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HMA v William David Sutherland Montgomery
Jun 16, 2020
On sentencing, Lord Arthurson made the following statement in court:
“William David Sutherland Montgomery, on 14 May 2020 at Edinburgh High Court you tendered a plea of guilty under Section 76 procedure to a single charge indictment libelling the possession by you in Edinburgh city centre on 16 August 2018 of a stun gun disguised as a mobile telephone. The issue for determination at this morning’s sentencing hearing is whether you have through the submissions of your counsel, based in large part on your own evidence given to the Court during this hearing, successfully displaced the mandatory minimum custodial tariff which applies to offences of this nature under the Firearms Act 1968 by way of the establishment in this case of exceptional circumstances.
At the time of the index offence you were in practice living as a homeless person in extremely challenging circumstances. Your position, both today and from the very outset of this matter, is in essence that you did not know that the device was a stun gun when you found it on 15 August 2018, but that you instead believed it to be an imitation phone such as might be on display in a shop, albeit one with a working torch function. It is of note that the officer who conducted the search of your person confirmed in his own evidence that initially the device appeared to be a fake display phone. For the avoidance of doubt it should be recorded that after testing the stun function of the device was found to be in working order, the discharge of electricity involving a two stage process which was unknown to you.
You have to date accrued six groups of prior criminal convictions, three of these on indictment. This indictment level offending has involved weapons, namely a knife on two occasions and a brick on another. The present matter is therefore your third conviction on indictment for weapons-related offending.
I have further listened with considerable care to the mitigation advanced on your behalf this morning by your counsel. I note in particular your whole background personal circumstances, including matters pertaining to your family, your previous employment and training and your health. All of this will be taken into account in today’s sentencing exercise. Your counsel has further and separately invited the Court to consider that in the light of the Covid-19 pandemic the utilitarian value of your guilty plea on this indictment has thereby generated an enhanced benefit which should be reflected in respect of the discount to be afforded on any sentence to be imposed. You of course have tendered your plea of guilty at the earliest possible stage in the current proceedings.
Turning first to the question of exceptional circumstances, on the basis of the evidence led and submissions advanced at this hearing, I am, although the issue is a finely balanced one, persuaded that your consistent position throughout these proceedings on the matter of your own knowledge in respect of the device, the whole circumstances concerning your acquisition of it and the brevity of that period of possession, all of which I accept, permits the Court to depart in your case from the mandatory regime normally applicable under the 1968 Act. The index offence is nevertheless to be regarded as a very serious one, which offence must of course be viewed in the context of your prior convictions on indictment for weapons-related offending, and in these circumstances I have concluded that no disposal other than a custodial one is appropriate.
Regarding the second question raised by your counsel, that of enhanced discount during the present public health emergency, I have reached the view, having heard also from Crown Counsel on the matter, that in the circumstances of your own case the substantial conventional section 76 procedure discount which has now come into play by virtue of my prior determination on exceptional circumstances is more than sufficient to reflect the utilitarian value of your early plea in these proceedings.
In these whole circumstances I accordingly now propose to sentence you as follows on this indictment. You will serve from today’s date a sentence of imprisonment of 2 years duration. But for the timing of your plea of guilty, that period would have been one of 3 years.”
11 June 2020