Josh McLean v. Her Majesty’s Advocate [2019] HCJAC 64

Note of appeal against sentence:- The appellant was convicted after trial at the sheriff court of six charges relating to his former partner:- (1) a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 aggravated by section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016; (2) assault aggravated by section 1 of the 2016 Act; (3) assault aggravated by section 1 of the 2016 Act; (4) a contravention of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 aggravated by section 1 of the 2016 Act by the appellant approaching or contacting his former partner in breach of bail conditions; (5) a further contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 aggravated by section 1 of the 2016 Act; and (6) a further contravention of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 aggravated by section 1 of the 2016 Act by the appellant approaching or contacting his former partner in breach of bail conditions. After obtaining a Criminal Justice Social Work Report, the sheriff sentenced the appellant to an extended sentence of 6 years comprising of a custodial element of 4 years and an extension period of 2 years. The custodial element comprised of 8 months cumulo in relation to charges 1 and 2, 36 months imprisonment cumulo in relation to charges 3 and 4, and 4 months imprisonment cumulo in relation to charges 5 and 6, which sentences were to run consecutively to each other. The appellant appealed against the sentence imposed it being contended that:- (1) the extended sentence was incompetent in terms of section 210A(10) of the Criminal Procedure (Scotland) Act 1995; and (2) the total custodial period imposed was excessive. The circumstances were that charges 1 and 2 related to an incident on 31 August 2018 when the appellant attacked his former partner in a public place and charges 3 and 4 related to an incident on 16 September 2018 when he attacked her at his parents’ home with a knife. Charges 5 and 6 related to the appellant attending the complainer’s home on 18 September 2018 and causing a disturbance by shouting, swearing and kicking her door. It was submitted on behalf of the appellant that charges 5 and 6 were not offences inferring personal violence in terms of section 210A(10) of the 1995 Act and the sheriff erred in aggregating the sentence for those offences with the others in order to reach the 4 year threshold required for the imposition of an extended sentence in relation to a violent offence in terms of section 210A(1) of the 1995 Act. It was submitted that the conduct described by the complainer in relation to charge 5 was no more than threatening future violence and could not be characterised as inferring personal violence as required under section 210A. Here the court considered that the appellant’s conduct in relation to charge 5 did infer personal violence against the complainer. The court considered, however, that as far as the circumstances of charges 4 and 6 were concerned, it could not be said that the breach of the bail conditions inferred personal violence. The court took the view that the sheriff had erred in holding that breaching the bail conditions in the way he had inferred personal violence. The court here described the breaches of bail as “the prelude to the violence” and it was his approaching/contacting her that constituted the offence and, as such, the sentences in relation to charges 4 and 6 ought not to have been included in the aggregate total and the extended sentence was incompetent. It was submitted on behalf of the appellant that a sentence of 4 years imprisonment was excessive. The court did not agree with that submission describing the conduct as “a pattern of repeated and serious violence” perpetrated against his former partner. In the circumstances the extended sentence was quashed and a cumulo sentence of 4 years imprisonment substituted.