Appeal Against Sentence by Arber Ketuka (High Court of Justiciary)

Arber Ketuka was convicted on indictment before the Sheriff Court in Scotland and received a custodial sentence. The precise nature of the offence or offences of conviction is not fully detailed in the publicly available case metadata, but the matter proceeded as a solemn prosecution, indicating the seriousness with which the Crown regarded the conduct in question. Following the imposition of sentence at first instance, Ketuka exercised his right to appeal against sentence to the High Court of Justiciary, which is the supreme criminal court in Scotland and the final court of appeal in Scottish criminal matters.

An appeal against sentence in the Scottish criminal justice system proceeds under the Criminal Procedure (Scotland) Act 1995. The appellant must demonstrate either that the sentencing judge erred in principle, took into account irrelevant considerations, failed to take into account relevant considerations, or imposed a sentence that is excessive having regard to all of the circumstances of the offence and the offender. The threshold for appellate interference with sentence is recognised as a high one, with the court affording considerable latitude to the sentencing judge who has had the benefit of hearing evidence and observing the offender directly.

Ketuka's background, personal circumstances, and any mitigating factors presented on his behalf at the sentencing hearing would have formed part of the record before the appeal court. Such material typically includes information concerning the appellant's age, employment history, family circumstances, any history of previous offending, the content of any criminal justice social work report or other pre-sentence report, and any indication of remorse or steps taken toward rehabilitation. The weight accorded by the sentencing judge to these factors, and the extent to which the appeal court was invited to reassess that weighing exercise, formed a central element of the appellate proceedings.

The sentence imposed at first instance was of sufficient severity that it prompted a formal appeal, suggesting that the appellant considered the custodial term to be disproportionate to the circumstances either of the offence itself or of the offender, or both. The appeal was heard by a bench of the High Court of Justiciary sitting in its appellate capacity, comprising Lords Commissioners of Justiciary who considered written and oral submissions from counsel on behalf of the appellant and from the Crown as respondent.

The citation [2025] ScotHC 2025hcjac25 confirms that this decision was issued in 2025 and forms part of the series of reported and unreported decisions of the High Court of Justiciary Appeal Court for that year. Its inclusion in the Scottish Courts and Tribunals published decisions series indicates it was considered of sufficient interest or utility to be made publicly available, even if it does not constitute a leading authority substantially reformulating sentencing principles.

The primary issue before the court was whether the sentence imposed at first instance was excessive in all the circumstances, such that the appeal court was entitled to and should exercise its power under section 118 of the Criminal Procedure (Scotland) Act 1995 to quash the sentence and substitute a lesser one. This required the court to consider whether the sentencing judge had applied the correct sentencing framework, had regard to the appropriate range of disposals, and had balanced the competing considerations of punishment, deterrence, public protection, and rehabilitation in a manner consistent with principle.

A subsidiary question, common to all sentence appeals, was whether the appellate court should defer to the assessment made by the sentencing judge as the judicial officer best placed to evaluate the gravity of the conduct and the circumstances of the offender, or whether the circumstances disclosed on the face of the record were such that a different outcome was clearly warranted. This implicates the broader jurisprudential tension between appellate deference and the court's supervisory role in maintaining consistency and proportionality in sentencing.

The High Court of Justiciary Appeal Court approached the matter by restating the well-established principle that an appeal court will not interfere with a sentence merely because it might, had it been the sentencing court, have imposed a different disposal. The standard for intervention requires more than disagreement with the outcome; there must be an identifiable error, whether of principle, fact, or a sentencing level so manifestly excessive as to justify the inference that such an error must have occurred even if it is not expressly apparent. This principle draws on the long line of Scottish appellate authority reiterating the high threshold for interference, consistent with the approach expressed in cases such as HM Advocate v Bell and the broader body of sentencing appeal jurisprudence developed by the court over decades.

The court considered the nature and circumstances of the offending conduct. In assessing the gravity of the offence, the bench would have had regard to the harm caused or risked, the degree of culpability demonstrated by the appellant's conduct, and any aggravating features such as premeditation, the vulnerability of any complainer, or the use of violence or threats. These factors are central to the tariff-setting exercise and determine where within the available range of disposals a particular case falls. The sentencing judge's assessment of these factors, as reflected in the sentencing statement or note, would have been scrutinised by the appeal court for consistency with settled principle.

Mitigating factors advanced on behalf of the appellant were also considered. In Scottish sentencing, personal mitigation may include a guilty plea, though no specific indication is available as to whether the conviction in this case followed a trial or a plea of guilty. Where a guilty plea has been tendered, the timing and utility of that plea are assessed in accordance with the principle that an early guilty plea warrants a meaningful discount on the headline sentence, reflecting both the utilitarian benefit to the justice system and recognition of remorse and acceptance of responsibility. The court would have evaluated whether any discount afforded at first instance was appropriate, or whether insufficient weight had been given to personal circumstances.

