Sentences in many guises

With the new legal year upon us, there is a healthy clutch of cases to consider this month. Many deal with aspects of sentencing across the full range of gravity.

Embezzlement: custody?

In Farquhar v HM Advocate [2018] HCJAC 56 (24 July 2018) a 70-year-old female first offender had embezzled £72,155.34 over eight years while acting as church treasurer. The sheriff imposed 18 months in prison, reduced from two years to reflect an early plea.

The appellant had issued cheques to herself totalling £60,000 and failed to bank more than £12,000 from church collections. When sentenced, she had repaid £15,000. She had various health difficulties and needed two walking sticks. She had fallen into debt due to house repairs and had used the money to pay credit card debts and living expenses. Apart from a few years’ maternity break, she had worked from age 17 until 62. She had cared for her late husband during his illness. The sheriff declined to grant further time for repayment, but full repayment had been made by the date of appeal.

The Appeal Court noted, as regards Dolan v HM Advocate 1986 SCCR 564 and White v HM Advocate 1987 SCCR 73 where £23,000 and £20,000 respectively had been embezzled and prison sentences were quashed, that an appropriate comparison could not be made without taking into account the effect of inflation. The appellant having spent seven weeks in custody, the sentence was quashed and a fine of £15,000 substituted.

Extended sentence v OLR

A Crown appeal against sentence was taken in HM Advocate v McCuaig [2018] HCJAC 55 (21 September 2018). A 22-year-old first offender had pled guilty to 20 charges in a 35-charge indictment, committed over an 18-month period. He admitted to taking indecent images of children, possessing extreme pornography and sending images to eight complainers aged 12 to 15, each comprising a naked female body with the complainer’s head superimposed, and threatened to post the images on the internet if the complainers failed to send him a sexual image of themselves. In another instance, he sent similar threats without an image. Three complainers had succumbed to the threats. They became very distressed.

After obtaining social work and two psychiatric reports, the sheriff imposed an extended sentence comprising three years’ custody and a three-year extension period, with notification requirements for an indefinite period under the Sexual Offences Act 2003. The social worker, who had not seen the police report, suggested the respondent be considered a high risk of reoffending and required a high level of treatment, and recommended a remit to the High Court for consideration of an order for lifelong restriction (OLR) assessment. Both psychiatrists expressed concerns: one reckoned the respondent required complex multi-agency interventions akin to those required for offenders being considered for MAPPA level 3 or an OLR; the other considered the respondent immature for his years. The Crown argued that the sentence did not provide for rehabilitation risk assessment and management.

The court noted both psychiatrists were very eminent. While their reports expressed an ongoing risk in the absence of intervention, change programmes such as Moving Forward Making Changes were available in prison, and monitoring and conditions included in the extended sentence order, as well as the sexual offences notification scheme, would provide sufficient to deal with the risks identified. The sentence imposed was not unduly lenient as neither psychiatrist had suggested an OLR was required.

Sentencing the young offender

In McAulay v HM Advocate [2018] HCJAC 53 (22 August 2018), a first offender, aged 17 but 16 at the time of the offence, had been unanimously convicted of culpable homicide and two ancillary charges.

As a gang member, he had chased and fatally stabbed a rival gang member.

His appeal against conviction was unsuccessful, but nine years’ detention was reduced to seven on account of his youth (cf E (V) v HM Advocate 2018 SLT 246 and cases cited), significant provocation on the part of the deceased and as the single stab wound had been in the groin area rather than the chest (cf Spence v HM Advocate 2008 JC 174).

Serious organised crime element

Simpson and Wallace v HM Advocate [2018] HCJAC 49 (6 September 2018) involved being concerned in the supply of crack cocaine and diamorphine worth up to £100,000 over a seven-week period.

The appellants pled guilty at the trial diet; Simpson was sentenced to eight years, six months’ imprisonment and Wallace to six years, six months, each with 12 months attributable to a serious organised crime aggravation.

Simpson had controlled supplies in Aberdeen and gave instructions to another who made deliveries. Wallace delivered drugs from his home to end users, receiving accommodation and drugs in exchange.

