Thomas Hendry Shannon v. Her Majesty's Advocate [2011] HCJAC 12

Reference from the Scottish Criminal Cases Review Commission:- On 29 January 2009 at Dundee Sheriff Court the appellant pleaded guilty to a charge of contravening section 113(1)(a) of the Sexual Offences Act 2003 in that he did without reasonable excuse, breach the terms of an order by covertly removing himself from the property in which he and his supervisors were installed whereby he was in Atholl Street, Dundee whilst outwith the supervision of a staff member of the relevant agency appointed by Dundee City Council who were maintaining supervision of the appellant. The plea was tendered at a second trial diet, following three first diets. On 9 April 2009 the sheriff sentenced the appellant to 4 years detention, discounted from a starting point of 5 years on account of the plea of guilty. The appellant appealed against that sentence. After sundry procedure the appellant applied to the Scottish Criminal Cases Review Commission for review of the sentence. The application was based solely on the ground that the sheriff had erred by selecting a sentence discount of only 20%. The Commission did not consider that the sentence discount selected might have resulted in a miscarriage of justice given the stage of the proceedings in which the plea was tendered. The Commission concluded that a miscarriage of justice may have occurred as a result of the selection of 5 years as an excessive starting point for the sentence and accordingly referred the case to the appeal court for determination. Here the court considered whether the circumstances of the case merited the selection by the sheriff of the maximum available sentence as her starting point.