Jason Thomas O’Neill v. Her Majesty’s Advocate [2016] HCJAC 56

Note of appeal against sentence:- The appellant pled guilty on indictment, at Dundee Sheriff Court, to a charge of assaulting his partner to injury including averments that he placed her in a headlock, covered her nose and mouth with his hand, repeatedly strangled her and kicked her on the head whilst he was on bail. The appellant was sentenced to 24 months imprisonment discounted from 30 months on account of the plea. The appellant was also made subject to a Supervised Release Order for 12 months. The appellant appealed against his sentence and two questions were considered by the court:- (1) whether the sheriff was entitled to impose the SRO; and (2) if so, should he have discounted the length of it? The sheriff in his report to the court stated that he viewed the appellant as having a propensity for violence, in particular, towards the complainer, the current offence being his third conviction for assault against her in a short period of time. In addition, the sheriff stated that the contents of the CJSWR obtained indicated that the appellant had issues with anger management and the SRO would provide an action plan to assist him in overcoming his aggression. The author of the CJSWR, in her professional opinion, considered that the appellant posed a significant risk of physical and psychological harm to the complainer and she recommended the 12 month action plan. Here it was submitted on behalf of the appellant that the sheriff was not entitled to conclude that the imposition of an SRO was necessary to protect the public from serious harm on the appellant’s release in light of the author of the CJSWR stating that the appellant did not appear to be a significant risk of harm to the general public at this time. Counsel for the appellant submitted that the sentencing sheriff erred in failing to address the principal question, namely, whether the order was necessary for the protection of the public. The court refused this ground of appeal. The court stated that the sheriff was entitled to hold, having regard to the circumstances of the appellant’s conduct and his history of offending, that the SRO was necessary for the protection of the public and it could not be said that he failed to consider the test of necessity having regard to the terms of his report. In relation to the second issue in the appeal, it was submitted on behalf of the appellant that SRO’s should be treated in a similar way to Community Payback Orders and be liable for a discount to be applied. The court refused the argument advanced on behalf of the appellant and refused this ground of appeal. The court observed that SROs are imposed for the purpose of protecting the public and the application of section 196 of the Criminal Procedure (Scotland) Act 1995 does not apply.