Introduction

In the landmark case of Crown v Docherty [2024] HCJAC 36, the Scottish High Court of Justiciary addressed critical issues surrounding sentencing practices, particularly cumulo sentencing, in the context of firearms offenses and attempts to pervert the course of justice. The appellant, His Majesty's Advocate, sought to overturn the sentence imposed by the High Court in Glasgow on the respondent, David Docherty, who was convicted of multiple serious offenses, including discharging a firearm and attempting to obstruct justice.

The key issues centered around whether the initial sentence was unduly lenient, whether the court properly adhered to sentencing guidelines, and the appropriate calculation and consideration of time spent on remand. The parties involved were the Crown, represented by the Lord Advocate and the Crown Agent, and the respondent, defended by Graham KC and John Pryde & Co.

Summary of the Judgment

The Court upheld the Crown's appeal, finding the original sentence imposed by the temporary judge to be unduly lenient. The respondent was initially sentenced to a total of 40 months imprisonment for four charges, including culpable and reckless conduct involving a firearm and attempting to pervert the course of justice. The appeal court criticized the temporary judge for underestimating the severity of the offenses, failing to adequately consider relevant sentencing guidelines from England & Wales, and improperly calculating time served on remand.

Ultimately, the court imposed a revised cumulo sentence of 10 years, reflecting the serious nature of the offenses, the respondent's extensive criminal history, and the necessity to protect the public, punish the offender, and express societal disapproval of such behavior.

Analysis

Precedents Cited

The judgment references several key precedents that influenced the court’s decision:

• HMA v Fergusson [2024] HCJAC 22: This case was pivotal as it underscored the importance of cumulo sentencing and the need to consider individual sentences before aggregating them into a total sentence.
• O'Doherty v HMA [2022] HCJAC 31: This precedent addressed the complexity of calculating time spent on remand, especially when it is interrupted by subsequent sentences. The court in Docherty emphasized the need for a more nuanced approach rather than simplistic doubling or halving methods.
• R v Avis [1998] 1 Cr App R 420 and R v Sheen [2012] 2 Cr App R (S): These English Court of Appeal cases provided guidance on sentencing principles relevant to the offenses at hand, particularly in assessing culpability and determining appropriate sentencing ranges.
• HM Advocate v AB, para 13: This case highlighted the disparity between Scottish sentencing practices and English guidelines, reinforcing the need for Scottish courts to consider English guidelines as a cross-check even though the systems differ.

Legal Reasoning

The court's legal reasoning was multifaceted:

• Seriousness of Offenses: The court determined that the offenses, particularly charges 1 and 17, demonstrated a high degree of planning, premeditation, and recklessness. The potential for causing serious harm or death, coupled with the respondent’s attempt to intimidate a police officer, significantly heightened the severity of the crimes.
• Sentencing Guidelines: The temporary judge failed to consult relevant sentencing guidelines from England & Wales, which provide detailed frameworks for categorizing offenses and determining appropriate sentencing ranges. The appellate court emphasized that these guidelines, while not binding, serve as valuable benchmarks for ensuring consistency and adequacy in sentencing.
• Cumulo Sentencing Approach: The temporary judge’s approach to cumulo sentencing was critiqued for being overly arithmetic without sufficient logical consideration of individual sentences and their cumulative effect. The appellate court advocated for a structured approach that first assesses each charge individually before determining whether sentences should run concurrently or consecutively.
• Time on Remand: The original sentence’s calculation of time on remand was found flawed. The court highlighted the need for accurate reflection of remand time, considering modern early release practices, rather than applying blanket multipliers.
• Sentencing Purposes: The temporary judge inadequately addressed the primary sentencing purposes of public protection, punishment, and societal denunciation. The appeal court corrected this by ensuring these purposes were appropriately weighted, especially given the respondent’s extensive criminal history and the nature of his offenses.

Impact

This judgment has significant implications for future sentencing in Scotland:

• Adoption of Cumulo Sentencing: The case reinforces the necessity for courts to adopt a comprehensive cumulo sentencing approach, ensuring individual sentences are appropriately assessed and aggregated to reflect the totality of the offenses.
• Integration of English Guidelines: Scottish courts are reminded to consider English sentencing guidelines as a supplementary tool to ascertain fair and adequate sentences, particularly in areas where Scottish guidelines may be less specific.
• Refinement in Remand Calculations: The decision underscores the importance of accurately calculating time on remand, promoting more precise and equitable sentencing outcomes.
• Emphasis on Sentencing Purposes: There is a clear directive to prioritize the foundational sentencing purposes, especially in cases involving significant public safety concerns and extensive criminal backgrounds.

Complex Concepts Simplified

Cumulo Sentencing

Cumulo sentencing refers to the practice of determining individual sentences for each offense before combining them into an overall total sentence. This approach ensures that each crime's unique circumstances and severity are duly considered, rather than arbitrarily summing up fixed periods.

Time on Remand

Time on remand is the period an accused individual spends in custody while awaiting trial. Properly accounting for this time is crucial to ensure that individuals are not unfairly penalized by having their remand time excessively deducted from their future sentences.

Sentencing Guidelines

Sentencing guidelines provide structured frameworks that help courts determine appropriate sentences based on the nature and severity of offenses. While not legally binding, they serve as important reference points to promote consistency and fairness in sentencing practices.

Protection of the Public

This sentencing purpose emphasizes the need to safeguard society from individuals who pose significant risks due to their criminal behavior. It justifies the imposition of sentences that incapacitate offenders and deter future crimes.

Conclusion

Crown v Docherty [2024] HCJAC 36 serves as a pivotal case in Scottish criminal law, particularly in the realm of sentencing. By addressing deficiencies in the initial sentencing approach, the High Court underscores the importance of a methodical cumulo sentencing process, the integration of relevant sentencing guidelines, and accurate calculation of remand time. The judgment not only rectifies the lenient sentence imposed on David Docherty but also sets a robust precedent for future cases involving complex and serious offenses.

The case highlights the judiciary's role in balancing various sentencing purposes—public protection, punishment, and societal disapproval—while ensuring that sentences are proportionate to both the offenses committed and the offender's criminal history. As such, Crown v Docherty is a cornerstone case that will guide future sentencing deliberations, promoting fairness, consistency, and adherence to best practices within the Scottish legal system.