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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Philip
C.G.B.
Nicholson, CBE, QC,
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[2007HCJAC34]
Appeal No: XJ 515/06
OPINION OF THE COURT
delivered by C.G.B.
NICHOLSON, CBE, QC
in
APPEAL AGAINST SENTENCE
in causa
THOMAS O'HARA
Appellant;
against
PROCURATOR FISCAL, AYR
Respondent:
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Appellant: Moll; Gilfedder &
McInnes
Respondent: Borthwick A.D.; Crown Agent
27
June 2007
Background
[1] The
appellant in this case was originally charged on a complaint which libelled
four charges, each of which related to the theft from farm premises in Ayrshire
of a quad bike. On the fourth of these
charges he was charged along with a co-accused. The dates of the alleged offences ranged from 21 October 2005 to 10 April 2006. It appears that the appellant offered to plead
guilty to charges 2 and 4 at his first appearance on 27 June 2006, but it
was not until his appearance at an intermediate diet on 14 September 2006 that those
pleas were accepted by the respondent. The
case was then adjourned in order to obtain the normal reports and, on 26 October 2006, the
appellant appeared for sentence.
[2] The
facts, as set out by the sheriff, are that, in relation to charge 2, the
quad bike in question had been parked in a garage into which the appellant had
broken. The farmer had taken the
precaution of parking a 4x4 vehicle in front of the quad bike in order to
prevent theft. However, the appellant
somehow moved this four-wheel drive vehicle and stole the quad bike. That bike was valued at £5,000, and it was not
recovered. In relation to charge 4
it appears that the appellant and his co-accused had gone to the locus in a
Ford Transit van. The quad bike in
question was moved, and the back doors of the van were open to enable the bike
to be loaded, when the appellant and his co-accused were interrupted by a
witness. They then drove off with the van's
doors still open. They were eventually
traced, and admissions were made. In the circumstances the quad bike was not
lost, and it remained in the possession of its owner.
[3] On
26 October 2006 the sheriff, having considered the reports which had been
prepared, and having heard a plea in mitigation, proceeded to sentence the
appellant. He concluded that a custodial
sentence was required and, in respect of charge 2, he imposed a sentence
of eighty days detention in a young offenders' institution, that sentence
having been discounted from one of four months to reflect the early stage at
which the appellant had first intimated a plea of guilty to the charge. In respect of that charge the sheriff also
made a compensation order in the sum of £5,000, that being the value of the
stolen quad bike. In relation to charge
4 the sheriff imposed a period of forty days detention, reduced from a starting
point of two months, again on account of the early plea of guilty. The periods of detention were ordered to be served
consecutively, making a total of 120 days - a period of around four months. It is against the foregoing sentences that the
present appeal has been taken.
The submissions on behalf of the
appellant and the decisions of the Court
[4] The
first submission advanced by Mr Moll, counsel for the appellant, was that the
custodial sentences imposed by the sheriff were incompetent. As has been mentioned above, the sheriff's
sentence in respect of charge 2 was one which was discounted to eighty
days detention from a starting point of four months. Consequently, the sheriff's starting point was
a period in excess of three months which is, subject to an exception to which
we return shortly, the statutory maximum for an offence at common law which is
prosecuted summarily. Moreover, the
sentence in respect of charge 4, albeit falling within that statutory maximum,
was made consecutive to the sentence on charge 2 with the consequence that
the total sentence on the complaint was one of 120 days. It is, of course, well established that
consecutive sentences for two or more charges in a single complaint must not in
total exceed the maximum permitted sentence for a single charge (see, for
example, Nicholson v Lees 1996
SCCR 551). Accordingly, it was submitted
that, if the sheriff in the present case was bound by a maximum sentence of
three months imprisonment, his sentences were incompetent - individually in the
case of the sentence on charge 2, and cumulatively in respect of the total
sentence for the complaint as a whole.
[5] The
statutory provision in question is section 5(2) of the Criminal Procedure
(Scotland) Act 1995 which
provides that a sheriff, on convicting any person of a common law offence,
shall have power, inter alia, to "impose imprisonment, for any period
not exceeding three months". However,
the foregoing provision is modified by subsection (3) which provides that:
"Where a
person is convicted by the sheriff of -
(a)
a second or subsequent offence inferring dishonest
appropriation of property, or attempt thereat,
................
he may .....
be sentenced to imprisonment for any period not exceeding six months."
[6] In
the present case the appellant has no previous convictions for the crime of
theft. However, he has a previous conviction for a contravention of section 178(1)(a)
of the Road Traffic Act 1988, which is the offence of taking and driving away a
motor vehicle without having either the consent of the owner or other lawful
authority. The sheriff took the view
that that was an offence "inferring dishonest appropriation of property", and
it appears that his view on that matter was not challenged at the time of
sentence. Accordingly, the sheriff
considered that in the present case he was entitled to impose custodial
sentences up to a maximum of six months. However, Mr Moll's submission was that the
sheriff had erred in coming to that conclusion, and that a conviction for a
contravention of section 178(1)(a) of the 1988 Act did not properly fall
to be regarded as a relevant previous conviction for the purposes of section 5(3)
of the 1995 Act.
