Scottish High Court of Justiciary Decisons

Fleming v. Her Majesty's Advocate [2001] ScotHC 120 (7th December, 2001)

[1] The appellant, Wayne David Fleming, who is aged 25, was found guilty by a majority of the jury on 6 April 2001 at Edinburgh High Court of two charges. The first charge was that on 5 November 2000 at a shop in Methilhill, while acting with another, and with their faces masked, he assaulted Caroline McDougall and Beverley Anne Mayes, both employees in the shop, presented an imitation firearm at them, struck Beverley Anne Mayes on the face to her injury and robbed them of a box, a book, a bag, a till roll and money. The second charge was that, while acting with another at the shop on 5 November 2000, and at the time of committing the assault and robbery in the first charge, the appellant had in his possession an imitation firearm, contrary to the Firearms Act 1968 section 17(2) and (5) as amended by the Firearms (Amendment) Act 1988.

The trial judge imposed upon the appellant an extended sentence of 13 years on each of the two charges, the custodial term being one of 8 years and the extension period being one of 5 years. Before us, it was accepted by Mr. Duguid, who appeared for the appellant, that an extended sentence was appropriate in this case. Further, there was no objection to the custodial term of 8 years. What was appealed against was the extension period imposed of 5 years.

We well understand why it should be considered that an extended sentence was appropriate in this case. As the trial judge narrates in his report, the appellant had two previous convictions for assault and robbery, five convictions for assault, one conviction for a contravention of the Prevention of Crime Act 1953, section 1, and several convictions for breach of the peace and contraventions of the Police (Scotland) Act. We were informed by Mr. Duguid that so far as the conviction in 1993 is concerned, which was one of assault and robbery, no weapon was actually used although a weapon was in fact carried. So far as the conviction in 1998 is concerned, which was also for assault and robbery, no weapon was involved. The first occasion upon which the accused had been convicted of assault and robbery in which a firearm had been used was in the present case.

The trial judge in his report said that it was clear from the appellant's record that he was someone who was prepared to resort to violence to achieve his objectives. He went on to say that the use of a firearm, even on a first occasion, was a very serious offence which merited a lengthy custodial sentence. He took the view that the appellant had shown no remorse for these offences. What persuaded the trial judge to impose the sentence which he did was, as he says, the age of the appellant and his previous convictions. That led him to impose the maximum period, which he considered was the appropriate period for an extension period. He correctly identified the appellant as someone who was prone to violence and concluded that it was desirable that the public should be protected from the appellant for an appropriate period. By the time the period for which the appellant was on licence had expired, he would be 38 and by that age the trial judge hoped that the appellant would have the necessary maturity to cease being a danger to the public.

In terms of section 210A(1) of the Criminal Procedure (Scotland) Act 1995 the trial judge considered that the period for which the appellant would be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from him, and he decided to pass an extended sentence on the offender. No criticism was, or could be made of that conclusion. But the extension period which he set, for which the appellant was to be subject to a licence in terms of section 210A(2)(b), was the maximum period which could be imposed for these offences. Mr. Duguid simply submitted that the appellant was therefore liable, if he breached the licence, to serve a period of 13 years in prison. It was the extension period which in his submission was excessive. Having regard to all the circumstances, including those taken into account by the trial judge, we are of opinion that the imposition of the maximum extension period in this case is not appropriate. We consider that the purposes of section 210A in the imposition of an extended sentence are satisfactorily met by an extension period of three years which makes the extended sentence one of 11 years. We will therefore quash the extension period imposed by the trial judge. We will substitute a period of 3 years, making the extended sentence one of 11 years.