Too long, too long?

Prison numbers have come down in recent times from almost 8,000 inmates a few years ago to around 7,400, including remand prisoners. When the presumption against short prison sentences is extended, perhaps up to 12 months as the Government plans, there will be a further significant reduction.

However, once some of the short sentence cases are stripped out, there remains a hard core of prisoners serving long-term sentences in excess of four years. The Scottish Sentencing Council may have an impact here when their guidelines come into force, as they have to be tested against a cost/benefit analysis in terms of s 3(5) of the Criminal Justice and Licensing (Scotland) Act 2010.

In the Justiciary Appeal Court, there have been some indications that long sentences should be reserved for the very worst cases. Life sentences for murder generally start at 12 years’ punishment part before parole is considered, compared to about 10-11 years for most life sentences served in the 1970s and 80s. Murder case numbers have significantly reduced over the last few years, due in large part to the way in which the possession of knives has been tackled.

In Lin v HM Advocate 2008 SCCR 16, the Appeal Court signalled that in most cases, persons involved in keeping cannabis-growing farms – so called “gardeners” – might expect a sheriff and jury sentence. The Crown has generally followed this lead and this has been necessary due to the huge increase in sexual offences, particularly those alleging historical sexual abuse, as such cases may make up as much as 75-80% of the High Court trial workload.

Against that background it is interesting to note the recent High Court appeal cases of VE v HM Advocate [2018] HCJAC 12 and Whiteford v HM Advocate [2018] HCJAC 13 (both 9 January 2018), and Stewart v HM Advocate [2018] HCJAC 23 (6 March 2018).

In VE the appellant was 15 and was convicted of the repeated rape of a girl aged five and six over an 18-month period, and sexually assaulting a girl aged seven or eight over the same period when he was aged about 14. A sentence of six years’ detention for the rape was held to be excessive and in its place was substituted three years nine months, with a year concurrent for the other offence remaining untouched. It was accepted that the incidents arose when the girls came to the appellant’s house to play with his sister, and no element of planning was involved. Their Lordships were guided by Greig v HM Advocate [2012] SCCR 57 at para 9 and the need in terms of the UN Convention on the Rights of the Child to ensure that the appellant’s best interests were a primary consideration and any sentence should have regard to his reintegration in society.

Whiteford pled guilty to possession of diamorphine worth £6,780 at street level, on a particular date, with intent to supply. The sheriff imposed 42 months’ imprisonment. The appellant was 36 and the mother of children aged five and nine. She had a similar conviction from 2010 when she received 32 months. She had not offended since and had mental health difficulties that rendered her vulnerable. There was no indication that the sheriff gave any reduction for the plea, tendered about a week prior to trial. The sheriff had not accepted that the appellant had held the drugs for a short time and preferred the information given for the reason why a search warrant was obtained, which suggested a period of dealing. This approach was held not to follow guidance on information in mitigation, and weight had to be given to the appellant’s personal circumstances: 30 months discounted from 33 months was substituted.

In Stewart, the appellant had been convicted inter alia of offences of indecent exposure. A community payback order had been imposed; however, he had breached this order twice and on the second occasion the sheriff revoked the order and imposed two consecutive sentences of 18 months’ imprisonment. Each sentence included six months to reflect the bail aggravation.

The appellant was 19 at the time of the offences and 20 at appeal; his record was not extensive and non-analogous. The offences did not involve physical contact with the complainers. The court regarded the sentences as excessive and substituted 12 months on each charge to run concurrently, which included three months to reflect the bail aggravations.

There are relatively few reported sentence appeal cases, as many are sifted out and few have any point of principle deemed worthy to report. These cases show the Appeal Court will look closely at the age and health of the offender, the degree of harm involved, whether dependants are involved and whether a discount has been properly considered at first instance.

In the past it was said that very few cases of domestic abuse were reported by police, due to the lack of corroborative evidence. Greater care is taken over these cases, whereby other evidence is gathered at the time by police officers with further investigative follow-up as necessary. A good example can be seen in Ingram v HM Advocate [2018] HCJAC] 16 (25 January 2018).

The appellant was convicted after trial of threatening behaviour against his partner contrary to s 38 of the Criminal Justice and Licensing (Scotland) Act 2010, and assaulting her on the same date.

The couple had been in an “on-off” relationship for around 10 years. In evidence the complainer denied she had been assaulted that night or that the appellant had been present. She said she had consumed a box of wine and fallen asleep. When she woke in the early hours she started phoning the appellant in anger as he had apparently gone socialising in Newcastle without telling her. Calls on her smartphone were routed through her television which amplified what the appellant had been saying. She became hysterical and shouting during this conversation, which woke the children. In their bedroom she blundered over some toys and fell, resulting in a bleeding nose. She was aware of neighbours shouting and banging on her door and opened a window to shout at a neighbour, leaving traces of blood.

