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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Johnston
Lord Carloway
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[2006] HCJAC 4
Appeal No: XC166/05
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPEAL AGAINST SENTENCE
by
LEWIS RODDEN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Appellant: Jackson, Q.C., Mitchell; Mclure Collins,
Edinburgh (Ian McCarry, Glasgow)
Respondent: Turnbull, Q.C., A.D.; Crown Agent
15 December 2005
The background
[1] The
appellant, along with five other persons, Muir MacLeod, Lee Warren Burgun,
Charles Blades, James McInally and William Bennett were indicted together in an
indictment which contained three charges.
Charge (1) affected all six accused persons; charge (2), brought under section 47(1) of
the Criminal Law (Consolidation) (Scotland) Act 1995 and alleging having in a
public place an offensive weapon, namely a sword, was brought against the
appellant alone. Charge (3), also
brought under the same section of the same Act, alleging having in a public
place offensive weapons, namely a baseball bat, two hammers, a socket extension
bar and a wrench, was brought against Muir MacLeod
alone. Charge (1) in the indictment took
the form of an allegation that between 1 November 2002 and 30 November 2003, at
a number of places, the accused persons had conspired with each other and with
others to extort money and compel persons to enter into contracts with West
Coast Group and WCG (Scotland) Limited for the provision of security and
protection services at construction sites, building sites and business premises
in Ayrshire and to take over existing contracts for the provision of security
and protection services at construction sites, building sites and other premises
in Ayrshire from other persons, by criminal means, namely threats, menaces,
assaults, malicious damage to property, and wilful fireraising and in
furtherance of said conspiracy had done a wide range of acts specified. It is fair to say that the catalogue of acts
alleged to have been committed in pursuance of the conspiracy was of a very
serious nature.
[2] On
27 January 2005, the
appellant appeared at the High Court in Kilmarnock, along
with the five other accused, when he pled guilty to certain parts of charge (1)
and guilty to charge (2). The parts of
charge (1) to which he pled guilty were as follows:
"(o)(ii) on 15 September 2003 attend at the
construction site of Alexander Morton Homes at South Crescent Road, Ardrossan,
conduct yourselves in a disorderly manner, shout, swear, utter threats to
Gordon Wylie, c/o Strathclyde Police, Helen Street, Govan, an employee of
Guardwise Security and place the lieges and said Gordon Wylie in a state of
fear and alarm;
(iii) on 15 September 2003 at a car
park situated in Arran Place,
Ardrossan, assault Gordon Wylie, c/o Strathclyde Police, Helen
Street, Govan, slap him on the head and
kick him on the body to his injury."
The appellant's pleas of not guilty
to the remaining parts of charge (1) were accepted by the Advocate depute.
[3] The
sentencing judge was informed that the appellant had previous convictions. A schedule of these showed that on five
occasions he had been convicted under summary procedure of minor offences. On one occasion he had been convicted in the
High Court of Justiciary at Glasgow of assault
on 11 July 1990, when he
was admonished. He had never served a
custodial sentence. The appellant had
appeared on petition on 16
September 2004 and had been admitted to bail. He had appeared on a second petition on 15 December 2004 and had
again been admitted to bail.
[4] The
Advocate depute explained to the sentencing judge that the background to the
offences was intense rivalry between companies seeking to provide security
services to the building and construction industry and to other business in the
west of Scotland. The appellant and each
of his co-accused had been employed by, or associated with, a company called
West Coast Group, a security company based in St. Cuthbert's business
Centre, Maybole. It was a division of
West Coast Group (Scotland) Limited which had its headquarters in Kirkintilloch. As regards the circumstances of charge (1)(o)(ii) and (iii), the Advocate depute informed the
sentencing judge that both of the offences occurred on 15 September 2003. Alexander Morton Homes (Scotland) Limited
was a small company run by James and Alexander Benson, who were brothers. In September 2003, the company had been
involved in two developments in Ardrossan.
On one site the company had been constructing detached dwellinghouses,
whereas at another site it was renovating the former Ingledean Hotel in
Ardrossan. Security for both sites was
provided by Guardwise Security and the employee of Guardwise Security, who was
responsible for supervising the security arrangements at both sites, was Gordon
Wylie. Since February 2002, the Benson
brothers had been obtaining security services from different companies but
security was always under the management of Mr. Wylie. They had always used the company for whom he
was working, because they had confidence in him. Early in August 2003, each of the Benson
brothers received "cold calls" from representatives of West Coast Group, asking
about the security arrangements for Alexander Morton Homes (Scotland) Limited
and enquiring if any work was available.
The Benson brothers replied to the effect that they had satisfactory
arrangements in place for security.
