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Cite as: [2004] ScotHC 20

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Koesger v. Her Majesty's Advocate [2004] ScotHC 20 (18 March 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Sheriff Principal E. F. Bowen, Q.C.

XC1101/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL

AGAINST SENTENCE

SEMIH KOESGER

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent.

_______

Appellant: A. Brown, Advocate; Russel & Aitken

Respondent: Miss M. Hughes, A.D. ad hoc; Crown Agent

18 March 2004

[1] The appellant, Semih Koesger, pled guilty at Perth Sheriff Court to Charge 1 of an indictment served under section 76 of the Criminal Procedure (Scotland) Act 1995. The charge was that:

"on 16 March 2003 at 80 Crieff Road, Perth [he] did have in [his] possession a firearm with intent to cause a person or persons namely [RC] and [DW] ... to believe that unlawful violence would be used against them and [he] did present and point a handgun towards them:

CONTRARY to the Firearms Act 1968, section 16A, as amended by the Firearms (Amendment) Act 1988 and the Firearms (Amendment) Act 1994."

[2] The Sheriff sentenced the appellant to nine months imprisonment. It was minuted that he did so having considered a social enquiry report and all methods of disposal and being satisfied that no other method of disposal was suitable because of the serious nature of the offence. In addition the Sheriff recommended that the appellant be deported.

[3] The appellant is 29 years of age. He is a German citizen of Turkish origin. He was born and brought up in Hannover. He acquired German citizenship on 28 August 2003. He came to Scotland in January 2002. He attended Perth College between January and June 2002 and again between September and December 2002 as a student of English as a foreign language. He then obtained employment. He lived in rented accommodation at 80 Crieff Road, Perth.

[4] The circumstances of the offence, as narrated by the Crown to the Sheriff, were as follows. On 16 March 2003 the appellant was at home. A number of youths, including the two complainers, were playing football in a car park at the rear of the property. The complainers were aged fifteen and fourteen years of age. One of them, RC, kicked a football over a wall into the garden of the appellant's property. RC and DW went into the garden to recover the ball. An argument took place between the complainers, on the one hand, and the appellant and another resident on the other hand. The complainers were asked to leave, but did not do so. They asked repeatedly for the ball, and were told that they would get it if they left the garden. DW became aware that the appellant was pointing a gun at him and saying, "Get the fuck out of the garden". DW was terrified, put his hands up and asked the appellant not to shoot him. He then ran from the garden, accompanied by RC. In the plea in mitigation the Sheriff was told that two days previously youths had been causing noise by kicking a football against boarding in the car park. Another occupant of 80 Crieff Road spoke to them and they left. On the day of the offence, youths were causing a similar disturbance. The appellant did not know whether the same youths were involved. Another occupant proposed to keep the ball. The youths left, but returned with sticks in their hands. The appellant was afraid, and very concerned that the youths would bring reinforcements. He presented the gun to frighten them away.

[5] The gun which the appellant presented belonged to him. It had been lawfully acquired by him in Germany, and brought with him when he came to Scotland. It was described in a report by Alister Buchanan Paton, a forensic firearms examiner, which had been obtained on the appellant's behalf, as a "revolver ... designed to discharge tear gas cartridges as well as blank and flare". It bore German proof marks indicating that it was proofed in Ulm in the category of "Flare and signal guns, blank and scare guns". Mr Paton further reported that:

"This type of weapon is designed for personal protection and the ammunition intended to deter or temporarily incapacitate an assailant rather than ... kill or injure.

In its deterrent form or to raise alarm, blank cartridges would be fired in the weapon with the only result being a loud noise without physical danger."

[6] Mr Paton further stated that revolvers of the make and model in question are on open sale in Germany for personal protection, and that the only restriction is that the possessor must be at least 18 years of age. Mr Brown, who appeared for the appellant before us, stated that he had sought and obtained confirmation that that was so. In the social enquiry report it is recorded that the appellant explained the position thus:

"If someone has come to your home to do harm to you or your possessions, the starter pistol makes a large bang. This alerts the neighbours of your trouble and frightens the offender away."

