Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 44

HCA/2015/489/XC

Lord Justice Clerk

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

PAUL DAVID OSWALD McLEAN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: CM Mitchell; Faculty Services (for Ward & Co, Perth)

Respondent: Carmichael AD; the Crown Agent

29 April 2015

[1]        On 8 December 2014, at a continued First Diet in the Sheriff Court at Perth, the appellant pled guilty to three charges.  These were as follows:

“(1)      between 11 July 2013 and 13 November 2013 … at Her Majesty’s Prison … Perth … you … did engage in a course of conduct which caused [LS] , your ex partner … fear or alarm in that you did repeatedly telephone and send letters to [LS], leave numerous messages stating that you were in love with her, were missing her and would not hurt her, repeatedly request that she send you letters and photographs and request that she make contact with the Procurator Fiscal on 20 November 2013 to provide information to assist you in your forthcoming court appearance; CONTRARY to Section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010;

(2)        … being a person subject to a non-harassment order … made on 20 November 2013 at Perth Sheriff Court and being required to refrain from such conduct in relation to [LS] … including, inter alia, not to molest … [LS] nor place her in a state of fear and alarm … breach the terms of said order in respect that you did place [LS] … in a state of fear and alarm by repeatedly attending at the … border of her property, leaning on a fence there, shouting and whistling to attract attention to your presence there, all to the fear and alarm of the said [LS]; CONTRARY to the Criminal Procedure (Scotland) Act 1995 Section 234A; and

(4)        on 15 June 2014 at [Kinross] you … did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout, swear and repeatedly threaten [AM], your father … then aged 65 years … with violence; CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.”

[2]        On 23 January 2015, the sheriff sentenced the appellant to 12 months imprisonment (discounted for the early plea from 16 months) on each of charges (1) and (2) and 6 months (discounted from 8 months) on charge (4).  The total custodial term was therefore 30 months (discounted from 40 months).  The sheriff imposed a non-harassment order in respect of the complainer in charges (1) and (2) and the appellant’s father in charge (4), with a duration of 5 years.  She also made a supervised release order of 12 months.

[3]        The circumstances are that the appellant and the complainer were in a relationship for some 13 years.  They have two children.  The relationship ended in April 2013, when the appellant assaulted the complainer to her severe injury.  He was sentenced to 2 years imprisonment and made the subject of both a non-harassment order of 4 years and a supervised release order.  During his period in custody, the appellant made some 60 and 70 calls to the complainer, leaving many messages of an apparently affectionate nature on her answering machine.  He sent 7 letters to her in similar terms.  One of his requests was that she attend at the Procurator Fiscal’s office to say that she had exaggerated the circumstances of the assault.  This was done in the hope of obtaining a lighter sentence. 

[4]        The appellant was released on 10 June 2014.  He was subject to the non-harassment order and the supervised release order.  Only 4 days later he appeared at the complainer’s house in Kinross.  The children were playing outside.  One of them hurt herself and ran indoors.  Both children had seen the appellant and, being aware of the past history, were frightened.  The complainer was terrified.  She called the appellant’s sister, who persuaded him to move away.  The appellant maintained in mitigation that all of this had been a coincidence in that he happened to see his injured daughter whilst going towards his father’s house. 

[5]        On 15 June 2014, he did go towards his father’s house.  He met his sister’s boyfriend, who had been sent to persuade him to move away.  He threatened to kill his father and repeated this threat to his sister later.  He did not see his father at any point.  He maintained in mitigation that he had only been going to the house in order to collect certain goods which he had left in a car. 

[6]        The appellant’s former relationship with the complainer had led to a sharp fall in his offending.  He had accumulated only 2 non-custodial road traffic convictions since commencing this relationship in 2002.  On the other hand, prior to that, he had a significant number of offences, including a High Court conviction for concern in the supply of drugs, which had resulted in a 5 year sentence in 1998.  That apart, he had some 5 convictions for assault and sundry others for public disorder and contempt of court. 

[7]        Notwithstanding his record, the appellant had maintained steady employment, being a diesel mechanic and plant operator.  The CJSWR suggested a 2 year Community Payback Order with unpaid work in the community and a requirement to attend the Domestic Violence Work Group.

[8]        The sheriff, however, reasoned that the only appropriate way to proceed was by way of custodial sentence, having regard to the sustained nature of the stalking on charge (1) and the request to approach the procurator fiscal, together with the fact that the offence had breached a non-harassment order.  She stated that she gave appropriate weight to the terms of the CJSWR and to the appellant’s personal circumstances.  Nevertheless, having regard to the public interest in deterring accused persons from encouraging complainers to contact the procurator fiscal, she considered that the custodial terms were appropriate.

[9]        The grounds of appeal, in so far as leave has been given, challenge the overall length of the custodial sentences, the duration of the new non-harassment order in respect of the complainer and the imposition of such an order in respect of the appellant’s father.

[10]      The court agrees with the sheriff that the only appropriate sentence for these offences was a custodial one of some considerable duration.  Each offence must be regarded as significant when seen against the background of the previous conviction for assault to severe injury.  Nevertheless, there is substance in this submission that each of these sentences is excessive.  As was stressed by the appellant, the contact in charge (1) was ostensibly of a conciliatory tone, which differentiated it from an unpleasant or aggressive harassment.  On charge (2), at no time did the appellant actually enter the environs of the house by, for example, going through the garden gate.  The words used in charge (4) were in anger.  No physical injury or contact had occurred. 

[11]      Having regard to these matters, each of these sentences will be reduced.  In respect of charge (1), the sentence will be one of 6 months imprisonment (discounted from 8);  on charge (2), it will be 8 months (discounted from 10); and in respect of charge (4), it will be 4 months (discounted from 6).  The overall effect is that the cumulative headline sentence of 40 months, which the court deems to have been excessive, will be reduced to one of 2 years.  The ultimate sentence imposed, after discount, will be one of 18 months. 

[12]      The court does not agree with the submissions which have been made relative to the non-harassment orders.  Having regard to the fact that charge (2) is a breach of the order itself, the court is unable to fault the sheriff in her imposition of a further order of 5 years.  For similar reasons, having regard to the longstanding history of tension between the appellant and his father, the non-harassment order in respect of the appellant’s father was justified and the appeal to that extent will be refused.  The SRO will remain in place.