McMahon v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Turnbull |
| Judgment Date | 02 February 2021 |
| Neutral Citation | [2021] HCJAC 14 |
| Court | High Court of Justiciary |
| Docket Number | No 20 |
[2021] HCJAC 14
Lord Menzies and Lord Turnbull
Advocate (HM) v McGovern [2007] HCJAC 21; 2007 JC 145; 2007 SLT 331; 2007 SCCR 173
Harkin v Brown [2012] HCJAC 100; 2012 SLT 1071; 2012 SCCR 617; 2012 SCL 923
Justiciary — Sentence — Discount for guilty plea — Accused pled guilty at preliminary hearing to offence with minimum five-year custodial sentence — Judge refused to discount six-year sentence where offence attracted a minimum sentence — Whether sentence habile to discount — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 196
Ronald McMahon was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with having possession of a disguised firearm in contravention of sec 5(1A)(a) of the Firearms Act 1968. He pled guilty in the High Court of Justiciary at Glasgow at a preliminary hearing on 26 November 2020 and was sentenced by Lady Stacey to a six-year custodial sentence. The appellant appealed against the sentence on the ground that it was excessive by reference to the refusal of discount.
Section 196(1) of the Criminal Procedure (Scotland) Act 1995 (cap 46) provides that, when determining the appropriate sentence or other disposal or order where an offender has pled guilty, the court shall 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. Section 196(2) provides for restricted discounting of sentence where the offender has been convicted on indictment of a third drug trafficking offence.
Section 5(1A)(a) of the Firearms Act 1968 (cap 27) provides, inter alia, that a person commits an offence if they possess a firearm which is disguised as another object. Section 51A provides, inter alia, that the minimum sentence for a contravention of sec 5(1A)(a) for an offender who was aged 21 years or over when he committed the offence is five years' imprisonment, unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify not imposing such a sentence.
The appellant pled guilty at a preliminary hearing in the High Court of Justiciary to having a disguised firearm, namely a stun gun which was disguised as a mobile phone. He had previously submitted a letter offering to plead guilty to the Crown shortly before he was indicted. It was conceded that there were no exceptional circumstances. He was 57 years old and in poor health. He had a bad record of previous offending including previous High Court convictions. The sentencing judge selected a six-year custodial sentence which she refused to discount, indicating that, as the offence attracted a minimum sentence, it was not habile to discounting and noting that there was no reference to the Firearms Act 1968 in sec 196(2) of the 1995 Act. The appellant's note of appeal did not challenge the selection of a headline six-year custodial sentence, but contended that the period in excess of the minimum sentencing period ought to have been discounted.
On appeal, it was argued for the appellant that discount was applicable to the whole of the sentence and, if any discount took the resultant sentence below the statutory minimum sentence, then the appropriate sentence to be imposed would be the statutory minimum. It was further argued that there was a utilitarian value to the plea and that, while the appellant could not benefit from the full discount which might otherwise have been applied, the sentence that ought to have been imposed was one of five years' imprisonment, being the minimum sentence, discounted from six years' imprisonment.
Held that: (1) the sentencing judge erred in concluding that it was not open to her to apply a discount where the resultant sentence was in excess of the minimum period laid down by Parliament for that offence, with sec 196(1) applying generally, including to offences for which...
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