Anonymised Summary of the Opinion
Factual and Procedural Background
This opinion concerns a Crown appeal against sentence following conviction after trial. The Appellant (the prosecution) appealed an extended sentence imposed on the Respondent on 16 July 2025. The sentence imposed by the sentencing judge was an extended sentence of 9 years and 1 month with a custodial term of 7 years and 1 month.
The Respondent was convicted of four offences arising from events on 11 June 2023 at an address in The City:
- Charge 1: assault on Complainant 1 (the Respondent's ex-partner, then aged 33) including repeated punches and stamping, aggravated as domestic abuse.
- Charge 2: assault on Complainant 2 (a boy aged 9) by pushing or throwing him causing him to fall.
- Charge 3: abduction of Complainant 1, Complainant 2 and Complainant 3 (a girl aged 3) involving locking the door, concealing clothing and a mobile telephone, covering and restraining Complainant 3 and detaining the victims, aggravated as domestic abuse.
- Charge 4: while the parties were travelling in a motor vehicle on a road near The City, the Respondent repeatedly grabbed the steering wheel and pulled the handbrake up, causing the vehicle to veer off the road and roll over; this was charged as assault to their injury and to the danger of their lives, and as attempted murder of the three occupants.
Brief factual features described in the opinion include that Complainant 1 drove with two children (Complainant 2 and Complainant 3) in the rear seats, the Respondent sat in the front passenger seat, the Respondent had been agitated and there was evidence he had been taking drugs or prescribed medication causing tiredness, the Respondent pulled the handbrake up to the extent expert evidence recorded, and the vehicle rolled over. Complainant 1 and Complainant 3 sustained cuts and bruises; Complainant 1 later required a plaster cast for six weeks. The judge described a realistic possibility that the occupants could have died and that other road users were present at the time.
The Respondent gave evidence denying the assaults and detention, offering alternative explanations for injuries and asserting limited or different contact with the vehicle controls. The sentencing judge accepted that these were despicable offences, found a high risk of domestic offending and described the Respondent's conduct on charge 4 as a "momentary leave of his senses." The judge selected cumulative custody of 3 years for charges 1–3 and a notional headline of 7 years for charge 4, resulting in an extended sentence (headline reduced by 11 months to take account of remand and bail with electronic monitoring) and backdating to 6 June 2025.
Procedurally, after first appearance on petition on 13 June 2023 the Respondent was remanded in custody until admitted to bail subject to electronic monitoring on 17 October 2024. He remained on that status for 232 days until 5 June 2025, and was remanded in custody on 6 June 2025 until sentence on 16 July 2025. The Crown appealed the leniency of the sentence imposed.
Legal Issues Presented
- Whether the sentencing judge's treatment of charge 4 (attempted murder) resulted in an unduly lenient sentence that fell outside the range reasonably open to the sentencing judge.
- Whether the sentencing judge erred in assessing the Respondent's culpability and the harm, including the aggravating significance of multiple victims and two young children.
- Whether the sentencing judge erred in treating the reporting social worker's observations as indicating genuine remorse or acceptance of responsibility.
- Whether the sentencing judge erred in the treatment of time spent on remand interrupted by a period on electronically monitored bail, and whether the sentence should be backdated or otherwise adjusted under the relevant statutory provisions (Criminal Procedure (Scotland) Act 1995 s.210ZA).
Arguments of the Parties
Appellant's Arguments (Crown)
- The jury's conviction on attempted murder showed that the Respondent's actions constituted an assault intended to cause harm to three persons with wicked recklessness.
- The sentencing judge failed to recognise the gravity of charge 4 and accordingly imposed an unduly lenient sentence.
- The judge underestimated culpability, gave insufficient weight to the presence of multiple victims (including two children) and the Respondent's criminal record, and misapplied the social work report on remorse.
- The judge erred in law in treating time on remand interrupted by a period on electronically monitored bail without backdating to a notional commencement date; reference was made to authority and statutory requirements (including s.210ZA and the decision in Brown v Rea).