It was argued that the 12-month enhancements involved an element of double counting, as the circumstances that gave rise to the aggravation were the same as the offences themselves. The Crown did not oppose this submission in light of HM Advocate v Steven [2017] HCJAC 7. The court agreed there were no other factors that merited imposing an element for the aggravation, and reduced each sentence by 12 months.

Discounts for penalty points

I thought this matter had been sorted out painfully once and for all in Saini v Harrower [2017] SCCR 530, and indeed in Gemmell v HM Advocate 2012 JC 223, but the Sheriff Appeal Court remitted to the High Court Wilson v Procurator Fiscal, Aberdeen [2018] HCJAC 50 and Gallagher v Procurator Fiscal, Glasgow [2018] HCJAC 51 (both 4 September 2018).

In Wilson, the justice, dealing with a case of speeding at 80mph in a 60mph zone, reduced a £250 fine by a fifth to £200, but imposed four points without a discount, taking the appellant’s points total to nine. She reasoned that a 20% discount would have represented a reduction of 0.8 of a point, which she was unable to do! The SAC noted they saw cases regularly where there was a discrepancy between the level of discount for a fine and penalty points, and wished guidance in the matter. The position was different in England & Wales in that no reduction was made in ancillary orders such as disqualification and endorsation.

The Appeal Court held that s 196 of the Criminal Procedure (Scotland) Act 1995 applied to all punitive elements of a sentence. The sentencer should apply the same level of discount to all parts of the sentence, unless this was impossible as a minimum number of points or period of disqualification had to be imposed. Pragmatism had to be employed and fractions of a penalty point might be rounded up or down. Public safety should not be taken into account when determining the level of discount, though it might play a part in assessing the headline sentence. It was also for the SAC to determine whether a case raised a point which was “complex or novel” so as to merit a reference to the High Court. The case was remitted back.

Similarly in Gallagher (driving with breath alcohol count of 74), where a £400 fine had been discounted to £325, an 18-month disqualification ought to have been discounted at the same rate.

Travel restriction order

I must say this disposal had not occurred to me until I saw O’Neil v HM Advocate [2018] HCJAC 47 (14 June 2018). In my view, sheriffs have not changed in outlook since the days of Wyatt Earp and are often pleased when the accused indicates he is about to leave town. O’Neil had pled guilty to being concerned in the supply of cocaine over a month in 2013, aggravated by a connection with serious organised crime. It was suggested the appellant had only been involved on a single day, delivering £45,000 worth of drugs in a car modified to secrete the drugs. He subsequently followed up with action for money outstanding on the deal. Eight years’ imprisonment, to which a year was added due to the serious crime aggravation and then a discount to seven years, four months, was upheld. A two-year travel restriction order, to run from the appellant’s date of release, was quashed as no specific reason had been given by the sentencing judge, nor was there any evidence the appellant would become involved in the direct importation of drugs outside the United Kingdom.

Speeding disqualification

The Sheriff Appeal Court dealt with Love v Procurator Fiscal, Kilmarnock [2018] SAC (Crim) 12 on 20 June 2018. The appellant pled guilty to speeding at 93mph on the 70mph M77. English sentencing guidelines referred to by the justice indicated the offence fell in the middle band. The appellant had a significant driving record and the court agreed the offence merited a period of disqualification, but two years (discounted by a third) was excessive and a starting point of 12 months was selected, discounted by a sixth to 10 months (cf Wilson, above).

Section 38(1): religious prejudice

In Orr v Procurator Fiscal, Paisley [2018] SAC (Crim) 11 (14 August 2018), the appellant had been convicted of a Criminal Justice and Licensing (Scotland) Act 2010, s 38(1) offence after police, following complaints, found him outside St Mirin’s Cathedral with a placard bearing the words “God hates Catholics” on one side and “God hates the Kirk” on the other.

The SAC had no difficulty agreeing with the trial sheriff that directing the former side of the placard directly at worshippers was unacceptable behaviour in a tolerant, civilised society and could only be characterised as abusive and likely to cause a reasonable person fear or alarm; the appellant had been reckless, thus all of the constituent elements of the s 38(1) offence had been established. An appeal against a fine of £400 at £20 per week was also refused having regard to his personal circumstances and a 2016 fiscal fine for an analogous matter.

Section 38(1) or breach?

