Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC70

HCA/2015-1786/XC

Lady Paton

Lord Matthews

 

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST SENTENCE

by

FRANCIS CRAWFORD

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  S Collins, Sol Adv;  Wilson McLeod

Respondent:  M McFarlane AD;  Crown Agent

28 July 2015

[1]        The issue in this appeal is whether it was competent for the sheriff to impose an extended sentence.  Section 210A of the Criminal Procedure (Scotland) Act 1995 provides:

“(1) Where a person is convicted on indictment of a sexual or violent offence, the court may, if it-

(a) intends in relation to  -

(i) a sexual offence, to pass a determinate sentence of imprisonment; or 

(ii) a violent offence, to pass such a sentence for a term of 4 years or more; and

(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender,

pass an extended sentence on the offender.”

 

[2]        The offences to which the appellant pled guilty can be summarised as follows.  Charge 1:  on 28 January 2015, breaking into a flat in Edinburgh and stealing a ring.  Charges 4 and 5:  on the same day, (28 January 2015) assaulting a 61-year-old lady who was parking her car in Edinburgh.  After struggling with her and punching her twice in the face, the appellant forcibly obtained her car keys and drove off in her car.  A passer-by tried to stop him, but the appellant drove the car in a dangerous manner at the passer-by, who had to jump out of the way.  The appellant continued to drive dangerously, failing to comply with one-way systems, crossing a central reservation, and colliding with a bollard and a parked car.  The offences were indicted as (charge 4) assault and robbery, and (charge 5) dangerous driving contrary to section 2 of the Road Traffic Act 1988.  The final charge to which the appellant pled guilty took place on a subsequent day, namely, 2 February 2015, when again he was driving dangerously (charge 8).

[3]        On 12 May 2015, the sheriff (Sheriff Maciver) imposed the following sentences:  charge 1, nine months;  charge 4, three years ;  charge 5, nine months;  charge 8, two months.  The sentences were to run consecutively, and therefore the total custodial sentence was four years eight months.  The sheriff also imposed an extension period of three years three months in terms of section 210A of the 1995 Act, resulting in an extended sentence of seven years 11 months (namely four years eight months in custody and an extension period of three years three months).

[4]        Before us Mr Collins, solicitor advocate for the appellant, submitted that it was incompetent to impose an extended sentence in the circumstances, as the only violent offence was charge 4, the robbery.  The sentence imposed in respect of that offence was three years, and accordingly it did not qualify for the imposition of an extension period in terms of section 210A.  Also there was no report as required in terms of section 210A(4).

[5]        The sheriff’s explanation in his report was as follows:

“...one of the issues in this appeal is whether the actions of the appellant amount to ‘a violent offence’, and I detail below the circumstances which I believed did qualify his conduct for that description.

...he placed himself between [the driver] and the car door so that she could not close it and he then seized her hand and tried to prize her hand open in order to get the keys from her.  There was a struggle during which he failed to get the keys from the lady, and he then punched her twice in the face.  There was a further struggle thereafter during which she sound the car horn while still struggling and reached into the car to do so.  The accused pulled her away from the car, managed to force the keys from her grasp, jumped into the car and began to drive it forward.  In a sense that brings charge 1 to a conclusion but there is a continuation of the incident because another witness saw the end of it, heard the horn, realised what was happening and ran forward as the car began to drive off.  The appellant then drove the car at him at speed and he had to jump clear to avoid being struck.  That was not charged as an assault but rather as dangerous driving and is narrated in charge 5 of the indictment.  The car then made off at speed and in the manner narrated in the charge to the danger of further road users and pedestrians.  I regarded that whole matter as one ongoing incident and I was clear that it was a violent crime not just in relation to the beginning of the assault and car robbery but also in the continuation of it by violent and dangerous driving acts.  My start point for sentence in relation to that whole incident was one of 5 years imprisonment which because of [the] plea was discounted to 3 years 9 months, and the only reason that I split it into two custody parts, (3 years for charge 4, and 9 months for charge 5), was because of the requirement to pass separate sentences in respect of common law and statutory crime.  (Charge 5 carries a maximum sentence of 2 years imprisonment.”

 

[6]        In our opinion, the appellant’s criminal behaviour following upon the robbery has been correctly indicted as the separate statutory offence of dangerous driving contrary to section 2 of the Road Traffic Act 1988.  We do not accept that a conviction in terms of section 2 can be categorised as a “violent offence” in terms of section 210A.  We consider that driving can be dangerous without the mens rea necessary for violence.  If the Crown had wished to indict the driving as a crime of violence, that could have been achieved by indicting either assault, or attempted murder, or some similar violent offence.  Thus it is our opinion that for the purposes of section 210A the only violent offence on the indictment was the offence of robbery libelled in charge 4.  The sheriff having imposed a sentence of three years in respect of the robbery (i.e. less than the four year threshold specified in section 210A), the option of an extended sentence was not, in our opinion, available to him. 

[7]        Even if we adopted the sheriff’s suggestion that the robbery in charge 4 and the dangerous driving in charge 5 were component parts of one violent incident, the total of the sentences imposed would be three years nine months - again, not passing the four year threshold in section 210A.  Finally, even if we were to view charges 4, 5 and 8 together, as suggested by the sheriff at page 4 of his report, the total of the sentences imposed would, according to our calculations, be three years 11 months, which is still below the four year threshold. 

[8]        In the result therefore we agree with Mr Collins that the only “violent offence” in the indictment which would permit the application of section 210A was the offence of robbery in charge 4.  A three year sentence having been imposed in respect of charge 4, the option of an extended sentence in terms of section 210A was not open to the sheriff, and the purported imposition of an extended sentence was incompetent, a fortiori without the appropriate report in terms of section 201A(4). 

[9]        We shall therefore quash the extension period of three years three months.  We confirm that the custodial sentences remain as:  charge 1, nine months;  charge 4, three years;  charge 5, nine months;  charge 8, two months, with the sentences running consecutively.  The total custodial period is therefore four years eight months.  There is a suggestion at page 5 of the sheriff’s report that a supervised release order might be imposed, but our understanding is that a report would be required for that purpose also.  We have no such report, and we therefore do not impose an SRO.  In the result the appeal is allowed.