- The Crown relied on several first instance examples of attempted murder sentencing to illustrate appropriate ranges, and on appeal decisions such as Budge and Iqbal as comparative guidance.
Respondent's Arguments
- The sentencing judge properly accepted that the Respondent showed acceptance of responsibility and the judge was entitled to give the social worker's report some weight.
- The judge correctly assessed the criminal record and the prospects of rehabilitation; the sentence, though perhaps at the lower end, was within the range reasonably open to the sentencing judge and not unduly lenient.
- The judge should treat some of the remand period as a notional commencement date (the parties agreed a notional commencement date of 1 February 2024 for remand interrupted by bail), although the Respondent accepted the Crown's point on the legal questions under s.210ZA concerning electronically monitored bail.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court (as stated in the opinion) |
| HM Advocate v Bell (1995 SCCR 244) |
Test for undue leniency on appeal: sentence must fall outside range the sentencing judge could reasonably have considered appropriate. |
The court applied the Bell test as the governing standard for interference with sentence on Crown appeal. The Bell formulation guided whether the sentence was unduly lenient. |
| HM Advocate v O'Doherty [2022] HCJAC 31; 2022 JC 253 |
Guidance on backdating and treatment of remand interrupted by periods on bail; approach to identifying a commencement date to account for remand. |
The court followed O'Doherty in identifying a commencement date that allowed for the period spent on remand interrupted by qualifying bail and agreed the simplest method here to backdate to 1 February 2024. |
| Brown (PF Airdrie) v Rea [2025] SAC (Crim) 2, 2025 SC (SAC) 63 |
Interpretation of Criminal Procedure (Scotland) Act provisions on electronically monitored bail (s.210ZA) and sentencing direction obligations. |
The court agreed with the Sheriff Appeal Court in Rea and applied s.210ZA principles (direction about treating a period as time served for execution) to the present case. |
| HM Advocate v Budge [2025] HCJAC 27 |
Comparative sentencing for serious driving-related offences and attempted murder; used by parties as a comparator. |
The court considered Budge but found that Budge involved materially worse facts and did not provide a straightforward comparator for the present case. |
| Iqbal v HM Advocate [2018] HCJAC 65 |
Sentences in attempted murder by fire-bombing; illustrative of potential sentencing levels for separate attempted murder charges. |
The court considered Iqbal as part of contextual sentencing comparisons and noted commentary that each attempt might attract around 12 years individually. |
| HM Advocate v Fergusson [2024] HCJAC 22; 2024 JC 376 |
Approach to sentencing in relation to attempted murder as discussed in Iqbal. |
The opinion notes Fergusson as having influenced later approach to sentencing comparisons (as referenced in the Iqbal discussion). |
| HM Advocate v Cooperwhite [2013] HCJAC 88; 2013 SCCR 461 |
Assessment of remorse and effect on sentence; how denial of culpability affects the capacity to rely on remorse as mitigation. |
The court cited Cooperwhite as illustrating that denial of culpability undermines any claimed remorse; used in analysing the Respondent's statements to the social worker. |
| Gemmell v HM Advocate [2011] HCJAC 129; 2012 JC 223 |
Further guidance on remorse and the limited circumstances where remorse can be taken into account. |
The court relied on Gemmell's discussion of remorse to conclude that genuine remorse requires acceptance of responsibility for the offence; absence of such acceptance here meant no mitigation for remorse. |
| HM Advocate v McGowan [2005] HCJAC 67; 2005 1 JC 327 |
Principle that the length of the custodial term should not be reduced because an extension period is also imposed. |
The court applied McGowan to justify that the custodial term on charge 4 should not be reduced by the fact that an extension period (supervision) would also be imposed. |
| Several first-instance decisions referenced by the Crown (e.g., HM Advocate v McBurnie; HM Advocate v Danquah; HM Advocate v Johnston) |
First-instance examples of sentencing levels in attempted murder or similar offences, used by the Crown to illustrate possible ranges. |
The court observed that appeal decisions are more useful guidance than first-instance sentences and found little assistance in those particular first-instance examples for determining whether the impugned sentence was unduly lenient. |
Court's Reasoning and Analysis
The court proceeded by applying the established test for undue leniency set out in HM Advocate v Bell: an appeal court may only interfere where the sentence falls outside the range which the sentencing judge, applying his or her mind to all relevant factors, could reasonably have considered appropriate. Weight should be given to the trial judge's views, particularly where the judge had heard the evidence.
