G.R. v. Her Majesty’s Advocate [2016] HCJAC 94

Note of appeal against sentence:- The appellant was indicted to Elgin Sheriff Court in relation to seven charges relating to alleged domestic abuse perpetrated against the appellant’s partner and son. Following the evidence of his partner, CA, the complainer in charges 1 and 4, and his son, SA, the complainer in charges 2 and 3, the appellant pled guilty to charges 1, 2, 3, 4 and 6 under various deletions. Charge 1 was a charge of assault on various occasions over a 3 ½ year period against CA to her injury; charge 2 was a charge of assault on two occasions over a 5 year period against SA to his injury; charge 3 was a charge of attempting to pervert the course of justice by trying to induce SA not to give evidence against him; charge 4 was a charge of maliciously damaging CA’s car by punching and breaking the windscreen; and charge 6 was a charge of behaving in a threatening or abusive manner, which was likely to cause a reasonable person to suffer fear or alarm, by pushing JB, the appellant’s new partner, uttering derogatory remarks at her and punching a door contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The sentencing sheriff obtained a Criminal Justice Social Work Report and imposed 18 months imprisonment in relation to charge 1; 3 months imprisonment in relation to charge 2; 12 months imprisonment in relation to charge 3; admonished him in relation to charge 4; and 3 months imprisonment in relation to charge 6. The sentences in respect of charges 1, 2 and 6 were to be served concurrently and the sentence in relation to charge 3 was to be served consecutively, resulting in a total custodial period of 30 months. In addition, the sentencing sheriff imposed an extended sentence within the meaning of section 210A of the Criminal Procedure (Scotland) Act 1995 comprising a custodial period of 30 months and an extended period of 2 years to commence from 2 June 2016. The appellant appealed against the sentence imposed on the grounds that the period of imprisonment was excessive, there being an appropriate alternative to a custodial sentence. It was also submitted on behalf of the appellant, albeit it had not formed a basis for a ground of appeal, that the imposition of an extended sentence was incompetent. Here it was submitted on behalf of the appellant that the offences to which the appellant had pled guilty had significantly reduced libels and the sheriff had described the assaults in charge 1 as being “minor” and, given the age of the appellant, that he had never previously served a custodial sentence and that he only had some minor previous convictions a non‑custodial sentence would be appropriate. It was further submitted that in the event the court considered that the only appropriate sentence was imprisonment then a lesser sentence of imprisonment should be imposed. In relation to the imposition of the extended sentence it was submitted that in terms of section 210A(1)(a)(ii) an extended sentence may only be imposed in respect of a violent offence if a sentence for a term of four years or more is imposed. Here the court considered the issue of sentence afresh as the court took the view that all the custodial sentences imposed by the sheriff were incompetent in light of the sheriff imposing an extended sentence which was incompetent having regard to the terms of section 210A. The court considered that the only appropriate sentence was imprisonment. The court observed the seriousness of domestic abuse and in the present case the libel covered a persistent course of physical violence over a period of 13 years which could not be described as “minor”. The court took the view that, if anything, the sentence imposed by the sheriff in relation to charge 1 was lenient rather than excessive. Here the court quashed the sentences imposed for charges 1, 2, 3 and 6 and re-imposed a sentence of 18 months imprisonment in relation to charge 1 which sentence was to be subject to a supervised release order for a period of 9 months. In addition, the court re‑imposed a sentence of 3 months imprisonment in relation to charge 2, 12 months imprisonment in relation to charge 3, and 3 months imprisonment in relation to charge 6 which sentences were to be served consecutively to each other, the court taking the view that each of charges 1, 2, 3 and 6 were distinct offences adding to the seriousness of the offences as a whole.