Representatives of West Coast Group called at the site on three separate
occasions, namely on 13 August, 8 September and 11 September 2003 and on each occasion a
sales pitch was put to the Benson brothers.
On each occasion, the Benson brothers fobbed them off by saying that the
existing arrangements were "all right".
However, they indicated that there might be something in the future
which West Coast Group could do and they promised to bring up the West Coast
offer at a forthcoming board meeting, although in fact this was never
done. James Benson became concerned
about the possibility of potential difficulties arising between different
security companies and although, by that time, there had only been sales
pitches, he contacted the police. An
arrangement was made that the police would fit an alarm system at the site
operated by Alexander Morton Homes (Scotland) Limited
at South Crescent Road, Ardrossan. This
site was the site of the former Ingledean Hotel. The alarm system would enable the police to
be summoned in the event of any difficulties.
[5] On
15 September 2003, C.I.D.
officers came onsite to conduct a test of the system
just mentioned with the assistance of James Benson. The police officers got into an unmarked
police vehicle and drove away from the site for the purposes of conducting the
test. At that stage, two Mercedes
vehicles arrived on the construction site.
The first was a dark coloured Mercedes saloon, driven by Muir MacLeod
and occupied by Lee Burgun and another man.
The second vehicle was a Mercedes four-wheel drive, driven by the
appellant, in which William Bennett and James McInally were passengers. At almost the same time as their arrival,
Gordon Wylie walked onto the site with Alexander Benson. As they did so, all six occupants of the
vehicles alighted. Voices were raised
and abusive shouts were directed at Gordon Wylie by the group of men. Amidst the shouting and swearing, Mr. Wylie
and Mr. Benson realised that an accusation was being made that Mr. Wylie, or
someone from his company, had damaged a vehicle on a site guarded by West Coast
Group. This was denied strenuously by
Mr. Wylie at the time and was still denied by him. Mr. Benson was concerned at the scene
and said that he wanted everyone off the site.
Mr. Wylie indicated that he would leave the site and discuss
matters with the men from West Coast Group.
He was embarrassed at the disturbance in front of his employers. He drove off in his van, but one of the six
men got into the van with him. The other
five followed the van in the two vehicles.
Mr. Wylie had become concerned for his safety at this time and had
driven to a car park at Arran Place,
Ardrossan. This was an open space close
to the sea front. The two police
officers in the unmarked police vehicle had observed the convoy driving away
from the site. They were suspicious and
decided to follow the vehicles. They
summoned assistance from another unmarked police vehicle in the area and were
joined by it. They followed the convoy
to the car park at Arran Place. At the car park, the two Mercedes vehicles
parked close to the van and everybody, including Mr. Wylie got out of the
vehicles. When he had got out of his
van, he was standing with his back to one of the Mercedes vehicles. He was surrounded by all six men who were
shouting at him. He had become
apprehensive that violence would follow.
While he was standing there, James McInally stepped in front of him and
slapped him on the mouth and thereafter kicked him on the left shin. Mr. McInally was wearing workman's boots
which had steel toecaps. Mr. Wylie then
took a conscious decision not to retaliate in case something worse
happened. At that stage, the two police
vehicles drove up and stopped at the Mercedes vehicles and Mr. Wylie's
van. The police officers had witnessed
the assault. It was clear that
Mr. Wylie was bleeding from an injury to his left shin. The officers detained all of the six men and
attempted to provide first aid for Mr. Wylie.
[6] Mr.
Wylie was taken to the Accident and Emergency Department at Crosshouse Hospital, where he
required six stitches to his left shin.
All of the men from the Mercedes vehicles, including the appellant, were
conveyed to Saltcoats Police Station.
The Mercedes vehicles were also taken there and searched by police
officers. On the rear seat of the
four-by-four vehicle driven by the appellant, the officers saw a sword lying in
plain view. They took possession of
it. The sword was an ornamental sword of
a kind described as a Samurai sword. In
the boot of the Mercedes saloon driven by Muir MacLeod, the police recovered a
baseball bat.
[7] On
27 January 2005, the sentencing
judge deferred sentence until 18
February 2005 for the purpose of obtaining a social enquiry
report. The appellant was remanded in
custody. On the latter date, the
Advocate depute addressed the sentencing judge further, because counsel for the
co-accused, Muir MacLeod, had taken issue with some of his narrative and,
otherwise, it might have been necessary to have had a proof in mitigation. Further enquiries had been made since the
last hearing and the Advocate depute provided a more detailed account of what
had occurred on 15
September 2003 in relation to charge (1)(o)(ii)
and (iii). The Advocate depute stated
that although the last visit to the site had been on 11 September 2003, there
had been a further contact by telephone some days before 15 September 2003,
asking the Benson brothers for business.