The court conducted an independent assessment of culpability and harm for charge 4 (attempted murder). It observed that seriousness derives from culpability and harm, including potential harm. The court found the Respondent's culpability "considerable" given deliberate actions in a moving vehicle with predictable consequences. It recorded actual injury to Complainant 1 and to Complainant 3 and emphasised the material aggravation of multiple victims, two being children aged 9 and 3, and the danger posed to other road users.
The court reviewed the Respondent's criminal record (an extensive record including multiple convictions for assault and related domestic offending) and concluded this was materially aggravating and had not been given sufficient weight by the sentencing judge in relation to charge 4.
On remorse, the court analysed the reporting social worker's observations and relevant authorities (Cooperwhite, Gemmell). It adopted dictionary and authority-based definitions: genuine remorse requires acceptance of commission of the crime and must be accepted by the sentencer. The court concluded the social worker's passages did not demonstrate acceptance of criminal responsibility; the Respondent continued to deny culpability, so those passages did not amount to genuine remorse. The sentencing judge erred in treating them as indications of genuine remorse.
Applying all of the above, the court concluded that the sentence selected on charge 4 was unduly lenient. The court considered an appropriate custodial term on charge 4 to be 10 years. To avoid disproportion between counts, the court determined that a cumulative extended sentence of 13 years with a custodial term of 11 years was appropriate in cumulo on all counts.
Addressing remand and electronically monitored bail, the court followed O'Doherty in identifying a commencement date that accounts for the period spent on remand interrupted by qualifying bail. The parties agreed that the simple method here was to start from the original date of remand (13 June 2023) and count forward the period the Respondent was on bail (232 days), yielding a backdating of the sentence to 1 February 2024. The court therefore backdated the new extended sentence to 1 February 2024.
On the specific statutory regime for electronically monitored bail (Criminal Procedure (Scotland) Act 1995 s.210ZA), the court noted that where qualifying bail applied the court must specify a "relevant period" to be treated as time spent in custody (being one-half of the bail period unless the court directs otherwise) and direct for execution that the person be treated as having served that period. The Respondent had been on qualifying bail under an electronically monitored curfew from 17 October 2024 to 5 June 2025 (232 days). The court directed that for execution the Respondent be treated as having served 116 days (one-half of 232) of the new extended sentence.
Finally, the court recorded for clarity that the non-harassment order imposed on 16 July 2025 was not subject to appeal and continued in force.
Holding and Implications
APPEAL ALLOWED; SENTENCE VARIED
Holding (core ruling): The court allowed the Crown appeal in part. It found the sentencing judge erred in treating the social worker's comments as demonstrating genuine remorse and in imposing a custodial term on charge 4 that was unduly lenient. The court substituted an extended sentence in cumulo of 13 years with a custodial term of 11 years, and determined that the custodial term on the attempted murder count (charge 4) should be 10 years. The sentence was backdated to 1 February 2024. Under s.210ZA the Respondent is to be treated for execution as having served 116 days of that sentence.
Implications:
- Direct effect on the parties: the Respondent's effective custodial term is increased and the extended sentence is backdated as specified; the Respondent is to be treated as having served 116 days of the sentence for execution purposes.
- The court emphasised principles concerning assessment of remorse (genuine remorse requires acceptance of responsibility) and the proper statutory treatment of time on electronically monitored bail under s.210ZA. The decision applies those existing principles to the facts of this case but does not purport to create a new general principle of law beyond the application and clarification of existing authorities.
- The non-harassment order imposed at sentence remains in force.
Anonymisation note: All personal names and identifying details in this summary have been replaced with consistent, generic placeholders drawn from the provided opinion. No facts have been invented or inferred beyond what appears in the opinion.