Her Majesty’s Advocate v. CJB [2019] HCJAC 45

Description

Crown appeal against sentence:- On 18 February 2019, at a trial at Aberdeen Sheriff Court, the respondent pled guilty on indictment to three charges relating to assaults on his wife and two daughters:- (1) on various occasions between 1998 and 2015, he assaulted his wife by repeatedly punching and kicking her on the head and body, seizing her by the neck, repeatedly striking her head against a floor and brandishing a knife at her all to her injury; (2) on various occasions between 2000 and 2015, he seized and dragged his daughter by the hair, repeatedly kicked her on the body, struck her head against a fireplace, seized her by the neck, pinned her against a wall and repeatedly struck her on the head and body all to her injury; and (3) on various occasions between 2004 and 2015 he repeatedly punched his second daughter on the body, repeatedly struck her on the head and body, held her by the throat and repeatedly struck her head against the ground and brandished a knife at her. The sentencing sheriff imposed a Restriction of Liberty Order confining him to his home address between 8.00pm and 8.00am for 11 months along with a probation order involving 2 years supervision and 220 hours of unpaid work in the community. The Crown appealed against the sentence imposed on the grounds that it was unduly lenient and that it ought to have attracted a substantial custodial sentence. It was submitted on behalf of the Crown that during the preparation of the CJSWR the respondent did not accept much of the conduct to which he had pled guilty and neither accepted responsibility nor expressed genuine remorse for it. It was further submitted that an RLO had not been recommended in the CJSWR and that the sentence imposed failed to recognise the gravity of the offences and their impact upon the complainers and insufficient weight had been given to the need for retribution and deterrence with too much weight placed on the respondent’s personal circumstances. On behalf of the respondent it was submitted that the sheriff was correct to hold that there was an appropriate alternative sentence to custody and had taken all of the relevant circumstances into account in selecting the sentence she had. It was further submitted that to date the respondent had completed 113 hours of unpaid work and had suffered considerable financial hardship because due to the RLO he could not work offshore. Here the court refused the appeal. The court considered that the sheriff had carefully balanced all of the relevant factors and had given proper consideration to the sentencing guideline and the sentence could not be described as unduly lenient. Issues of protection of the public, punishment, rehabilitation and the court’s expression of disapproval were all met in the sentence imposed and in terms of section 204(2) of the Criminal Procedure (Scotland) Act 1995 there was an appropriate alternative sentence to imprisonment available in the present case.