His Majesty’s Advocate v. Charles Fletcher [2025] HCJAC 41

Crown appeal against sentence:- The respondent was convicted after trial on indictment at the sheriff court of three charges relating to domestic abuse:- (1) a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (together with an incompetently libelled aggravation under section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 which was not in force at the time of the offence); (2) a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (together with an incompetently libelled aggravation under section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 which was not in force at the time of the offence); and (3) a contravention of section 1 of the Domestic Abuse (Scotland) Act 2018. On 13 March 2025, following the obtaining of a Criminal Justice Social Work Report, the sheriff imposed a cumulo sentence of a community payback order as a direct alternative to a prison sentence comprising of a three-year supervision order and a requirement to perform 300 hours (the maximum) of unpaid work and the respondent was also made the subject of a non-harassment order in favour of the complainer for 10 years. Here the Crown appealed against the sentence imposed it being contended that it was unduly lenient and that a more severe sentence ought to have been imposed. It was submitted on behalf of the Crown that the sheriff had failed to recognise how high the respondent’s culpability was and how severe the harm he caused to the complainer as a consequence of the various forms of abuse he had subjected her to which included exploiting the complainer’s fear of fire her financial loss, the disruption caused by hacking her account, his tracing the complainer to a refuge, and his minimisation and victim blaming all bore on his culpability. In addition, there had been physical and psychological consequences, various treatment needs, financial loss and general disruption to the complainer’s life which were indicative of severe harm and all were a result of the campaign of domestic abuse the complainer had been subjected to which comprised of controlling, threatening and manipulative behaviour which included physical attacks, destruction of property, threats concerning fire, and hacking of the complainer’s account. It was submitted that a community payback order was unduly lenient and failed to meet the proper sentencing objectives, namely, protection of the public, punishment, rehabilitation and expression of disapproval of such offending. On behalf of the respondent it was submitted that the conduct in the unsuccessful Crown appeal against the imposition of a non-custodial sentence in HMA v CJB [2019] HCJAC 45 was more serious than in the present case and also that case involved two children in addition to the complainer. It was further submitted that the respondent was in employment which he would lose if he was imprisoned, he had a stable new relationship in which there was no further offending and the respondent had already completed 50 hours of unpaid work and had received positive reports from his supervising officer. Here the court considered that the sheriff had erred in not imposing a NHO for indefinite duration and to that extent considered that the sentence was unduly lenient and revisited the whole sentence again. In doing so the court considered the absence of any previous sentence of imprisonment, the application of section 204(2) of the 1995 Act and the significant progress the respondent had made since the end of the offending in March 2023. The court noted that the sheriff had stopped the respondent’s agent making submissions regarding the respondent making a compensation order to the complainer. The court here considered that a requirement for compensation was an additional requirement that ought to have been imposed. The court quashed the sentence imposed and, having regard to the period of supervision completed already and the unpaid work carried out to date, the court imposed a community payback order with a supervision requirement for a period of 2 years and 7 months and an unpaid work requirement of 250 hours, as a direct alternative to imprisonment, to be completed within 1 year. In addition, a compensation requirement of £3,600 in favour of the complainer, to be paid in instalments of £200 per month was also imposed.