[7] Mr Moll
was unable to refer us to any relevant case law which might offer support for
that submission. However, he sought to
find support in another section in the 1995 Act, namely section 249, which
is the one which deals with compensation
orders. Subsection (3) of that
section provides:
"Where, in
the case of an offence involving dishonest appropriation, or the unlawful
taking and using of property or a contravention of section 178(1) of the
Road Traffic Act (taking motor vehicle without authority etc) the property is
recovered but has been damaged while out of the owner's possession, that
damage, however and by whomsoever it was in fact caused, shall be treated for
the purposes of subsection (1) above as having been caused by the acts which
constituted the offence."
Mr Moll submitted that the
disjunction, in the opening part of the subsection, of an offence involving
dishonest appropriation from both the unlawful taking and using of property and
a contravention of section 178(1) must mean that offences of the latter
kind are not to be regarded as ones which involve dishonest appropriation; and
for that reason they cannot be so regarded for the purposes of section 5(3)
of the Act.
[8] We
do not agree. In our opinion the three categories of offence which are detailed
in subsection (3) have been separately mentioned simply for the avoidance
of any doubt which might have arisen had there been a reference only to
offences "involving dishonest appropriation"; and it does not mean that the
other two categories of offence referred to are in some way free from the
concept of dishonest appropriation. The
first of those two categories is "the unlawful taking and using of property"
which we take to mean the common law crime of furtum usus. Literally translated from the Latin, that
means the theft of use which by its nature must, in our opinion, involve an
element of dishonest appropriation. In the same way, we consider that the
statutory offence under section 178 of the Road Traffic Act is but a
statutory version of furtum usus. Indeed, our understanding is that,
when that offence was first introduced into road traffic law many years ago, it
was so introduced in order to get around the problem that "joy-riding", against
which the offence is primarily directed, could seldom be successfully
prosecuted as theft because the offence, by its nature, did not involve, as the
crime of theft must, an intention permanently to deprive the owner of the
vehicle in question. However, the absence
of such an intention does not, in our opinion, have the consequence that the
offence of taking a vehicle without permission is one which does not involve,
or infer, dishonest appropriation.
[9] For the foregoing reasons, accordingly, we reject this part of
the submissions advanced by Mr Moll. In our opinion, the present appellant's
previous conviction for a contravention of section 178(1) of the Road
Traffic Act was an offence "inferring dishonest appropriation of property"
within the meaning of section 5(3) of the 1995 Act. It therefore follows
that the sentences selected by the sheriff in the present case were, in our
opinion, competent both individually and when taken together.
[10] Before leaving this part of the submissions advanced on behalf
of the appellant we should mention that the submission relating to the
competency of the custodial sentences selected by the sheriff had a wider
significance than merely in relation to the length of those sentences. It also had potential significance in relation
to the compensation order imposed in respect of charge 2 and any period of
detention that might fall to be imposed in the event of default in payment. Had we held that the submission on the matter
of competency was well founded we might well have dealt with that by making an
appropriate reduction in the sentences of detention so that, individually and
taken together, they did not exceed the section 5(2) maximum of three
months. But, the maximum sentence of
imprisonment or detention which can be imposed in default of payment of a fine
(or a compensation order) of up to £5,000 is itself three months (1995 Act, ss. 252(2),
219(2)); and there is a clear line of authority (beginning with Fraser v Herron 1967 JC 1) to the
effect that a custodial sentence in default of payment of a fine or other
financial penalty cannot be imposed where to do so would involve exceeding the
maximum sentence which can be imposed in respect of the original offence or
offences. Accordingly, the consequence
of the imposition of a custodial sentence at the level of the statutory maximum
would have been that the appellant would have been able with impunity to make
no payment in respect of the compensation order in the knowledge that no
custodial sentence could be imposed in default. We have mentioned all of this because it was
touched on by Mr Moll and because it features in the written Case and
Argument submitted on behalf of the appellant (although that document was not
drafted by Mr Moll). However, given
our decision on the matter of competency the position now is that, if the
sheriff's sentences, including the compensation order, are to stand, there will
in fact be an "unused" period of around two months' detention which, should the
need arise, could be invoked as a sanction in default of payment of all or part
of the compensation order. Mr Moll,
however, went on to submit that the sheriff should not have imposed a custodial
sentence at all, and should not have made a compensation order, and we
therefore now turn to the submissions advanced on those matters.
