Factual and Procedural Background
At Edinburgh High Court on 6 January 2025, the Respondent pled guilty to three charges under section 76 of the Criminal Procedure (Scotland) Act 1995 involving assaults on his wife, including a course of abusive behaviour and an attempted murder. The offences spanned from 2016 to 2024 and were domestically aggravated. The Respondent had no previous convictions. The sentencing judge adjourned to obtain a Justice Social Work Report and subsequently imposed concurrent sentences: 6 months for the first assault, 8 months for the abusive behaviour, and 7 years and 4 months for the attempted murder, with a non-harassment order for 15 years. The sentences were backdated to 16 April 2024, when the Respondent was first taken into custody.
The facts, as agreed and read to the sentencing judge, detailed a 33-year marriage marked by volatility and abuse. The first assault involved the Respondent placing his hands around the complainer's throat. The second charge related to a prolonged period of verbal abuse, physical aggression, and excessive contact after separation. The third charge concerned a violent incident on 14 April 2024, when the Respondent drove his car at the complainer twice, causing severe, life-threatening injuries captured on CCTV. The complainer was hospitalized for two months and suffered lasting physical and psychological harm.
Legal Issues Presented
- Whether the sentence imposed on the charge of attempted murder was unduly lenient.
- Whether the sentencing judge erred in ordering the sentences to run concurrently rather than consecutively.
- Whether the sentencing judge erred in declining to impose an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995.
- The appropriate level of discount for the Respondent’s guilty plea.
Arguments of the Parties
Appellant's Arguments
- The headline sentence of 8 years for attempted murder was too low given the seriousness of the offence, the deliberate nature of the attacks, and the presence of a child witness.
- The sentencing judge failed to give adequate weight to the severity and lasting impact of the injuries and psychological harm suffered by the complainer.
- The discount for the guilty plea was excessive as the plea was not offered at the earliest opportunity and was conditional on disclosure of medical records.
- The sentences on the three charges should not run concurrently as the offences were distinct in time and nature; a cumulative or consecutive approach was appropriate to reflect totality.
- The judge erred in declining to impose an extended sentence, misapplying the risk assessment and ignoring the possibility of risk to others beyond the complainer.
Respondent's Arguments
- The test for undue leniency was not met; the sentencing judge properly considered all relevant factors including culpability and harm.
- The plea was communicated promptly once full disclosure was made, and the discount was justified by the utilitarian value of avoiding trial.
- The concurrent sentences were appropriate, balancing the totality of the punishment.
- The judge correctly applied the statutory test for extended sentence and was entitled to conclude it was not warranted.
- The Respondent’s age, lack of previous convictions, mental health history, remorse, and willingness to engage in rehabilitation were relevant mitigating factors.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| HM Advocate v Bell 1995 SCCR 244 |
Test for undue leniency in appeals against sentence. |
Used to determine that a sentence must fall outside the reasonable range to be altered on appeal. |
| Foye v HM Advocate (2003) GWD 34-964 |
Sentencing principles for attempted murder involving use of a vehicle as a weapon. |
Distinguished from the present case due to differences in victim relationship, number of attacks, and injury severity. |
| Kelly v HM Advocate [2009] HCJAC 16 |
Sentencing for attempted murder with extreme brutality and permanent disfigurement. |
Considered more severe than the present case; used to contextualize sentencing severity. |
| HM Advocate v Scott Wilson (2022) |
Sentencing for attempted murder involving a vehicle. |
Limited information; no direct comparison drawn by the court. |
| HM Advocate v William McBurnie (unreported) |
Extended sentence for attempted murder involving a vehicle and prior convictions. |
Noted for similarity in facts; used to support higher sentencing. |
| HM Advocate v John Hughes (unreported) |
Extended sentence for repeated violent assault with permanent injury in presence of a child. |
Used as a benchmark for sentencing severity in similar circumstances. |
| Wishart v HM Advocate 2022 JC 259 |
Sentencing for attempted murder involving a vehicle driven at victims. |
Compared to highlight the greater seriousness of the present offence. |
| McGowan v HM Advocate 2024 JC 359 |
Significance of additional penalty for domestic abuse aggravation under the 2016 Act. |
Applied to justify the attribution of 18 months to the domestic abuse aggravation in sentencing. |
| Gemmell v HM Advocate 2012 JC 223 |
Discretionary nature of plea discount and circumstances for interference on appeal. |
Supported the view that the plea discount was not excessive and did not warrant interference. |
Court's Reasoning and Analysis
The court began by applying the established test for undue leniency from HM Advocate v Bell, emphasizing that interference is only justified if the sentence falls outside the range reasonably open to the sentencing judge. The court reviewed the sentencing judge's consideration of previous case law, including Foye, Kelly, and others, distinguishing the present case on relevant facts such as the relationship between offender and victim, the presence of a child, and the nature and severity of the attacks.
The court found that the sentencing judge had underestimated the seriousness of the attempted murder charge, particularly noting the deliberate and repeated use of the car as a deadly weapon, the presence of witnesses including a young child, and the severe, life-changing injuries sustained by the complainer. The court considered the totality of the offending and concluded that the headline sentence of 11 years (after discount) was unduly lenient.
Regarding the plea discount, the court acknowledged the delay in the Respondent's guilty plea and its conditional nature but accepted that the defence required medical records to properly advise on permanent impairment. The one-third discount was deemed appropriate and not excessive.
The court also analyzed the sentencing judge's decision to run sentences concurrently, finding this inappropriate given the distinct nature and timing of the offences. It held that consecutive sentences better reflected the totality and seriousness of the offending.
On the issue of an extended sentence, the court agreed with the sentencing judge that the statutory test was not met. Although the Respondent posed a high risk of harm, there was no evidence that the normal licence conditions would be insufficient to protect the public. The absence of a recommendation for an extended sentence in the Justice Social Work Report supported this conclusion.
Holding and Implications
The court quashed the sentence imposed on the attempted murder charge and substituted a sentence of 9 years and 8 months' imprisonment (after discount). It ordered that the sentences on all three charges run consecutively, resulting in a total effective sentence of 10 years and 10 months' imprisonment, an increase of 3 years and 6 months from the original total sentence.
This decision directly affects the Respondent by imposing a substantially longer custodial sentence and reflects the court’s view that the original sentence did not adequately mark the gravity of the offences. The ruling does not establish new legal precedent but affirms the application of established principles regarding sentencing for serious domestic abuse and attempted murder, plea discounts, and the imposition of consecutive sentences where appropriate.