Earlier in the social enquiry report it is recorded that the appellant was "shocked to learn that his starter pistol is an illegal weapon in Scotland".

[7] The appellant is a first offender. He has no criminal record in Scotland. He thus has the benefit of section 204(2) of the Criminal Procedure (Scotland) Act 1995. In addition, it was confirmed that he had no criminal record in Germany. The appellant's general good character is also supported by a number of testimonials which were placed before us. These include letters from the landlord of his present accommodation, who is a doctor, and from the landlord's daughter, who is also a doctor and who was for four months the appellant's neighbour. They also include letters from his director of studies at Perth College and from another lecturer there.

[8] Mr Brown informed us that after being released on interim liberation in December 2003 the appellant returned to Germany. His purpose in doing so was to commence a university course there before his thirtieth birthday, which falls on 18 May 2004. The importance of his doing so lay in the fact that if he did not commence the course by that date he would become ineligible for grant funding. He had secured a place in a course, albeit not the one which he would prefer. The effect, however, is that eligibility for grant funding has been established, and a transfer to his preferred course may be possible.

[9] A further consideration which was placed before us by Mr Brown was that, if the appellant was to serve a sentence of imprisonment exceeding six months in length, that would give rise to the possibility of revocation of his German citizenship.

[10] In all the circumstances, Mr Brown submitted, the Sheriff had erred in taking the view that the only appropriate disposal was a custodial one. He submitted that the custodial sentence should be quashed and a community service order imposed instead. Although the author of the social enquiry report had not recommended a community service order, that had not been because such a disposal was unsuitable, but because it had been thought not to be required. In a community service report dated 1 December 2003, a positive recommendation of community service had been made. The appellant was willing to undertake community service. It would be possible for him to do so while continuing with his studies in Germany by returning to Scotland during university vacations.

[11] In our opinion in the very unusual circumstances of this case it can be said that the Sheriff erred in imposing the sentence that he did. In our view it is clear that the appellant is a young man of good character. We see no reason to disbelieve that he was alarmed by the conduct of the youths. His resort to the use of the firearm to frighten them away must, we think, be seen in the context that possession of such a firearm, and indeed its use to frighten off aggressors, is legitimate in Germany. We note the reference in the proof marks to the category including "scare guns". It may be that the Sheriff was misled by the terms of the original social inquiry report into thinking that a community service order would be impracticable or inappropriate. In our view, however, assisted by the later community service report, a community service order would have been an appropriate way in which to mark the gravity with which such use of firearms is regarded in this country. Had we been approaching the task of selecting the appropriate disposal with a clean sheet, we would have held that there was an appropriate alternative to custody, and would have imposed a community service order.

[12] In the event, however, as matters now stand, we do not consider that that would be an appropriate course for us to take. That is because, as Mr Brown pointed out, the appellant was in custody from the date on which the sentence was imposed, namely 8 October 2003, until the date on which he was granted interim liberation, namely 3 December 2003. That period is only a little less than the period which would be served in custody in respect of a sentence of four months imprisonment. Mr Brown urged us to take that period in custody into account in selecting a substitute disposal. We agree that it is appropriate to do so, and consider that that is best achieved by substituting a sentence of imprisonment which will, having regard to the time spent in custody, already have been served. A sentence of three months imprisonment with effect from 8 October 2003 would have that effect. A prison sentence of that nature would not have the effect of rendering the appellant's German citizenship revocable. The fact that the sentence imposed by the Sheriff would have that effect was not a point raised before the Sheriff, but we consider that we must take it into account now. To impose a sentence that would place the appellant's citizenship in jeopardy would be disproportionately severe.

[13] One matter remains for consideration. Mr Brown submitted that the circumstances did not justify a recommendation that the appellant be deported (Renton and Brown, Criminal Procedure, paragraph 23-162). In his Supplementary Report, the Sheriff recognises that that is so. We shall therefore quash the recommendation.

[14] In the result, therefore, the appeal will be allowed, the sentence of nine months imprisonment and the recommendation that the appellant should be deported will both be quashed, and a sentence of three months imprisonment with effect from 8 October 2002 will be substituted.