[11] In relation to the custodial sentences Mr Moll readily
conceded that the offences to which the appellant had pleaded guilty were
serious ones. However, he reminded us
that the appellant had made full admissions at the stage of his arrest; that he
was only 19 years of age at the time; that he had a very limited record of
previous offending, and has not previously served a custodial sentence; that he
is in full-time employment, and is currently a self-employed joiner; and that
the Social Enquiry Report presents a positive picture. Mr Moll also advised us that the
appellant has now moved away from a peer group which was likely to lead him
into anti-social behaviour. Taking all
of those matters into account, it was submitted, the sheriff could, and should,
have selected a non-custodial alternative, and in particular should have
imposed a community service order on the appellant.
[12] In his report to this Court the sheriff has made it clear that
he did consider the alternative of community service. However, he has told us that there appears to
be what he calls "a plague of thefts of quad bikes" from farms within the area
served by Ayr Sheriff Court; and he has also drawn our attention to the fact
that the offences which are the subjects of this appeal clearly involved an
amount of planning - particularly the offence libelled in charge 4. He goes on to say:
"In order
that the appellant understood the seriousness of this matter, and given the
value of the un-recovered vehicle in the second charge, and also to discourage
others who believe that there are easy pickings to be made by stealing these
from farms I took the view the matter was so serious that only a custodial
sentence would be appropriate and there was no other appropriate way of dealing
with the case."
[13] In our opinion the sheriff has given careful consideration to
all of the relevant factors in this case, and we are unable to say that the
selection of custodial sentences was, in the whole circumstances, outwith the
range of the discretion available to him in a case such as this. We accordingly reject this ground of appeal. So far as the length of the custodial
sentences is concerned it is our view that the sheriff's approach cannot be
faulted. He has distinguished between
charge 2, where there was no recovery of the vehicle, and charge 4
where, albeit fortuitously, the vehicle in question was recovered. In both cases, however, he has discounted by
one third the sentence which he would otherwise have imposed in order to take
account of the early stage at which the appellant offered pleas of guilty. That was an entirely appropriate discount in
the circumstances. In the result, we
consider that the sheriff was entitled to impose custodial sentences, and that
the lengths of those sentences are not open to challenge.
[14] We now turn to the compensation order which was imposed as an
additional penalty in respect of charge 2. At the outset Mr Moll accepted -
correctly, in our opinion - that it is competent to impose a compensation order
in addition to any other penalty (1995 Act, s. 249(1); Collins v Lowe 1990 SCCR 605).
However, Mr Moll submitted that in the whole circumstances, and in
particular having regard to the appellant's means, the sheriff had erred in
making the compensation order.
[15] The position in relation to the appellant's means is, we think,
less than wholly clear. The sheriff has
told us in his report that he was informed that the appellant was willing to
make compensation to the owner of the quad bike, and he goes on to state that
he was advised that the appellant's father would make £2,000 available with the
balance of the compensation being paid by the appellant. It is clear that all of this strongly
influenced the sheriff towards the making of the compensation order which he
ultimately imposed. However, the Social
Enquiry Report which was before the sheriff paints a very different picture. It states that, at the time when the report
was written, the appellant had around £10 per week at his disposal and had no
savings. Before this Court Mr Moll
sought to confirm that the appellant has very limited means, and would be quite
unable to pay a compensation order, particularly of the amount ordered in the
present case. He suggested that the
sheriff might have misunderstood what was said to him regarding the
availability of funds to meet a compensation order.
[16] It is unfortunate that there should be this conflict between,
on the one hand, what appears to have been said to the sheriff and, on the other
hand, what is stated in the Social Enquiry Report and what has now been
confirmed to us by Mr Moll. It
occurs to us, however, that what appears to have been said to the sheriff may
have been said - somewhat rashly in the circumstances - in a misguided attempt
to persuade the sheriff to deal with the case by the imposition of a
compensation order rather than by the imposition of a custodial sentence; and
it may not have been contemplated that the sheriff would ultimately decide to
deal with the case by the imposition of custodial sentences and a
compensation order.
[17] Be that as it may, we consider that we are bound to approach
this part of the sheriff's sentence on the basis that the appellant simply did
not have, at the time of sentence, the means to pay a compensation order,
particularly of the amount determined by the sheriff. In that connection we
note that section 249(5) of the 1995 Act echoes the provision in relation to
fines by providing:
"In
determining whether to make a compensation order ... and in determining the
amount to be paid ... the court shall take into consideration his means so far as
known to the court."
We also note that the following
subsection provides:
"For the
purposes of subsection (5) above, in assessing the means of a person who
is serving, or is to serve, a period of imprisonment or detention, no account
shall be taken of earnings contingent upon his obtaining employment after
release."
[18] Accepting, as we think we must, what was said in the Social Enquiry
Report regarding the appellant's means, and what was reiterated by Mr Moll
in his submissions to this Court, we consider that a compensation order should
not have been made in this case, particularly when it was imposed in addition
to a custodial sentence.
[19] In the whole circumstances, therefore, we shall refuse this
appeal in so far as it is directed against the custodial sentences imposed by
the sheriff. However, we shall allow the
appeal in so far as it is directed against the compensation order which was
imposed in respect of charge 2 in the complaint, and we shall quash that
order.
