Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 16

HCA/2017/000008/XC

Lord Brodie

Lord Turnbull

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST SENTENCE

by

MARK FEENEY

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Macintosh;  McCusker McElroy & Gallanagh, Paisley

Respondent:  Hughes AD;  Crown Agent

7 March 2017

[1]        This is an appeal by Mark Feeney.  On 24 November 2016, an indictment against the appellant called before the sheriff at Paisley.  The first diet in the case had been on 30 June 2016.  Since then there had been what the sheriff describes in his report as “considerable procedure”.

[2]        The appellant pled guilty to charges 1 and 2 on the indictment as amended.  As amended these charges were in the following terms:

(1)        On 25 April 2015 at (an address in Paisley) you Mark Feeney did culpably and recklessly set fire to the contents of a bin.

(2)        On 25 April 2015 at (another address in Paisley) you Mark Feeney did culpably and recklessly set fire to rubbish and doors within the common close there and the fire took effect thereon and caused damage to said doors.

[3]        The sheriff adjourned the diet in order to obtain a Criminal Justice Social Work Report and on 23 December 2016 imposed a sentence of 6 months imprisonment in respect of charge 1 and 30 months imprisonment discounted from 36 months in respect of the plea in respect of charge 2, both sentences to be served from 23 December 2016 and accordingly to run concurrently.

[4]        In terms of a note of appeal received on 28 December 2016, the appellant appeals on the ground that the sentence in respect of charge 2 was excessive, having regard to the associated degree of culpability which was similar to that in respect of charge 1.  It is averred in the note of appeal that the plea was tendered on the basis that there was no deliberate act and that the appellant had acted in a culpable and reckless manner when under the influence of alcohol.  Although the potential consequences of the appellant’s actions were significant, their actual consequences were minor.

[5]        A second ground of appeal was not insisted on by Mr Macintosh, who appeared on behalf of the appellant.

[6]        In the case and argument and in the course of Mr Macintosh’s submissions to us, the following points were put forward.  The sheriff’s sentence in respect of charge 2 might be within the appropriate range of sentences for wilful fire-raising but it was excessive for the charge of culpable and reckless conduct which is what the appellant had pled guilty to.  The distinction between the two offences and the lesser degree of blameworthiness associated with culpable and reckless conduct had been explained in the Opinion of the Court in Byrne v Her Majesty’s Advocate 2000 JC 155.  While the appellant was clearly criminally responsible, he had been drunk at the time of the offence with a pattern of binge drinking which may in some way be associated with the consequences of an injury he had received when assaulted with a hammer in 2013.  The appellant had a limited history of previous offending, all matters having been dealt with by fines,  He was in employment.

[7]        Mr Macintosh accepted that the risk of harm to persons associated with any particular instance of culpable and reckless conduct was a relevant consideration when having regard to the seriousness and blameworthiness of the offence, but even taking that into account, the sheriff’s stepping up from 6 months imprisonment in respect of charge 1 to 30 months imprisonment in respect of charge 2 was not justified and had not been explained by the sheriff in his report to this court.

[8]        There are aspects of this case which have troubled the court.  It was given no explanation for the lengthy period between the date of the offences and the date of service of the indictment.  The appellant claims to have no recollection of the circumstances in which he accepts, having seen CCTV footage, he offended.  This may be explained by the fact that he was under the influence of alcohol at the time, it being accepted on behalf of the appellant that at weekends he is a binge drinker.  Other than the facts that the fires were set and that the appellant was the only person who could have set them, nothing is known about the circumstances in which the appellant offended.  This does not make it easy to assess blameworthiness.  However the risk associated with setting a fire in a close in residential property does not need to be elaborated on.

[9]        We have carefully considered everything said on behalf of the appellant.  We accept Mr Macintosh’s submission that there is a significant distinction in blameworthiness as between a wilful act of fire-raising and a reckless act of fire-raising.  We accept that that does not appear to have been fully recognised by the sheriff in the sentence he selected, albeit we entirely understand that the sheriff was influenced, and properly influenced, by the risk to persons associated with the behaviour constituting charge 2.  When the plea was tendered the sheriff had been advised by the procurator fiscal depute that in the early hours of 25 April 2015 a young couple had been asleep in the ground floor flat of the property identified in charge 2.  This address comprised several flats on several floors of the building.  The male of the couple had smelled smoke and wakened his girlfriend.  They went into the close where they found that a fire had been set at the door of their flat and also at the door of the flat across the landing.  The male obtained a blanket and extinguished both fires.  He then alerted his ground floor neighbour, a 51 year old, who had been asleep and unaware of the existence of the fires.  A 999 call was made and police units and fire appliances were sent to the property.  The total cost of repairing the damage caused by the fires was £312.96 but the procurator fiscal depute was unable to advise the sheriff who had borne this cost.

[10]      We will quash the sentence in respect of charge 2.  We will substitute that with a custodial sentence of 18 months, reduced from 21 months to have regard to the plea of guilty.  In addition we will make a supervised release order in terms of section 209 of the Criminal Procedure (Scotland) Act 1995.  The period of that supervised release order will be 9 months and during that period the appellant, having been released from custody, will be subject to the supervision of the appropriate officer and subject to the officer’s reasonable requirements.  These requirements will be for the officer to determine but we would hope that within the framework of the order steps might be taken to help the appellant address what looks to be  his problematic relationship with alcohol.  The sentence in respect of charge 2 will be served concurrently with the sentence in respect of charge 1.