Scottish High Court of Justiciary Decisons

McKenna v. Procurator Fiscal [2002] ScotHC 123 (12 September 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Hamilton	Appeal Nos: 1313/02 1314/02 OPINION OF THE COURT delivered by LORD KIRKWOOD in NOTE OF APPEAL AGAINST SENTENCE by WILLIAM LITTLE McKENNA Appellant; against PROCURATOR FISCAL, Glasgow Respondent: _______

 

 

Appellant: A. Brown; McCourts

Respondent: G.M. Henderson, A.D.; Crown Agent

 

12 September 2002

1. In this appeal against sentence the appellant is William Little McKenna who pled guilty at Glasgow Sheriff Court to charges in two complaints, namely (1) a charge of breach of the peace and (2) a charge of theft by shoplifting. The appellant pled guilty to each charge on 17 May 2001 and sentence was deferred for good behaviour until 15 November 2001. On that date a social enquiry report and a community service assessment were available and they disclosed that the appellant had been addicted to heroin since the age of 17. The reports also disclosed that on 21 June 2001 he had been placed on probation for two years at Glasgow District Court. He had recently been admitted to a project which provided supported accommodation for young people and gave them an opportunity to stabilise their lifestyle and prepared them for independent living. On 15 November sentence was again deferred for good behaviour until 4 June 2002. On that date there was available a probation progress report which indicated that the appellant had been making good progress. He no longer took heroin and he was reducing his methadone prescription. The report recommended that consideration be given to disposal by way of admonition. However, the sheriff was informed by the procurator fiscal depute that the appellant had not been of good behaviour as on 18 March 2002 he had been charged with two offences of assault and also a breach of the peace. The sheriff was told by the appellant's solicitor that the appellant denied those charges. He submitted that the recommendation in the report should be adopted and the appellant admonished, or at any rate sentence should be deferred until the outcome of the prosecution was known.
2. The sheriff recognised that the appellant was making progress with his heroin addiction, and tells us that had he been of good behaviour he would have adopted the recommendation contained in the report. However, he went on to state that "against that there was to be considered the appellant's attraction of further charges whilst upon deferred sentence and subject also to probation". He declined to defer sentence further, and in light of the appellant's bad record he imposed a sentence of three months imprisonment on each charge, the sentences to run concurrently.
3. Counsel for the appellant submitted that the sheriff had misdirected himself in taking the view that because the appellant had been charged with certain offences, which he denied, he had not been of good behaviour. In the circumstances, the appropriate course for the sheriff would have been to defer sentence further until the outcome of the new prosecution was known. Alternatively, the sheriff should have followed the recommendation in the probation progress report and admonished the appellant. In any event, the sentence had been excessive.
4. In this case sentence was originally deferred for six months for the appellant to be of good behaviour. During that period he had been placed on probation at Glasgow District Court and had been responding well to the order. Sentence was deferred for another six months, until 4 June 2002, for him to be of good behaviour and the preparation of a probation progress report. On 4 June that report showed that the appellant had made good progress, and recommended that consideration be given to disposal by way of admonition. The sheriff states that had the appellant been of good behaviour he would have admonished him on both charges, but as he had been charged with three offences he imposed a sentence of three months imprisonment on each charge with immediate effect. In our opinion, the sheriff has erred in his approach to these cases. The fact that an accused has, during a period of deferment, been charged with an offence or offences, which he denies having committed, does not establish that he has not been of good behaviour. The court cannot assume that he was guilty of the offence or offences with which he has been charged. Whether he has, or has not, been of good behaviour during the period of deferment cannot be ascertained until the outcome of the prosecution is known, and in the present case the trial has not yet taken place and it is not known when it will be held. We were told that the appellant has recently commenced courses in Computing and Communications at Clydebank College.
5. We considered whether we should defer sentence again, but in view of the fact that the offences were relatively minor, that they were committed in July and December 2000 and the progress which the appellant has made in relation to his drug addiction, we have decided that the appropriate course is to quash the two custodial sentences and admonish the appellant.