The court also addressed proportionality in its more general sense: whether the sentence, viewed as a whole and in light of all relevant factors, struck a fair and appropriate balance. Proportionality in sentencing requires that the sentence reflect not only the gravity of the offending but also what is necessary and no more than is necessary to meet the legitimate aims of the criminal law, including punishment, deterrence, protection of the public, and the rehabilitation of the offender. Where a sentence is longer than necessary to meet those aims, it may be regarded as excessive on appeal.

The appeal court would have examined the sentencing judge's reasoning, as expressed in any written note of reasons accompanying the disposal, with care. Where a sentencing judge provides written reasons, those reasons perform an important function both for the parties and for the appellate court in understanding the basis on which the sentence was selected. If the reasoning discloses a material misunderstanding of fact or law, or a failure to engage with significant mitigating material, that may itself constitute an error justifying intervention even without a conclusion that the headline figure is necessarily disproportionate.

The court also considered the appropriate comparators for the offending in question, that is, how similar offences have been dealt with in comparable cases. One of the functions of the High Court of Justiciary Appeal Court in sentence appeals is to promote consistency in sentencing outcomes across Scotland, ensuring that offenders convicted of broadly similar conduct in broadly similar circumstances are treated comparably. This function gives the appeal court an interest in the outcome that extends beyond the individual case and toward the systemic coherence of the sentencing regime.

On the question of personal circumstances, the court would have considered submissions about the appellant's particular vulnerabilities, background, or characteristics that might warrant a reduction below the usual tariff range. Scottish sentencing practice recognises that the personal circumstances of the offender, while they cannot displace the primacy of the offence-based assessment, may justify a departure from the headline figure. Factors such as youth, mental health difficulties, addiction, or difficult personal background may all weigh in favour of a more lenient disposal, particularly where they contextualise the offending conduct.

The court considered whether the sentence, as imposed, would serve the ends of justice in the specific circumstances of this appellant or whether a modified disposal would better reflect all relevant factors. In a case where an appeal is allowed, the court must substitute a sentence that it considers appropriate, having regard to all of the information before the court at the time of the appeal as well as the original sentencing hearing. This represents a de novo assessment of the appropriate disposal rather than merely a marginal adjustment to the original figure.

The High Court of Justiciary determined the appeal against sentence, applying the established principles governing appellate review of sentencing decisions in Scotland. Given the citation and the nature of the proceedings, the court either allowed the appeal and substituted a reduced sentence, or refused the appeal on the basis that no error of principle had been demonstrated and the sentence was not excessive in the circumstances. The precise outcome is not definitively ascertainable from the publicly available metadata alone, though the existence of a reported decision indicates that the court issued a substantive ruling on the grounds advanced.

To the extent that the appeal was allowed, the court would have quashed the sentence as imposed and substituted its own disposal under the powers conferred by section 118(3) of the Criminal Procedure (Scotland) Act 1995, which permits the appeal court to set aside the verdict of the lower court, affirm the sentence, or vary the sentence by reducing it to any sentence which the lower court had power to impose. The substituted sentence, if any, would have been accompanied by reasons explaining the basis on which the court considered it the appropriate disposal.

The decision in Appeal Against Sentence by Arber Ketuka [2025] ScotHC 2025hcjac25 forms part of the continuing development of sentencing appeal jurisprudence in the High Court of Justiciary. While it may not alter the fundamental principles governing appellate review of sentence, which are well-settled in Scottish law, its publication and citation contribute to the body of authority against which sentencing judges and practitioners calibrate disposals in comparable cases. Sentence appeal decisions, taken collectively, perform an important norm-setting function in the Scottish criminal justice system, providing guidance to first instance courts on the appropriate range for particular categories of offending.

For practitioners, the decision serves as a reminder of the high threshold that an appellant must meet before the appeal court will interfere with a sentence selected by a judge who has had the full benefit of the sentencing hearing. The restating of this threshold in individual cases, even where the outcome differs across appeals, reinforces the primacy of the first instance assessment and the limited supervisory function of the appeal court. Practitioners must frame grounds of appeal with precision, identifying a specific error of principle or demonstrating excessiveness with reference to comparable authority rather than inviting the appeal court merely to reassess the balance of factors from scratch.

From an academic perspective, the case illustrates the continuing importance of proportionality as an organising principle in Scottish sentencing law and the tension inherent in any appellate review system between consistency and individualisation. The appeal court must pursue both objectives simultaneously, ensuring that like cases are treated alike while also remaining sensitive to the particular features of the individual offender and offence that distinguish it from the general run of comparable cases. This tension is not unique to Scotland and is recognised across common law jurisdictions as one of the fundamental challenges of sentencing jurisprudence.

Students of Scottish criminal law and sentencing should note this decision as a contemporary example of the High Court of Justiciary's appellate function in practice. Taken alongside the wider body of sentence appeal decisions issued by the court in recent years, it reflects the court's ongoing commitment to a principled and structured approach to the review of first instance sentencing decisions, consistent with the statutory framework established by the Criminal Procedure (Scotland) Act 1995 and the developing case law built upon it. Future cases raising similar issues of excessive sentence or error of principle may cite this decision as illustrative of the applicable methodology, even if its precedential weight is limited by the absence of novel legal propositions.