Scottish High Court of Justiciary Decisons

ANDREW JOHN BATCHELOR v. HER MAJESTY'S ADVOCATE [2000] ScotHC 89 (26th September, 2000)

The appellant is Andrew John Batchelor who is now aged 42. He was indicted in the Sheriff Court at Glasgow and on 15 February 1999 he pled guilty to a number of charges on the indictment and was remitted for sentence to the High Court. On 19 March 1999 the sentencing judge imposed a total sentence of eight years' imprisonment backdated to March 1999. The appellant has appealed against that sentence and we note that the hearing of the appeal has been postponed on a number of occasions at the request of the appellant and his advisers.

The sentence of eight years selected by the sentencing judge can be broken down in this way. The appellant pled guilty to three charges of theft and six charges of fraud for which he was sentenced to five years six months' imprisonment. He also pled guilty to two charges of applying a false trade description contrary to the Trade Descriptions Act 1968, two charges of offering un-hallmarked articles as if they were made of gold, contrary to the Hallmarking Act 1973 - for which the appellant had a previous conviction - and a charge of exposing for sale a watch bearing a sign identical to, or likely to be mistaken for, a registered trademark, contrary to the Trademarks Act 1994. In respect of those charges the sentencing judge imposed a cumulo sentence of six months' imprisonment. He pled guilty to ten charges of contravening section 67(9) of the Bankruptcy (Scotland) Act 1985 by obtaining credit in excess of £250 when he had been rendered bankrupt. One of these charges involved obtaining a total credit of £36,000 from American Express. The charges covered a period from June 1995 to June 1996. The appellant was sentenced to a cumulo sentence of one year's imprisonment in respect of that matter. He pled guilty to six charges of breach of the peace, all comprising incidents of shouting and abuse directed at various customers who were complaining about transactions arising out of his business. The complainers in these offences had been greatly upset by his behaviour and the sentencing judge imposed a cumulo sentence of six months for these offences. Finally, he pled guilty to a contravention of section 27(1)(a) of the Criminal Procedure (Scotland) Act 1995 arising out of his failure to appear at a diet on 16 November 1998, for which he was again sentenced to six months' imprisonment.

In his report to this Court, the learned sentencing judge has set out a detailed account of the circumstances as explained to him. We could not hope to improve upon it and, subject to what we say after this, we simply adopt and refer to, without repeating, his account.

In general terms, the report reveals that the appellant worked for a number of years as a jeweller but the business failed and he was sequestrated. He was set up in a business in Royal Exchange Square in Glasgow where he was an employee and the manager, though he held himself out as the owner. It was in the course of this business that the various offences were committed. Mr Duguid, on his behalf, stressed that it was simply in the course of the business that he had offended. What the appellant did was to take in goods for valuation, repair and sale on commission.

The thefts which he committed were thefts of items of property brought to the shop for those purposes, partly at least as a result of advertising for such items. The first charge to which he pled guilty related to 122 transactions over the period from March 1994 to October 1997, each involving one or more pieces of jewellery and the total value involved, as explained to the sentencing judge, was said to be between £232,000 and £380,000. Payments of £81,000 had been recovered. On behalf of the appellant today those figures were challenged and it was said that, contrary to what the judge had thought when imposing sentence, the appellant had not accepted the lower of these two figures as the correct value of the transactions. It was said that, when account was taken of payments made and compensation and other matters, the true figure was significantly lower, although it was conceded that it would in all events have been a six-figure sum. It is important, in our view, to notice in regard to the way in which the sentencing judge dealt with the matter, that a large number of the victims were elderly people of limited means who had taken in the items concerned to sell in order to raise money.

The six fraud charges covered a period from March 1995 to September 1997 and involved the appellant obtaining items or money or credit by false pretences. The sum involved totalled about £45,000.

That is only a very brief and general picture of the offending conduct but, in itself, it is sufficient to show that the appellant pled guilty to what can only be described as a catalogue of crimes of dishonesty involving substantial amounts of property or money over a period of years. It has to be said that on his behalf today Mr Duguid did not seek to minimise the offending conduct and he accepted that the conduct required to be regarded as serious and merited substantial punishment.

In approaching the matter in the lower court the sentencing judge had regard to the fact that much of the appellant's conduct could be regarded as having been carried out to keep his business creditors at bay, but he considered that his conduct had resulted also in the appellant enjoying a lavish lifestyle, in effect at the expense of his victims. He had a large and expensive flat in Newton Mearns.

