings at which the offender indicated his intention to plead guilty and the circumstances in which that indication was given.
Held that: (1) in determining the appropriate punishment of an accused who pleads guilty, not only the utilitarian value of the plea of guilty but also the implications of the accused's acceptance of guilt fell to be taken account of (para 14); (2) the relevant provisions applied equally to solemn and summary proceedings (para 15); (3) the relevant factors for which allowance could be made included saving of public money and court time, avoidance of inconvenience to witnesses and in certain types of cases avoiding additional distress being caused to witnesses by their having to give evidence or be further precognosced (para 16); (4) an accused's true contrition demonstrated, inter alia, by assistance or information provided to the authorities fell to be taken account of (paras 22, 23); (5) where a plea of guilty and related matters called for an allowance, the sentencer should use a distinct account in the process of arriving at the appropriate sentence and should state in court the extent to which the sentence had been discounted (para 25); (6) such discount should not normally exceed a third of the sentence which would otherwise have been imposed (para 26); and causes continued for a consideration of the merits.
Tennie v MunroUNK 1999 SCCR 70 commented on.
Devonne Du Plooy, Francis Robert Alderdice,William Crooks and David William O'Neil appealed against sentences imposed in their respective cases. Each had plead guilty and appealed on the grounds, inter alia, that insufficient allowance had been made for the plea of guilty in the sentence that was imposed.
The causes called before the High Court of Justiciary, comprising the Lord Justice-General (Cullen of Whitekirk), Lord MacLean and Lord Osborne for a hearing, on 4 June 2003, on the general issue as to the basis of and scope for allowance in sentencing of accused persons in respect of the fact of a guilty plea and the form such an allowance might take.
Cases referred to:
Advocate (HM) v ForrestUNK 1998 SCCR 153
BillamWLRUNK [1986] 1 WLR 349; [1986] 1 All ER 985; (1986) 8 Cr App R (S) 48
Byrne (1997) 1 Cr App R (S) 165
Cameron v RUNK (2002) 187 ALR 65
Cleishman v Carnegie 1999 GWD 36-1764
CostenUNK (1989) 11 Cr App R (S) 182; [1989] Crim LR 601
Docherty v McGlennan 1998 GWD 4-176
MarchUNK (2002) 2 Cr App R (S) 448; [2002] Crim LR 509
MillberryWLRUNKUNK [2003] 1 WLR 546; [2003] 2 All ER 939; (2003) 1 Cr App R 25
R v Hussain (2002) 2 Cr App R (S) 25
R v Larmour [2001] NIECA 21
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Strawhorn v McLeodUNK 1987 SCCR 413
Tennie v MunroUNK 1999 SCCR 70
Wojciechowski v McLeodUNK 1992 SCCR 563
Young v HM AdvocateUNK 1995 SCCR 418
At advising, on 3 October 2003, the opinion of the Court was delivered by the Lord Justice-General (Cullen of Whitekirk)-
Opinion of the Court- [1] For some time it has been apparent that it would be desirable for the court to take the opportunity to give guidance, under reference to sec 118(7) of the Criminal Procedure (Scotland) Act 1995 ('the 1995 Act'), as to the basis of, and scope for, an allowance in the sentencing of an accused in respect of the fact that he has pled guilty, and the form which such an allowance might take. These four appeals against sentence have been selected as typical examples of cases in which the appellant maintains that insufficient allowance was made for his plea of guilty in the sentence which was imposed. The appellants Du Plooy and Alderdice pled guilty to charges on indictments under sec 76 of the 1995 Act. The appellants Crooks and O'Neil pled guilty at their trial diets. At the request of the court written arguments were submitted by each of the appellants and, for the public interest, the respondent. The court was addressed by counsel for the appellants and by the Lord Advocate. We would like to express our gratitude to them for their assistance, which included examining not only the position in Scotland, but also the practice followed in other jurisdictions, and in particular England and Australia.
[2] It is convenient to take as our starting point the terms of sec 196(1) of the 1995 Act, which states:
'(1) 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, a court may take into account-
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(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
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(b) the circumstances in which that indication was given'.
This provision is derived from sec 33 of the Criminal Justice (Scotland) Act 1995 (cap 20). The enactment of that section arose out of the decision in the appeal against sentence in Strawhorn v McLeod. In that case the appellant had intimated a plea of guilty six days before the trial diet. In his report to the appeal court the sheriff stated:
'The sheriffs in this court are of opinion that an early plea of guilty, which obviates the waste of time and expense involved in the unnecessary attendance of witnesses, and in the disruption of their other arrangements, merits in appropriate cases a discount from what would otherwise be the appropriate sentence. In this case the arrangements made for the trial had to be unmade. As far as police witnesses were concerned their countermanding came too late'.
In the circumstances the sheriff declined to make any discount for the fact that the appellant had pled guilty. The practice described by the sheriff was criticised by the appeal court, which reduced the fine which he had imposed on the appellant. In its opinion, which was delivered by the Lord Justice-Clerk (Ross), two main criticisms were stated. The first was that the practice involved a form of plea-bargaining. The court stated (p 415):
'In one sense an accused person is being offered an inducement to plead guilty early and in our opinion no such inducement should be offered to accused persons. In this country there is a presumption of innocence and an accused person is entitled to go to trial and leave the Crown to establish his guilt if the Crown can. It is wrong therefore that an accused person should be put in the position of realising that if he pleads guilty early enough he will receive a lower sentence than he would otherwise receive for the offence'.
The second criticism was that the result of the practice 'must necessarily be to disable the sheriff from exercising his discretion fully and freely in a particular case'. On the whole matter the court stated: 'In the present case it is therefore plain that the sheriff, in approaching the matter of sentence, has had regard to an irrelevant consideration, namely that in his view the appellant did not plead guilty as soon as he might have done'.
[3] A number of points may be noted about sec 196(1). First, the subsection indicates that the taking into account of the matters mentioned in paras (a) and (b) may have a bearing, according to the circumstances of the case, not only on the extent of a sentence but also on the type of disposal or order which is made.
[4] Secondly, in enabling the sentencer to take into account the stage at which, and the...
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