Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 56

HCA/2016/000094/XC

Lady Smith

Lord Brodie

Lord Malcolm

OPINION OF THE COURT delivered by LADY SMITH

in

APPEAL AGAINST SENTENCE

by

JASON THOMAS O’NEIL

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Mackintosh; Faculty Services Limited

Respondent:  Nicol, advocate depute; Crown Agent

10 June 2016

Introduction

[1]        In this appeal against sentence, at the close of the hearing we gave our decision – to refuse the appeal – and indicated that we would provide written reasons at a later date. That we now do.

[2]        The appellant pled guilty, at Dundee Sheriff Court, to the following charge of assault:

 

 

“on 22^nd September 2015…….you …did assault GG, your partner…..and did sit astride her, pin her down, seize her by the wrist, bite her on the head, rip out her hair, place her in a headlock, cover her nose and mouth with your hand, repeatedly strangle her, kick her on the head, strike her on the head, seize her by the body, pull her to the ground, tear her clothing and utter threats of violence, all to her injury;

you…did commit this offence while on bail, having been granted bail on 28^th April 2015 at Dundee Sheriff Court.” 

 

He had also been convicted of two separate charges of assault involving the same complainer, in 2014 and sentenced to 6 months detention.  Whilst the charges were prosecuted on the same indictment, we do not consider it wrong to describe the appellant – using the plural as referring to the multiplicity of charges - as having previous convictions for violence.  Significantly, this conviction related to the third occasion on which the appellant had assaulted the complainer in a relatively short period.

[3]        On this occasion, a custodial sentence was, again, imposed.  The sheriff sentenced him to a period of imprisonment of 24 months, discounted in terms of section 196 of the Criminal Procedure (Scotland) Act 1995, from a headline sentence of 30 months.  He also made a Supervised Release Order (“SRO”) for a period of 12 months.

[4]        The offence on 22 September 2015 occurred at the appellant’s house, after he and the complainer had argued about a mobile telephone and money.  The complainer telephoned the police when she got free of the appellant;  when she told him she had done so, he said to her:  “I’m gonna kick fuck out of you before they get here, so it’s worth going to jail for.”

 

The Issues

[5]        Two issues were raised in this appeal:

1. Whether the sheriff was entitled to impose the SRO at all?
2. Whether, if he was entitled to do so, he erred in failing to discount its length?

The Sheriff’s Reasons

[6]        In his report for this court, the sheriff states that he was concerned by the appellant’s propensity for violence.  The sheriff’s conclusion that the appellant  had that propensity is based on a number of factors: his record of previous convictions (which, in addition to the previous assaults on the same complainer, included convictions for vandalism, breach of the peace, breach of court orders, theft and road traffic offences); escalation in his violent behaviour; his failure to comply with previous non-custodial disposals; his recognition that he has an anger management problem and his report to the author of the Criminal Justice Social Work Report (“CJSWR”) that he uses marijuana to control his anger.

[7]        Regarding his decision to impose the SRO, the sheriff refers to advice within the CJSWR that there is a need for work to be done with the appellant to help him overcome his aggression and avoid further offending and to the action plan proposed being one which would take twelve months to complete.

[8]        In the circumstances, the sheriff considered that a “full 12 months SRO would be required.”

 

Criminal Justice Social Work Report (“CJSWR”)

[9]        The context in which the author of the CJSWR recommended the 12 month action plan was as follows:  the author’s professional opinion that the appellant posed a significant risk of physical and psychological harm to the complainer; her view that the harm may be imminent given previous failures to comply with bail conditions not to approach or contact the complainer;  her opinion that he has a propensity for violence against women and may present a risk to future intimate partners if that propensity is not addressed; his admitted anger management problem; and that it was a matter of concern that a young man (only just 21 years of age) was accumulating a significant offending history that was escalating in severity.  Regarding his attitude to women, it is also perhaps of note that the CJSWR records that the appellant acknowledged that there was another woman in his life who was frightened of him  - namely, his mother – as he has displayed threatening and hostile behaviour towards her and in her home.

 

The Appeal

The first issue

[10]      Relying on that part of the CJSWR where the author states “…it does not appear Mr O’Neil is a significant risk of harm to the general public at this time” and a submission that, contrary to the sheriff’s observation that the appellant had previous convictions for violence, he had only one such conviction, counsel submitted that the sheriff was not entitled to conclude that the imposition of an SRO was necessary to protect the public from serious harm on the appellant’s release.  Whilst accepting that the appellant’s ex- partner and future partners were members of the public, he submitted that the sheriff had failed to direct his mind to the question of whether or not the order was necessary for public protection: Hepburn v HMA 2002 SCCR 934.  His concerns could have been met with the imposition of a non- harassment order.