On behalf of the appellant Mr Duguid made the point today that the flat concerned was rented rather than owned by the appellant. He had four credit cards. The sentencing judge had said that he drove a number of cars including a second hand Jaguar with a value of £12,000, but today counsel said that he had only one car. The sentencing judge noted that he went on expensive foreign holidays, but Mr Duguid said that in effect he went on one holiday a year. It was also noted by the sentencing judge that the appellant visited London, taking an associate with him, and paying for all of his expenses. Latterly he bought a flat in London and indulged in expensive meals in restaurants. His American Express card showed that he had spent more than £36,000 on clothes, travel and dining out during the eighteen months up to May 1997. Mr Duguid submitted, however, that much of this expenditure had really been in connection with his business. He was in the jewellery trade and many transactions in that trade were carried out in London. It was accordingly necessary for him, in the course of his business, to visit London. When there, he had to maintain a lifestyle which was consistent with that of other people in that trade and this had involved expenditure on such matters as travel and meals in restaurants. For that reason the expenditure should not be seen as being designed to support a lavish lifestyle for its own sake, but simply as part of his wider efforts to carry on his business and to trade out of his debts.

On behalf of the appellant, therefore, Mr Duguid made a number of individual points, some of which we have mentioned already, but taking them overall, his submission was that the sentence imposed by the sentencing judge could properly be regarded as excessive. He pointed out that the appellant had pled guilty and had thereby spared the witnesses the need to attend court and give evidence. This was of particular significance where many of the witnesses were elderly.

Mr Duguid also said that the sentencing judge had been wrong to impose consecutive sentences in respect of the charges under the Hallmarking Act and the Bankruptcy Act, since these offences had been committed simply as one aspect of the appellant's whole course of conduct which was designed, foolishly of course, to try to trade out of his financial difficulties. We reject that particular submission since we are of the view that both these pieces of legislation embody significant institutions which exist for the promotion of sound commerce and the proper administration of financial affairs. The actings of the appellant in the relevant respects tended therefore to undermine these important public institutions and the sentencing judge was fully entitled to give weight to that particular wider public interest.

Perhaps the broadest and most general challenge put forward by Mr Duguid was to the sentencing judge's overall approach to the nature of the appellant's offending. In truth, Mr Duguid submitted, the appellant had committed the various offences because he had become involved in a business which was burdened with debt and he was concerned to try to trade out of that debt. As we have explained, it was said to be for those reasons that he had incurred his expenditure in London and elsewhere to support the kind of business which he was conducting. In the course of that submission Mr Duguid very frankly stated that some of what he was submitting to the court was inconsistent, not only with the terms of the plea of guilty tendered on the appellant's behalf, but also with what had been accepted on his behalf both in the Sheriff Court and at the remit to the High Court.

In giving his reasons for imposing the sentences which he did, the sentencing judge explains carefully that he took into account the entire state of the appellant's business, his lack of judgment and competence and his obsession with trading out of his business difficulties. He also took account of the appellant's medical difficulties, including his depression and suicidal tendency. He also had regard to the fact that the appellant had indeed tendered a plea of guilty and had spared the witnesses the need to give evidence. He tells us that he took account of the fact that the appellant at the time was 40 years of age and had only had two previous convictions and had not served a custodial sentence. Nonetheless, in view of what he described as the "enormity" of the appellant's offending, he considered that he had no alternative but to impose the sentences which he did.

The only question for this Court is whether the sentences, individually or in total, can properly be regarded as excessive. In our view, with the exception of the sentence for the contravention of section 27(1)(a) of the Criminal Procedure (Scotland) Act, the sentences cannot be regarded as excessive. We are prepared to take a broad view and assume, as was submitted on his behalf, that the essential purpose behind the appellant's offending was indeed to trade out of his business difficulties and that his lavish lifestyle was part of that scheme. The fact remains, nonetheless, that what he was trying to do was to put right those business difficulties at the expense of a very large number of elderly and vulnerable people. His conduct cannot be described as anything other than callous and calculated.

In our view, for those reasons, the sentences imposed for those matters can be regarded as appropriate. With regard to the six month sentence for the contravention of the Criminal Procedure (Scotland) Act, we consider that there is force in Mr Duguid's observation that more account should be taken of the fact that the appellant had spent 68 days in custody awaiting trial, even although that was itself a result of his failure to appear in court. For that reason we shall quash the sentence of six months in respect of this offence and substitute a sentence of three months to be served consecutively. For the rest the appeal is dismissed.

VA