Andrew Murray v. Her Majesty’s Advocate [2018] HCJAC 27

Note of appeal against sentence:- On 15 September 2017, at the sheriff court, the appellant pled guilty to a contravention of section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010. On 24 October 2017, after obtaining a Criminal Justice Social Work Report, the sentencing sheriff imposed a sentence of 21 months imprisonment, discounted from 24 months on account of the plea of guilty. The appellant appealed against his sentence on the grounds that it was excessive. The circumstances were that the appellant engaged in a course of conduct which caused his then partner fear and alarm over a 6 month period between April and October 2016. In light of the serious nature of the conduct, as referred to in the sentencing sheriff’s report, the sheriff took the view that the conduct was so serious that only a custodial sentence was appropriate. On behalf of the appellant it was submitted that, whilst it was conceded that the appellant’s conduct was unacceptable, it ought to be viewed in the context of a dysfunctional relationship. It was submitted that the appellant’s personal circumstances were such that there was an appropriate alternative to a custodial sentence or, in the event that the court considered that only a custodial sentence was appropriate, the period selected was excessive. It was submitted on behalf of the appellant that:- (1) he was aged 20 at the start of the offending; (2) he had no previous convictions and was of good character; (3) the CJSWR pointed to the appellant’s difficult upbringing which appeared to influence the offending behaviour; (4) since the offending the appellant had made a number of positive changes in his life in that he was seeking employment and had been offered a place at college; and (5) there was a suitable non-custodial sentence available as suggested in the CJSWR. It was further submitted on behalf of the appellant that the sheriff had given insufficient weight to the age of the appellant at the time of the commission of the offence and reference was made to Kane v HMA 2003 SCCR 749 and Smart v HMA [2016] HCJAC 73 where the accused’s age and upbringing in assessing the appropriate sentence were emphasised. Here the court allowed the appeal. The court noted that in light of the appellant not having previously been sentenced to a period of imprisonment/detention he enjoyed the protection of section 204(2) of the Criminal Procedure (Scotland) Act 1995. Whilst the court made clear its disapproval of the appellant’s behaviour which was described as “unpleasant and offensive” the court considered that, in light of the appellant’s age at the time of the offending, his lack of previous convictions and the fact the appellant had, by the time of the appeal hearing, served a period which was equivalent to a sentence in excess of 4 months’ imprisonment, the sentence imposed was excessive. The court quashed the sentence of 21 months imprisonment and imposed a Community Payback Order for 2 years with a supervision requirement and a requirement to perform 200 hours of unpaid work in the community.