Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 94

HCA/2016/000305/XC

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST SENTENCE

by

GR

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Ogg;  Capital Defence Lawyers

Respondent:  Brown QC, AD;  Crown Agent

30 August 2016

[1]        This is the appeal of GR.  The appellant went to trial before the sheriff at Elgin on an indictment containing seven charges.  After the evidence of the complainer in charge 1, CA, the long term domestic partner of the appellant, and the complainer in charge 2, the appellant’s son, SA, had been heard the appellant pled guilty to charges 1, 2, 3, 4 and 6 subject to deletions.  Ms Ogg, who appeared on behalf of the appellant, emphasised that the charges to which the appellant pled guilty had significantly restricted libels when compared with what had been charged on indictment. 

[2]        Charge 1, as pled to by the appellant, is in these terms: 

“on various occasions between 1 January 1994 and 31 July 2007, [at various addresses], you [GR] did assault [CA], your partner, and did (a) repeatedly punch her on the head and body (b) shout, swear, act in a violent and aggressive manner and throw a beer can on some of said occasions all to her injury.” 

Charge 2 is in these terms: 

“on two occasions between 1 July 2004 and 31 December 2009, [at an address in Forres] and elsewhere, you [GR] did assault your son, [SA], residing there and did (a) while a child of under 10 years old, seize hold of him on the body and throw him onto the bed;  and (b) push him on the body causing him to lose his balance all to, on an occasion, his injury.” 

Charge 3 is in these terms: 

“on 28 July 2015, at [an address in Forres and elsewhere], you [GR] did send text messages to your son, [SA], to try and induce him not to give evidence against you in the knowledge that you knew he was likely to be a witness in respect of the above charges and this you did with the intent to pervert the course of justice and did attempt to pervert the course of justice.” 

Charge 4 is in these terms: 

“between 1 July 2007 and 1 July 2009, [at an address in Forres], you [GR] did maliciously punch and break the windscreen of a motor car belonging to [CA].” 

Charge 6 is in these terms: 

“on 11 January 2016 [at an address in Forres] you [GR] 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 push [JB], your partner, utter derogatory remarks, act in an aggressive manner and punch a door contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.” 

[3]        At trial the complainer in charge 1 and the complainer in charge 2 gave evidence using special measures.  We note, from paragraph 25 of the sheriff’s report that, notwithstanding the pleas of guilty which were tendered following the evidence of these complainers, in the course of cross-examination the first complainer it was put to her that she had made everything up;  she was asked why she could not remember details of the various assaults and which assault caused which injuries;  and it was put to her that she had been manipulative and calculating and had made everything up or at least exaggerated matters to get the appellant into trouble.  These propositions were presumably put to the first complainer on the express instructions of the appellant, albeit that after that had been done the appellant then pled guilty and later confirmed his acceptance of guilt when giving his account to the criminal justice social worker.  Ms Ogg explained this state of affairs as the appellant “having realised the errors of his ways”. 

[4]        Having adjourned in order to obtain a background report the sheriff imposed sentences which are minuted as follows:  18 months’ imprisonment in respect of charge 1;  3 months’ imprisonment in respect of charge 2;  12 months’ imprisonment in respect of charge 3;  admonition in respect of charge 4;  and 3 months’ imprisonment in respect of charge 6.  She ordered that the sentences in respect of charges 1, 2 and 6 should be served concurrently and that the sentence in respect of charge 3 should be served consecutively. 

The minute dated 2 June 2016 recording these sentences goes on to state: 

“The Court imposed upon the said accused an extended sentence of imprisonment within the meaning of section 210A of the Criminal Procedure (Scotland) Act 1995 comprising a custodial period of 30 months and an extended period of 2 years to commence from 2 June 2016. 

Total Extended sentence:  54 months

Period of imprisonment:  30 months

Duration of Extension Period:  24 months.”

Why the sheriff proceeded as she did is explained in her report to this court at paragraphs [45] and [48]: 

“[45]    Having imposed a period of custody of 2 ½ years, I turned to consider whether any further public protection was required.  For this, I had regard to the criminal justice social work report prepared.  Despite what was said by Mr Lockie about the Appellant accepting his behaviour, the report highlighted that he did not appreciate the consequences of his actions.  This was particularly concerning. 

…

[48]      Taking all factors into account, and the fact that the Appellant presents as high risk of reoffending, I considered that a period of 2 years’ (sic) appropriate for monitoring in the community post release.  This would also allow him to access such support as considered appropriate to prevent reoffending.” 

The sentence imposed by the sheriff was incompetent.  In so far as material for present purposes (with the qualification that a sheriff may only impose an extended sentence with an extension period of 5 years) the provisions made by section 210A of the 1995 Act for the imposition of an extended sentence are as follows: 

“210A. — Extended sentences for sex and violent offenders.

(1) Where a person is convicted on indictment of a sexual or violent offence, the court may, if it—

(a) intends, in relation to—

(i) a sexual offence, to pass a determinate sentence of imprisonment;  or

(ii) a violent offence, to pass such a sentence for a term of four years or more; and

(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender,

pass an extended sentence on the offender.

(2) An extended sentence is a sentence of imprisonment which is the aggregate of—

(a) the term of imprisonment (“the custodial term”) which the court would have passed on the offender otherwise than by virtue of this section; and

(b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is, subject to the provisions of this section, of such length as the court considers necessary for the purpose mentioned in subsection (1)(b) above.

(3) The extension period shall not exceed, in the case of—

(a) a sexual offence, ten years; and

(b) a violent offence, [ten] years.”

