Mark Feeney v. Her Majesty’s Advocate [2017] HCJAC 16

Note of appeal against sentence:- On 30 June 2016, at Paisley Sheriff Court, the appellant pled guilty on indictment to a charge of culpably and recklessly setting fire to the contents of a bin and a charge of culpably and recklessly setting fire to rubbish and doors within a common close whereupon the fire took effect and caused damage to the doors. The sentencing sheriff called for a Criminal Justice Social Work Report and, on 23 December 2016, imposed a sentence of 6 months imprisonment for charge 1 and 30 months imprisonment discounted from 36 months on account of the plea for charge 2 said sentence to be served concurrently. The appellant appealed against the sentence imposed in relation to charge two on the grounds it was excessive in that the degree of culpability was similar to that for the conduct in charge 1. It was submitted on behalf of the appellant that whilst the sentence imposed in relation to charge 2 might be in the range of appropriate sentences for willful fire-raising it was excessive for a charge of culpable and reckless conduct which had a lesser degree of blameworthiness as discussed in Byrne v. H.M.A. 2000 J.C. 155. Whilst it was accepted that there was a risk of harm in relation to the circumstances of charge 2 the disparity between the sentences imposed by the sheriff was excessive and unjustified. It was submitted that the appellant was drunk at the time of the commission of the offence within a pattern of binge drinking which was associated to him being the victim of a hammer assault in 2013. In addition, it was submitted on the appellant’s behalf that he was in employment and his limited schedule of previous convictions at summary level were exclusively dealt with by the imposition of fines. Here the court allowed the appeal against sentence in respect of charge 2 and quashed the sentence imposed and substituted a custodial sentence of 18 months, reduced from 21 months on account of the plea of guilty to be served concurrently with the sentence for charge 1, and imposed a supervised release order for 9 months in terms of section 209 of the Criminal Procedure (Scotland) Act 1995. The court observed that the sheriff had failed to recognise that there is a significant distinction in the blameworthiness of a wilful act of fire-raising and a reckless act of fire-raising, albeit the sheriff was correct to differentiate between the sentences imposed between charges 1 and 2 due to the risk to persons associated with the conduct relating to charge 2.