Sentencing shifts?

Sentencing: youthful offenders

In Chesser v HM Advocate [2014] HCJAC 41 (29 April 2015), the appellant, aged 17 at the time, was sentenced to a total of 36 months’ detention, reduced to 27 months for an early plea, on various charges of dishonesty and road traffic offences including dangerous driving while trying to evade police.

The sheriff had imposed nine months in respect of resetting three cars on different dates, 12 months for dangerous driving, three months for being carried in one stolen car and driving another, and a further three months for breaching a bail curfew. The appeal court held the overall period excessive given the appellant’s age: “A headline sentence of three years in custody is too long for a person of the appellant’s years, even for this catalogue of repeated offending.” The reset and dangerous driving sentences were reduced to six months each, and the other sentences allowed to remain, resulting in a total of 18 months.

In GC v HM Advocate [2015] HCJAC 47 (19 May 2015), the appellant was still 15 when he assaulted his partner by putting her in a neck lock, boiling a kettle to give the impression he was going to pour it over her, pouring sugar over her and punching her, causing a nosebleed. He also pled guilty to malicious damage, a statutory breach of the peace by presenting a knife and shouting and swearing, and police assault by spitting at an officer when being arrested. The incidents had occurred in the context of a domestic argument; the complainer had given birth to the couple’s child a fortnight earlier. The appellant had been intoxicated. He had since almost completed a community payback order, and although the couple had separated, he continued to see his son three times a week. He had immediate work prospects.

The appeal focused on the appellant’s youth, and the circumstances since the offending some 16 months before. The court quashed the 13 months’ detention (reduced from 18 months due to the guilty pleas) imposed by the sheriff and indicated that while it had been appropriate to consider custody, having regard to the appellant’s age at the material time a two year community payback order with supervision and 240 hours’ unpaid work would be substituted.

Sentencing: more partner abuse

In McLean v HM Advocate [2015] HCJAC 44 (29 April 2015) the appellant had been sentenced to two years’ imprisonment for assaulting his partner, with whom he had a 13 year relationship and two children. While in prison he made 60-70 phone calls to the complainer, who had ended the relationship. He expressed his affection and also asked her to contact the fiscal’s office to say she had exaggerated the circumstances. On release, the appellant attended at her home in breach of a non-harassment order. The complainer and the children were terrified and ran indoors. One of the children hurt herself during the incident. A few days later, near his father’s house, he met a relative who had been sent to persuade him to move away, and made threats to kill his father and sister.

The sheriff imposed 12 months’ imprisonment, discounted from 16 months, on each of the first two charges (contravention of s 39 of the Criminal Justice and Licensing (Scotland) Act 2010 and s 234A of the Criminal Procedure (Scotland) Act 1995), and six months, discounted from eight, on the third charge (2010 Act, s 38) – a total of 30 months, discounted from 40, to which a 12 month supervised release order, and five year non-harassment orders in relation to the partner and the father, were added.

While the appeal court agreed a custodial sentence was appropriate given a previous conviction for assault to severe injury, it noted the appellant had reduced his offending while in the relationship. Much of the conduct in charge 1 was ostensibly conciliatory. In the second charge the appellant had not entered the curtilage of the complainer’s home, and in the third charge the words were used in anger and no physical injury or contact had occurred. The court reduced the sentences, after discount, to six, eight and four months respectively, making a total of 18 months, discounted from two years. The periods set for the supervised release and non-harassment orders were left unchanged.

Sentencing: other cases

Also on 29 April, the court heard the appeal Darroch v HM Advocate [2015] HCJAC 40. The appellant pled guilty to growing 150 cannabis plants at his home, 50 being near maturity, with a total value between £20,000 and £30,000.

The appellant had served in Kosovo, Iraq and Afghanistan with the Royal Engineers and suffered post-traumatic stress disorder. The background report suggested a community payback order, but the sheriff had regard to guidelines in Lin v HM Advocate 2008 JC 142 and McCreadie v HM Advocate [2013] HCJAC 146 and imposed three years’ imprisonment, discounted from four years.

The appeal court considered the sentence excessive and reduced it to 18 months, discounted from 24 months. It took into account the appellant’s military background and recent mental illness, and the agreed narration that the plants had not been grown on a commercial scale but for the appellant’s use and that of his ex-military friends who had contributed to the costs. In this way the case could be distinguished from the “commercial farmer” guidelines cases.

In SB v HM Advocate [2015] HCJAC 56 (21 May 2015) the appellant had been convicted of abducting his son following a custody dispute and taking him to Coventry. He was sentenced to two years’ imprisonment. The appeal court regarded this as excessive for a first offender where there was no proven history of domestic abuse. The sheriff had accepted the appellant had been acting out of a misguided but genuine concern for his children. A nine month sentence was substituted.

The appeal court indicated that conduct of parents in snatching their own children in defiance of a civil court order should be dealt with as a contempt of court rather than a criminal prosecution: the latter course should only be used in exceptional cases where the conduct is so bad it would be regarded by the ordinary right-thinking person as criminal behaviour. Ultimately, however, such decisions may be a matter for the prosecution authorities if the case is brought to their attention first, for example following necessary police action rather than by reference to the civil court.

It should be borne in mind that the vast number of sentence appeals are unsuccessful and are not reported. In McNeely v HM Advocate [2015] HCJAC 45 (19 May 2015), a custodial sentence of four years for assault to severe injury, permanent disfigurement and permanent impairment involving the use of a hatchet, to run after an unexpired licence portion of a previous sentence, was left unaltered. It was accepted that in the circumstances a 12 month supervised release order was incompetent, and an extended sentence including two years’ supervision was substituted. The appeal court remarked that the sentence imposed, given the circumstances, could “only be described as at the lower end of available disposals”.

Moorov doctrine

As long as corroboration remains part of the criminal law of Scotland, the Moorov doctrine has an important part to play. While the rules have been relaxed somewhat in the 85 years since Moorov’s conviction, there are limits to this process, as in KH v HM Advocate [2015] HCJAC 42 (29 May 2015).

The appellant was convicted of two charges of rape which were separated by a period of almost eight years. He was convicted also of two charges of assault and one of culpable and reckless conduct, and sentenced to a cumulo term of seven years. Three complainers were involved. The appeal focused on the rape charges. Both incidents had occurred within relationships which the complainers had with the appellant. Both complainers were said to have been vulnerable.

The first complainer had only been 15 at the time. She had withdrawn her consent during consensual intercourse as she was bleeding but the accused continued. She had been injured as a result. In the other rape charge the complainer was a single mother of 22 at the time, while the appellant had been 31. On two occasions the appellant was said to have raped her, once in the shower and once when the couple were in bed.

It was accepted that where the interval between crimes is a long one, it is necessary to consider whether there are any extraordinary features in the evidence that nonetheless make the similarities compelling and indicative of an underlying course of criminal conduct pursued by the accused person.

The appeal court held that in this case the evidence fell short of what was required for Moorov to apply, as no special feature linked the incidents involving the two complainers. The Crown had sought to use the evidence from intervening assaults perpetrated by the appellant against the first complainer and a third complainer, but these were of a much less serious type than the rape allegations and did not involve a sexual element. While the incidents were said to depict a controlling course of conduct the appellant had towards his partners, the evidence could not be used to corroborate the rape allegations. The rape convictions were quashed and the appellant will be re-sentenced on the remaining charges.