Avoiding “Free Crimes”: Consecutive Sentencing and Headline Tariffs for Domestically-Aggravated Attempted Murder – Commentary on HMA v Budge [2025] HCJAC 27

1. Introduction

In HM Advocate v Budge the Scottish Appeal Court (High Court of Justiciary) was asked by the Lord Advocate to review the custodial sentences imposed on William Budge for three domestically-related offences, the most serious being a brutal attempted murder using a motor vehicle. The sentencing judge at first instance delivered concurrent sentences totalling 7 years and 4 months (after discount) for the attempted murder and lesser, overlapping sentences for earlier incidents of abuse. The Crown contended that the package was “unduly lenient” and also criticised (i) the one-third discount for the guilty plea, (ii) the concurrent structure of the sentences, and (iii) the refusal to impose an Extended Sentence under s.210A of the Criminal Procedure (Scotland) Act 1995.

The Appeal Court (Lord Justice General Lord Pentland, Lord Doherty and Lord Clark) concluded that the original disposal did fall outside the reasonable range. It reset the headline tariff for the attempted murder at 14½ years, affirmed the full one-third discount, but—critically— ordered that the three sentences run consecutively. The result was an ultimate custodial term of 10 years and 10 months, 3½ years longer than that handed down at first instance.

2. Summary of the Judgment

Undue Leniency: The Appeal Court held that the original headline of 11 years (8 years basic plus 3 years for the statutory aggravation) was “unduly lenient” when measured against comparable cases and the extreme facts—two deliberate vehicular attacks, permanent impairment, and the presence of a child.
Re-Calibration of Tariff: A headline of 14 years 6 months was set, with 18 months of that expressly attributed to the domestic-abuse aggravation under the 2016 Act.
Plea Discount: The one-third discount was upheld; obtaining and analysing 1,500 pages of medical records before confirming permanent impairment was deemed a reasonable prerequisite to a meaningful plea.
Sentence Structure: Running the sentences concurrently meant the earlier partner-abuse counts were effectively “for free.” The Court ordered consecutive sentences, emphasising distinct temporal and qualitative separations between the offences.
Extended Sentence: The Court endorsed the judge’s refusal to impose an extended sentence; existing licence conditions could adequately protect the public.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

HM Advocate v Bell 1995 SCCR 244 – the seminal test for Crown appeals: an appeal court may intervene only if the sentence “falls outside the range” reasonably open to the trial judge. This anchored the Court’s threshold inquiry.
Foye v HM Advocate (2003) GWD 34-964 – 10-year sentence where a car was used against police officers. Distinguishing factors: single incident, not domestic, no child witness.
Kelly v HM Advocate [2009] HCJAC 16 – 10-year custodial part (12 yrs headline) plus 6-year extension for a frenzied attack with a saw on an ex-spouse after ramming her car. Demonstrated that 8-year headlines for lethal domestic attacks are at the lower fringe.
Recent unreported sentences: McBurnie (2024) and Hughes (2024). Each attracted custodial parts of 11–14 years (after discount) for similarly aggravated violence. The Court treated these as contemporary comparators pointing upward.
Wishart v HM Advocate 2022 JC 259 – a 6-year sentence for a far less serious incident while driving; used to illustrate that Budge’s conduct was “substantially more serious.”
Gemmell v HM Advocate 2012 JC 223 – guidance on interference with plea discounts: exceptional circumstances are required before an appeal court will tamper with a first-instance decision on discount. Supported leaving the one-third intact.
McGowan v HM Advocate 2024 JC 359 – reiterated proportionality when adding uplift for statutory domestic-abuse aggravations.
Fergusson v HM Advocate 2024 JC 376 – stressed the importance of signalling what sentences would have been for individual charges where cumulo sentences are not used. The Court used this authority to criticise how the sentencing judge rendered charges 1 & 2 “free.”

3.2 Legal Reasoning

The Court’s reasoning unfolded in three linked stages:

Quantifying Gravity and Culpability: Driving a car twice at an incapacitated partner, in front of a young child, was classed as “a determined murderous attack” using a deadly weapon. Permanent impairment, life-changing injuries and psychiatric harm aggravated the harm dimension. Collectively, these facts demanded a headline significantly north of 11 years.
Discount Analysis: Although the guilty plea did not occur at the earliest procedural moment, the Court accepted that disclosure delays prevented defence counsel from responsibly advising on the permanent-impairment aggravation. Hence a fully utilitarian discount of one-third remained justified.
Totality and Separate Punishment: Applying the “free-crimes” doctrine, concurrent sentences for temporally/qualitatively different offences can undermine deterrence and denunciation. Either (i) a cumulo sentence or (ii) consecutive sentences should be used. Here, discreet consecutive terms were chosen.

3.3 Potential Impact

Guidance on Headline Tariffs: The Court effectively set an informal benchmark for vehicular attempted murders aggravated by domestic abuse—14–15 year headlines, with explicit articulation of the statutory aggravation uplift (about 10–15% of total).
Consecutive vs. Concurrent in Domestic Context: Practitioners should expect that earlier, less-serious domestic-abuse counts will either aggravate the principal charge or attract standalone consecutive sentences. Courts will be alert to the optics of offences appearing to go unpunished.
Plea-Discount Nuance: The decision illustrates that delay awaiting relevant disclosure may preserve a maximal one-third reduction. Defence counsel can cite Budge where a “conditional” early plea hinged on outstanding vouching.
Extended Sentence Caution: The Court’s refusal to impose an extended sentence signals that a “high-risk” label in a JSWR is not enough; concrete evidence that ordinary licence conditions are inadequate is essential.

4. Complex Concepts Simplified

Unduly Lenient Sentence: A sentence so low it lies outside the reasonable range open to the trial judge, not merely one an Appeal Court would have set differently.
Headline Sentence: The notional figure before discount for an early plea or mitigation; serves as the baseline for transparency.
Domestic-Abuse Aggravation (Abusive Behaviour and Sexual Harm (Scotland) Act 2016): Statutory mechanism requiring courts to record and enhance sentences for offences involving partners/ex-partners.
Consecutive vs. Concurrent Sentences: Concurrent terms run at the same time; consecutive terms run back-to-back. Choosing concurrent can inadvertently neutralise punishment for some counts (“free crimes”).
Extended Sentence (s.210A): Combines a custodial term with a post-release “extension period” of supervision. It is reserved for cases where ordinary parole licence is insufficient to protect the public.
Discount for Guilty Plea: Scottish courts may reduce sentences (up to one-third) to reflect utilitarian benefits—saving trial time and sparing witnesses. The sooner and more unequivocal the plea, the higher the discount.

5. Conclusion

HMA v Budge clarifies several sentencing principles in the Scottish criminal jurisprudence:

For severe attempted murders with a domestic-abuse backdrop—especially vehicular attacks—headline sentences in the mid-teens are likely to be the norm, with a transparent uplift for statutory aggravations.
Where multiple domestic-abuse offences span years and differ in nature, concurrent sentences risk creating “free crimes.” Courts should either impose cumulative sentences or treat earlier abuse as an aggravating feature of the main charge.
The right to a full one-third discount can survive a lapse of months where disclosure is outstanding and the defence cannot responsibly advise on factual aggravations.
Extended sentences will not be imposed simply because the offender is high-risk; concrete evidence that standard licence conditions are inadequate is required.

Overall, the decision strengthens the Scottish judiciary’s message of zero tolerance for lethal domestic abuse, ensures proportionality between culpability and punishment, and refines procedural clarity around plea discounts and sentence structuring. It will thus be an important citation for prosecutors, defence counsel, and sentencing judges alike.