Recently I was amazed to see a libel that appeared to allege an attempted extortion as a contravention of s 38(1) or alternatively an identically worded breach of the peace. In McConachie v Procurator Fiscal, Aberdeen [2018] SAC (Crim) 10 (14 August 2018), the appellant was originally charged under s 38(1), but at the conclusion of the Crown case, the fiscal conceded there was insufficient evidence for that charge. A submission of no case to answer in respect of the common law alternative of breach of the peace was repelled by the summary sheriff. The complainer, aged 12, had been on a bus where the 65-year-old appellant had been intermittently smiling and winking at him. As he got off the bus, the appellant wrote his name, address and phone number on the back of his ticket and placed it on the complainer’s gym bag. The complainer described feeling “stressed” and “uncomfortable” over what had happened, and an adult witness thought the encounter “did not seem right” and “seemed off”.

Applying the test in Smith v Donnelly 2002 JC 65 at para 17, quoting Ferguson v Carnochan (1889) 16R (J) 93, the conduct was not “severe enough to cause alarm to ordinary people and threaten serious disturbance to the community”, or “conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person”. While the appellant’s behaviour was inappropriate, and impudent towards a child he did not know, it did not amount to a breach of the peace and the conviction was quashed.

Adjournment of summary trials

A strong line was taken by the Sheriff Appeal Court in Kane v Procurator Fiscal, Hamilton [2018] SAC (Crim) 13 (14 August 2018). A drink driving trial was adjourned twice on Crown motion due to illness of an essential witness. The charge alleged more than four times the legal limit; a further adjournment was granted for the same reason 10 months after the alleged offence. The court reiterated that the decision whether to grant an adjournment is a discretionary one; an appeal court would only intervene if the decision was one no reasonable sheriff would have reached. It also remarked that a bill of advocation in such circumstances was not competent other than in very special circumstances.

Search without warrant

In Kyle v HM Advocate [2018] HCJAC 45 (14 September 2017), evidence was heard for a debate on a preliminary issue in a drugs trafficking case regarding the finding of two bags of diamorphine in the appellant’s home. A constable had been allocated a missing person inquiry of a high-risk nature where there was concern re the person’s wellbeing. He and a colleague called at the appellant’s home, but received no reply. They could hear a dog inside and neighbours said the occupants had not been seen since the missing person report.

The officer considered an injured person could be lying in the property and forced his way in. The doors had been barricaded and the dog appeared to have been unattended for some time. A search for dog food and evidence of the occupants’ whereabouts revealed brown powder in a cupboard.

Once no one was found at risk, a search warrant was obtained to recover the powder. The court was satisfied the police were acting in good faith and the drugs found were admissible in evidence.

Four years later – a record?

I am not sure how Fenton v HM Advocate [2014] HCJAC 70 (10 June 2014, but published on 13 September 2018) came to our knowledge so late on, but it is a helpful opinion that may have been known only by a select few. The accused was convicted on a Moorov basis in May 2013 of two charges of rape and two of sexual assault over a 10-month period in 2011 and 2012.

The Appeal Court considered the similarities in the charges particularly strong, as the complainers were young women who were strangers to the appellant. All the offences took place in the appellant’s home and each complainer had been given alcohol by the appellant, after which he engaged in sexual activity with them. The appellant denied administering any stupefying substance and claimed all sexual activity had taken place with consent. A no case to answer submission on the whole indictment was repelled in respect of four of the five charges and the appellant was convicted on those charges as libelled.

The main point at issue was corroboration of the complainers’ lack of consent. The third complainer said she had not consented to intercourse and had woken about 5.30am having become unconscious or fallen asleep. She had no prior relationship with the appellant, had only met him once before and felt uncomfortable when he talked of paying money for threesomes. She had gone to the appellant’s home that night with her boyfriend, but he had left unexpectedly. The first complainer had seen the appellant on top of the third complainer, who was not making any noise or moving. The trial judge had been careful to warn the jury that that piece of evidence did not corroborate a lack of consent, but the evidence from the other complainers relating to administration of some substance into their drinks could. The court ruled there had been no misdirection, and even if there had been a technical one, there would have been no miscarriage of justice, such being the strength of the Crown case.