The Benson brothers had expected someone from West Coast Group to call
again at the site on 15 September, but precise details were not clear. Nevertheless, West Coast Group had not been
hired by Alexander Morton Homes (Scotland)
Limited. Accordingly, on 14 September,
one of the Benson brothers contacted Mr. Wylie and asked if he could be on the
site on 15 September 2003. The purpose of this was to enable the Benson
brothers to discuss the general arrangements with Mr. Wylie, but also to show
West Coast Group that they already had security. On 15 September 2003, six individuals from West Coast
Group had appeared in the two vehicles and had immediately begun shouting and
making allegations about Mr. Wylie.
James Benson had accepted that he wanted everybody off the site and said
words to the effect of "Would you go off and sort this out between you". The reason for his doing so
was that, having heard the accusations being made against Mr. Wylie, he wanted
everybody to leave his site and have their row somewhere else. The Benson brothers had confirmed that at no
time were West Coast Group promised the security contract for Ingledean Hotel
and at no time were they hired to guard that site. Equally, as new sites became available, the
Benson brothers looked at the security requirements and, although Mr. Wylie had
always been responsible for such requirements in the past, it would not have
automatically followed that he would have been responsible for all future
sites. Subsequently, security for their
sites, including the Ingledean site, was transferred to another company
unconnected with Mr. Wylie, or the West Coast Group. One reason for that was the trouble which had
occurred on 15
September 2003.
[8] It
should be recorded that, following his hearing of a plea in mitigation on
behalf of the appellant, the sentencing judge imposed a sentence of 4 years
imprisonment in respect of charge (1), paragraphs (o)(ii) and (iii) and 4 years
imprisonment in respect of charge (2), said periods to commence from 27 January
2005. The sentencing judge explains in
his Report that he considered that the appropriate sentence in relation to
charge (1) would have been 4 years imprisonment. He states that he did not discount the
sentence because of his approach to charge (2).
Had the appellant been convicted of these offences after trial, he
states that he would have imposed consecutive sentences in respect of charge
(1) and (2). He explains that having
regard to the nature of the weapon with which charge (2) was concerned and to
the general background of the case he considered that it was appropriate to
impose the maximum available sentence of 4 years imprisonment in respect of
charge (2). He states that he was
reinforced in that view by the appellant's previous convictions, which he
thought were of some relevance, although he did not attach much significance to
them. If the appellant had been
convicted after trial of the offences to which he had pled guilty, he states that
he would have imposed consecutive sentences resulting in an overall sentence of
6 years imprisonment. For that reason he
states that he did not discount any of the sentences of 4 years imprisonment,
but made them concurrent and backdated them to 27 January 2005.
The submissions
[9] Senior
counsel for the appellant contended that the sentences imposed upon his client
were excessive. He drew our attention to
the Note of Appeal lodged on behalf of the appellant. He explained that the grounds of appeal fell
into two categories. First, there were what might be described as normal grounds of appeal
against sentence. These included
reference to a number of features of the case.
In summary, these were the fact that the appellant had pled guilty; the fact that the appellant had not been the
actor in the offence of assault, but had pled guilty on an art and part
basis; the fact that the appellant had
not offended in the 15 years prior to the incident concerned; the fact that the offences of breach of the
peace and assault had occurred without premeditation, being spontaneous
reactions to the situation which had developed;
the fact that the sentencing judge had taken into account a range of
matters which were irrelevant to the situation of the appellant; the fact that the sentencing judge had imposed
the maximum sentence available in respect of the offence to which charge (2)
related; and the fact that the offensive
weapon concerned had never left the motor vehicle at any time during the course
of the incident. The ground of appeal in
the second category was stated thus:
"(iv) an indication was
given that if the appellant pled guilty to the charges his sentence would be
one of 2 years imprisonment on each charge, concurrent."
[10] Senior counsel then proceeded to address us on what he
described as the normal grounds of appeal against sentence. He emphasised the points already narrated.
[11] Senior counsel went on to explain to us that, in addition to
the sentencing judge's Report, a transcript of the proceedings had been
obtained, at the request of this court.
He drew our attention to the remarks of the sentencing judge between
pages 168 and 171 and 175 and 178.
Senior counsel submitted that in the earlier of these passages the
sentencing judge had commented upon the problems caused in the United
Kingdom by the involvement of criminals in
firms providing security at construction sites and elsewhere. He went on to speak of credit being due to
the Mirror Group Newspapers, which had drawn the attention of the public to
this problem in Scotland. The sentencing judge had commented that the
crimes with which he was dealing were reminiscent of the activities of
organised crime in the United
States of America in the
last century. He had then stated that he
considered that, if any of the accused had been convicted of the crime of
conspiracy, or even of a significant number of the incidents specified in
charge (1) of the indictment, which, of course, they had not, in his opinion
the appropriate sentences would have been in "double figures", even for first
offenders.
