His Majesty’s Advocate v. John Gallagher [2025] HCJAC 19

Crown appeal against sentence:- On 8 November 2024, at Aberdeen Sheriff Court, the appellant pled guilty under the accelerated procedure to three charges:- (1) a contravention of section 57 of the Civic Government (Scotland) Act 1982 (charge 2); (2) a charge of assault and robbery with the use of a knife (charge 3); and (3) having a knife in a public place contrary to section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 whilst on bail (charge 4). A plea of ‘not guilty’ to charge 1 was accepted. The procedural background was that the respondent appeared on petition at Aberdeen Sheriff Court on 2 April 2024 in connection to one charge of housebreaking with intent to steal and one of being found within a building intending to commit theft, which charges were ultimately charges 1 and 2 on the section 76 indictment) and was committed for further examination and released on bail on standard conditions. The respondent appeared at Aberdeen Sheriff Court on 3 July 2024 and was remanded in custody on a second petition containing a charge of assault and robbery and a contravention of section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 both with bail aggravation, which charges were ultimately charges 3 and 4 on the section 76 indictment. On 4 September 2024 the respondent offered to plead guilty to charge 3 under the accelerated procedure which was refused and then on 20 September 2024 he offered to plead to charges 2, 3 and 4. Following the obtaining of a Criminal justice Social Work Report the respondent was sentenced to 2 months imprisonment on charge 2 backdated to 3 July 2024 and a consecutive sentence of 3 years and 4 months in cumulo including 1 month for the bail aggravation on charges 3 and 4 discounted from 5 years to reflect the plea of guilty. The Crown appealed against the sentence imposed in relation to charges 3 and 4 it being contended that it was unduly lenient. The Crown did not challenge the sentence imposed in respect of charge 2. On behalf of the Crown it was submitted that the sentence imposed failed to reflect the gravity of the crimes, in particular, charge 3, gave insufficient weight to significant aggravating factors:- (1) charge 3 was a premeditated robbery in commercial premises involving a knife and scissors when the respondent was masked which lasted for 3 minutes; (2) despite the lack of physical injury to the complainer the impact on the shopkeeper was significant and had caused her to sell the shop; (3) the respondent had a significant criminal record including convictions at the Crown Court in Liverpool and the High Court in Scotland; (4) the respondent was significantly under the influence of crack cocaine at the time of the commission of the offences; and (5) the respondent presents a material risk to the public and the judge should have imposed an extended sentence. On behalf of the respondent it was submitted that the sentence imposed was not unduly lenient and, having regard to what was said in HMA v Bell 1995 SCCR 244, fell within the range of sentences which a judge at first instance, applying their mind to all the relevant factors, could reasonably have considered to be appropriate. It was submitted that the Crown had failed to identify any reported case to demonstrate the sentence was unduly lenient and the court should not increase the custodial term to permit the court to impose an extended sentence. Here the court considered that the sentences imposed in relation to charges 3 and 4 were unduly lenient and allowed the appeal. The sentencing judge gave too much weight to the fact that the complainer was not physically injured given that it was not through any restraint on the respondent’s part but of the shopkeeper’s resistance. The court considered that the sentenced judge had failed to recognise the gravity of the charges. The court made reference to the Scottish Sentencing Council’s “Sentencing Process” Guideline, Annex B lists examples of possible aggravating factors some of which were present:- (a) the offence was committed whilst the respondent was under the influence of alcohol or drugs which were consumed voluntarily; (b) the offence was committed whilst the respondent was on licence or subject to another order of the court; (c) any relevant previous conviction(s) which the respondent has, particularly where they disclose a pattern of repeat and/or similar offending; and (d) the deliberate targeting of a victim who is vulnerable or perceived to be vulnerable. The court noted that whilst the CCTV of the incident of itself was not an aggravating factor, the footage did disclose various aggravating factors including the persistence of the respondent, the confined space in which the robbery occurred and the aggressive way the respondent was behaving towards the complainer and struggling with her whilst armed whilst he was under the influence of drugs. The court also had regard to the respondent’s significant record and the necessity of protecting the public from serious harm by the imposition of post-custody supervision. The court quashed the sentence previously imposed and substituted an extended sentence of 8 years comprising of a custodial element of 5 years and an extension period of 3 years which sentenced was discounted from an extended sentence of 10 years and 6 months comprising of a custodial element of 7 years 6 months, 6 months being attributable to the bail aggravation, with an extension period of 3 years. The sentence was ordered to run consecutively to the sentence of 2 months imprisonment imposed on charge 2 which had been backdated to 3 July 2024.