A neighbour gave evidence of the complainer arguing with a male whose voice she recognised as the appellant’s. She heard the footfall of two people and heard the children as well as sounds of furniture being knocked over. She recorded events on her mobile phone until police attended.

Another neighbour attended at the door and the complainer shouted “Ryan, help me.” This neighbour could not gain entry, but heard sounds and screams consistent with the complainer being attacked by a male. A car drove off before the police arrived and the neighbour heard a female shout the appellant’s forename. Police gained entry and found signs of a disturbance, fresh blood and an injury on the complainer’s nose consistent with assault.

At appeal it was submitted there was no evidence of assault, but the court held there was a sufficiency of circumstantial evidence. The sheriff had been correct to repel a submission of no case to answer and the jury’s verdict was upheld.

There is rarely a day goes by in the criminal courts without a case where the Crown activates confiscation procedures on conviction. Sometimes these cases are straightforward in that they merely involve confiscating, rather than forfeiting money recovered at the time the offence is discovered. Use of confiscation procedures ensures the money remains in Scotland, rather than being sent to HM Treasury along with money recovered in fines.

Other cases are much more complicated and contested either towards a settlement or a proof, as in Farrell v Procurator Fiscal, Glasgow [2018] SAC (Crim) 3 (13 February 2018), an appeal against the confiscation of £277,382.14 following criminal proceedings for being concerned in the supply of cocaine. The appellant had been charged along with his father, in respect of whom a “not guilty” plea had been accepted. The offence was deemed of the “lifestyle” type under s 142 of the Proceeds of Crime Act 2002, which enables six years of financial information prior to conviction to be considered. The sheriff determined the recoverable amount; he had to consider whether making an order to that extent would be disproportionate, the burden of proof of which – on a balance of probabilities – lay on the appellant. It was said the father had been the source of the money and property but now suffered from dementia and was unable to give evidence at the confiscation proof.

The Appeal Court rejected criticisms of the sheriff’s approach and considered he was entitled to reject the appellant’s evidence, that he had made an order that was proportionate having regard to the appellant’s assets and had considered the various assets separately. The court felt it was desirable for the sentencing sheriff to deal with any confiscation proceedings.

It was dogs’ day at the Sheriff Appeal Court on 16 March 2018 when the fates of Sasha and Floyd, who both had sentences of death hanging over them, were determined. Feldwick v Procurator Fiscal, Edinburgh [2018] SAC (Crim) 5 involved Sasha, a Rottweiler cross-type dog, and Adamson v Procurator Fiscal, Kilmarnock [2018] SAC (Crim) 4 concerned Floyd, a Staffordshire bull terrier.

Sasha had run up and repeatedly bitten a greyhound, fortunately causing only minor bite injuries. Sasha had previously been the subject of a dog control notice imposed on 1 November 2016; the greyhound had been bitten on 24 July 2017. On the earlier occasion, Sasha escaped from the appellant’s insecure garden and bit another greyhound, causing a puncture wound to its leg. Both dog owners tried to separate the animals and were bitten. The appellant had been ordered to ensure a muzzle or halter was worn at all times, to take Sasha to training classes and ensure her garden was secure. The sheriff had been informed that in November 2016 the appellant was diagnosed with cancer and required to undergo treatment. She had been physically weakened and was unable to attend the training course. The vet’s report concluded Sasha was an extremely powerful and energetic dog; only an experienced person could handle and train her. The appellant had owned her for two years and had 20 years’ experience owning dogs.

The sheriff ordered Sasha’s destruction, but it was argued at appeal, taking the appellant’s circumstances into account, that a contingent destruction order could have been made under s 4A of the Dangerous Dogs Act 1991. This order offers a “last chance” to the owner and, indeed, the dog. It was submitted the circumstances had arisen because of the appellant’s illness and inability to have the dog undergo behavioural training. The appellant was noted as being of good character, and accordingly the court quashed the order for destruction and imposed a contingent destruction order that Sasha be muzzled and kept on a lead at all times when in public.

In Adamson, the appellant had pled guilty to a contravention of s 3 of the 1991 Act. Floyd was one of two dogs owned by the appellant which were involved in an incident with a husky dog and a woman who were both bitten. The sheriff obtained a report on Floyd before ordering destruction and rejected the option of a contingent destruction order. The Sheriff Appeal Court looked at the previous good behaviour of the appellant and Floyd, quashed the destruction order and imposed a contingent destruction order in similar terms to those in Sasha’s case.