[12] He went on to submit that in the later of the two passages, it
was unclear how the sentencing judge had approached the matter of discount for
the plea of guilty. He appeared to have
conflated the issue of discount with the question of whether the sentences
imposed in relation to the offences with which he was dealing should be
consecutive or concurrent. He had stated
that, had the appellant not pled guilty, he would have been given a consecutive
sentence, which would have resulted in an overall sentence of "at least 6
years".
[13] The gravamen of the submissions on behalf of the appellant was
that the sentencing judge had distracted himself, by a consideration of matters
with which he was not properly concerned, when sentencing the appellant. In particular, he had expatiated upon evils
in other parts of the world arising from competition in the security
industry. The fact was that the
appellant had pled guilty to a very limited part of charge (1). In particular, he had not been involved in
any conspiracy of the kind alleged there.
Inexplicably, the sentencing judge had contemplated the sentence which
he might have imposed if any of the accused had been convicted of the crime of
conspiracy, or a significant number of the incidents specified in charge (1),
which they were not. It was submitted
that the sentencing judge's concern with those matters appeared to have
deflected him from a proper consideration of the offences with which he was
actually dealing.
[14] At this point in the submissions for the appellant senior
counsel raised the question of whether he should now proceed to address the
court on the ground of appeal relating to an alleged prior agreement, quoted
above. Having adjourned to consider the
issue, we concluded that, in view of the criticisms already advanced of the
approach of the sentencing judge, we were satisfied that he had taken into
account irrelevant matters in exercising his discretion. Accordingly, the matter of a sentence was now
a matter for the discretion of this court.
Having been given that indication, senior counsel indicated that he was
content that this court should consider the matter of sentence and select a
sentence of its own which it considered to be appropriate. Accordingly he did not address the court
further.
Decision
[15] We have been persuaded that, in this case, the sentencing judge
took into account matters which appear to us to be irrelevant to the decision
which he had to make. He expatiated upon
the evils of aggressive competition between providers of security in other
parts of the United Kingdom and the United
States, which appear to us to have
nothing whatsoever to do with the position of the appellant. In any event, he was not addressed by the Crown,
or counsel for the appellant, on such alleged evils. While the background to the appellant's
offences, which we have described, must plainly be taken into account in any
decision as to an appropriate sentence in his case, we consider that the sentencing
judge went far beyond that. Furthermore,
for reasons which we do not understand, he entered upon a consideration of the
completely hypothetical issue of what sentence might have been appropriate if
the conspiracy charge, or a significant number of incidents specified in that
charge, had been established. Conspiracy was not established, nor were what the sentencing
judge calls a significant number of the incidents specified in it. In our view the sentencing judge appears to
have distracted himself by consideration of this hypothetical matter from a
proper consideration of the appropriate sentence in the case of the offences to
which the appellant pled guilty.
[16] Furthermore, we have experienced insuperable difficulty in
understanding the rationale of the sentencing judge, as set forth at pages 176
and 177 of the transcript. It appears to
us that the issue of whether the sentences on charge (1) and (2) should be
consecutive or concurrent was a quite distinct one, which would have had to
have been resolved according to the recognised criteria for such matters. However, the sentencing judge has treated
that issue as, in some way, related to the issue of a discount for a plea of
guilty, in a way which, quite frankly, we do not understand.
[17] In these circumstances we have come to the conclusion that the
sentencing judge's exercise of his discretion in the case of the appellant's
sentences was flawed and that those sentences are now a matter at large for the
exercise of our discretion. Having
regard to the whole circumstances of the appellant himself and of the offences
and the limited involvement which he had in the matters averred in charge (1)
we have come to the conclusion that an appropriate starting point for a
sentence in his case would have been one of 3 years imprisonment. As regards charge (2), it is plain that this
was a serious offence of its kind. In
these circumstances we consider that once again a starting point of 3 years
imprisonment would have been appropriate.
We consider that a discount of one third would have been appropriate in
relation to each sentence to reflect the pleas of guilty. In our view, having regard to the
circumstances of the two offences it is quite clear that the sentences imposed
in respect of them ought to run concurrently, having regard to the recognised
criteria in regard to such matters.
Accordingly, we shall quash the sentences imposed by the sentencing
judge and substitute for them in the case of both charge (1) and charge (2)
sentences of 2 years imprisonment which will be ordered to run concurrently
from 27 January 2005.