[11]      We reject this ground of appeal.  In all the circumstances, the sheriff was plainly entitled to conclude that such an order was necessary for protection of the public nor can  we accept that he failed to have regard to the test of necessity. All that he says in his explanation for imposing the order is redolent of him concluding that that test was met. 

 

The second issue
[12]      This ground of appeal was based, firstly, on the proposition that SRO’s are distinct and different. They were said to be akin to the supervision requirement in a Community Payback Order. Unlike extended sentences imposed under section 210A of the 1995 Act, they do not impose an additional period of licence.  They simply render release from custody which would otherwise be unconditional, conditional.  It was, however, accepted that the focus on public protection was an element common to both and, ultimately, that the terms of section 18 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which put an offender who breaches an SRO at risk of being returned to custody, mean that, in effect, there is no distinction to be drawn between extended sentences and SRO’s so far as the potential consequences for the offender are concerned.

[13]      We can deal with this aspect of the argument briefly. Such distinctions and differences as exist between SRO’s and extended sentences are not, in any way, indicative of the length of an SRO being amenable to a section 196 discount. On the contrary, importantly for present purposes, they both fall into the category of sentences imposed for the purpose of protecting the public.

[14]      Secondly, this ground of appeal was based on a submission that, on the authority of Gemmell v HMA 2012 JC 223, section 196 of the 1995 Act applies to SRO’s as much as to the custodial element of the sentence.  Reliance was placed on the only express exception to discounts referred to in Gemmell being the extension period in an extended sentence. Reliance was also placed on the fact that in Robertson v HMA, one of the appeals heard together with the appeal in Gemmell, the court reduced not only the headline sentences but also the length of the SRO that had been imposed.  At paragraphs 88 - 9, dealing with the appeal in Robertson, the Lord Justice Clerk (Gill) – as he then was – said:

“ [88] On 4 February 2009 the sheriff sentenced the appellant to 20 months’ imprisonment, discounted from a period of two years, and imposed a supervised release order in terms of sec 209 of the 1995 Act for a period of ten months. He had regard to the appellant’s serious record for offences of violence including assault and robbery, for which he had served terms of imprisonment. He placed great significance on the need to protect the public, and on that account restricted the discount to one – sixth.

[89] In my opinion, the headline figure of two years’ imprisonment was appropriate. In deciding on that figure the sheriff took into account the element of public protection. In this case too I would allow a discount of 25 per cent in the circumstances and apply it to the whole starting figure of two years. I would therefore substitute a sentence of 18 months’ imprisonment, and therefore a supervised release order of nine months.”

 

Simply put, the appellant’s reading of “therefore” at the end of the penultimate line of para 89 (as set out above) was that it related to the discount – the headline sentence had been discounted by 25 per cent, “therefore” the SRO required to be discounted by 25 per cent.  That reading is, however, conclusively shown to be flawed by two separate means.  First, when discussing extended sentences, the length of which is whatever period the court considers “necessary” (section 210A(2)(b) of the 1995 Act) “for the purpose of protecting the public …” (section 210A(1)(b)), the Lord Justice Clerk, at paragraph 67, had said:

“…..the obligation to impose whatever extension period is “necessary” for the purpose of protecting the public excludes the possibility of it being reduced to a period that ex hypothesi  is not sufficient for that purpose by way of discretionary discount..”.

 

To have discounted the SRO in Robertson would have flown in the face of that clear and strong statement of principle.  The application of section 196 cannot, accordingly, be the explanation for the reduction in the length of the SRO in Robertson.

[15]      Secondly, there is a simple explanation for the reduction.  Once the headline sentence had been discounted to 18 months, the section 209(7)(b) ‘”cap” applied.  Had the SRO remained at 10 months, its length would have exceeded “the date by which the entire term of imprisonment specified in his sentence had elapsed”.  Taking account of the relevant early release provisions (Prisoners and Criminal Proceedings (Scotland) Act 1993 section 1(1)), as the court was bound to do, meant that the SRO required to terminate after 9 months.   In short, the reduction is wholly explained by the terms of section 209(7)(b).

[16]      We, accordingly, have no difficulty in also rejecting this ground of appeal.