The sheriff did not have regard to these provisions.  Whether or not the section contemplates the aggregation of lesser sentences for the purpose of the court intending “in relation to …a violent offence to pass such a sentence for a term of four years or more” (which we regard as questionable:  cf Crawford v HMA 2015 SCCR 345), where it is a violent offence that is under consideration the court must intend to pass such a sentence for a term of four years or more.  Here that was not the case.  The sheriff’s arithmetic brought her to “a period of custody” of 30 months.  That was by dint of leaving out of account the sentences in respect of charges 2 and 6, each of which were of 3 months but which were ordered to be served concurrently with the 18 month sentence in respect of charge 1, but even if the sentences in respect of charges 2 and 6 were brought into the equation for the purposes of the exercise that the sheriff was carrying out, the total does not reach 4 years.  That being so, even were it to be assumed that there is a place for aggregation of lesser sentences for the purpose of coming to the threshold term of 4 years, there can be no question of an extended sentence here.  Had there been, the sheriff would have had to address the test of “not be adequate for the purpose of protecting the public from serious harm from the offender”, which we do not see her as having done.  Remarkably, this competency point was not taken in the Note of Appeal although Ms Ogg drew our attention to it.  It is not a matter that we can ignore.  The result is that sentencing in respect of all the charges to which the appellant pled guilty is at large. 

[5]        Ms Ogg developed her submissions under reference to the written Note of Argument, her primary position being that in the circumstances of this case, particularly having regard to the age of the appellant, the fact that he had never previously served a custodial sentence, the fact that his previous convictions are few and apparently minor, a non‑custodial sentence would be appropriate.  Her alternative position was that the court should impose a lesser sentence of imprisonment than that imposed by the sheriff.  She drew our attention to the sheriff’s description of the assaults which are the subject of charge 1 as being “minor”.  She submitted moreover that the sheriff had erred in having regard to matters which were spoken to in evidence by the first complainer but not reflected in the plea of guilty in determining the length of the sentence.  She made reference to the Criminal Justice Social Work Report and the reference there to an underlying problem with alcohol.  In the event that we were not with her on her primary submission, Ms Ogg proposed that we should reflect what appears to have been the intention of the criminal justice social worker and impose a Supervised Release Order in respect of such custodial sentence as was imposed in relation to charge 1. 

[6]        We have not been persuaded that this was a case for a non‑custodial disposal.  As was observed in the course of argument, domestic abuse is a matter which comes before this court and the sheriff court all too commonly.  It is a particularly serious problem and it is a problem that the court attempts to address in a serious manner.  This particular case involved what was a prolonged and persistent course of physical violence against the appellant’s partner.  We do not consider the expression “minor” to be appropriate when the matter is looked at in the context of a libel which began in 1994 and continued until 2007. 

[7]        We have not been persuaded that the lengths of sentence selected by the sheriff were other than those in which she was entitled to select.  It is not a fair reading of the sheriff’s report to suggest that she had regard to matters not libelled in the charges to which the appellant pled guilty.  We consider that the sentence in respect of charge 1, was, if anything, lenient, a view which the sheriff came to adopt when reconsidering the matter for the purpose of her report. 

[7]        In our view there was no alternative to a custodial sentence in respect of charges 1, 2, 3 and 6 and we cannot regard the respective periods of imprisonment selected in relation to these charges as excessive.  As already indicated, if anything, the period of 18 months in respect of charge 1, taken in isolation, was lenient.  We therefore cannot accept Ms Ogg’s invitation to impose a lesser sentence in respect of any of these charges.  However, we do accept her submission that, having regard to the terms of the Criminal Justice Social Work Report and the sheriff’s concerns as to risk and the need for post‑custodial monitoring it would be appropriate to make a supervised release order in terms of section 209 of the 1995 Act.  

[8]        Because we consider that the sheriff’s approach rendered all the custodial sentences imposed by her incompetent, we will quash the sentences imposed by the sheriff in respect of charges 1, 2, 3 and 6.  In re‑imposing the same custodial terms we shall make two adjustments.  The first we have already indicated: the making of a supervised release order in relation to the sentence imposed on charge 1.  This would seem to offer a competent route to achieving the sheriff’s intention that the appellant be supervised on release.  However, given that we do not propose to increase the sheriff’s sentence of 18 imprisonment in respect of charge 1 and given the terms of section 209 (7) (b) of the 1995 Act, the period of supervision cannot be more than 9 months. 

[9]        The other adjustment is as to how the various custodial sentences are to be served.  We see each of charges 1, 2, 3 and 6 as distinct offences, each adding to the seriousness of the appellant’s offending when looked at as a whole.  We see no reason why, as the sheriff did, they should be ordered to be served concurrently.  The sheriff provides no explanation for the order she made.  It is true that regard must always be had to the overall effect of ordering sentences to be served consecutively lest that effect be disproportionate in the whole circumstances of the case.  In our view, given the periods of custody selected by the sheriff, to which we propose to adhere, there would be no such disproportionate effect in the event of the appellant being ordered to serve these sentences consecutively.  We shall make an order accordingly. 

[10]      We shall therefore quash the sentences imposed by the sheriff in respect of charges 1, 2, 3 and 6.  We shall re-impose a sentence of 18 months’ imprisonment in respect of charge 1.  That sentence will be subject to a supervised release order, the relevant period being 9 months, subject to such conditions as the supervising officer may reasonably specify together with the standard conditions imposed by virtue of section 2019 (4) (a) (i).  In addition, we shall re‑impose a sentence of 3 months’ imprisonment in respect of charge 2, 12 months’ imprisonment in respect of charge 3, and 3 months’ imprisonment in respect of charge 6.  We shall order these sentences to be served consecutively upon one another.  The date of commencement will be the date selected by the sheriff, which was 2 June 2016.