APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lady Cosgrove	[2010] HCJAC 134 XJ1094/10, XJ1095/10, XJ1096/10 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by KB Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: J Keenan, solicitor advocate, Capital Defence Lawyers (for Thorntons Law, Perth)

Respondent: Henderson AD; Crown Agent

23 November 2010

[1] On 22 September 2010, at Perth Sheriff Court, the appellant appeared for sentence on three complaints. The first libelled an assault on his cohabitee on 28 November 2009 at their flat in Perth. This was committed by pushing her on the body, when she interrupted a telephone call from his sister in Poland, causing her to fall and strike her head to her injury, the latter being in the form of bruising. The appellant pled guilty when the case first called on 1 December 2009, but sentence was deferred for various reasons until 6 January and then until 3 February, 5 May and eventually 22 September 2010. The second complaint libelled a contravention of section 27(1) of the Criminal Procedure (Scotland) Act 1995; being a breach of a bail condition, imposed at the time of the appellant's first appearance, not to enter the flat or to approach the complainer. He had been in the flat and speaking to the complainer on two occasions on 23 December 2009. He had been arrested on the second of these, after the cohabitee had pressed a panic alarm to summon the police. The appellant pled guilty on 24 December and the procedure followed that of the first complaint. The third complaint was a breach of the peace, whilst on bail on the earlier complaints, again at the flat, this time on 11 June 2010. He had gone to the flat and obtained a knife from the kitchen before threatening to stab himself in front of the complainer and their 10 year old son, namely B. On this occasion, he pled guilty only at an intermediate diet. The Sheriff sentenced the appellant to consecutive periods of 2, 3 and 5 months imprisonment.

[2] In mitigation the Sheriff was advised that the offences had all been committed whilst the appellant, who is now aged 41, had been under the influence of alcohol. The Social Enquiry Report revealed that the appellant had come to Scotland, with his longstanding cohabitee and their son, some 3 years ago. His mother had accompanied them to Scotland and, when the appeal was heard, the appellant was living at her address. Although a baker to trade, the appellant had worked in the construction industry after arriving in Scotland. He had lost his job, which had earned him £276 per week, after he had been remanded in December 2009. Although he did not regard himself as having an alcohol problem, he had drunk about a half litre of vodka on the day of the first offence. This was a regular amount of the spirit, along with a few cans of lager, which the appellant was accustomed to consume at weekends when he was not working.

[3] During the appellant's interview with the social worker, he seemed to make light of the first incident, feeling that he had been entitled to act in the way he did. Equally, he did not seem too concerned about breaching the bail conditions, saying that he would do the same again, since he had been invited back to the flat. The appellant had a previous conviction for assaulting the complainer in August 2009, for which he had been fined £200. He had a conviction for breach of the peace in December 2008. But he did not think that he had a problem managing his anger and blamed his wife for making him angry. He was initially assessed as at high risk of re- offending.

[4] The supplementary SER prepared for the eventual sentencing diet had reported signs of improvement and reduced his risk factor. However, the Sheriff observed that the conditions prohibiting contact with the complainer had been removed on 16 March 2010 to enable him to resume cohabitation. This had followed a letter from the complainer dated 15 February 2010. The offence libelled in the third complaint had occurred only a few months later. The SER provided further insight into the latter event. The appellant had been drinking to excess, to the extent of a litre of vodka per day, following his court appearance on 5 May. Several minor domestic incidents had followed, with the Social Work Department intervening, as they had done in the past, because of concerns for the child's welfare. The appellant had not been able to secure work and had become depressed to the point of potential self harm.

[5] After the incident on 11 June 2010, bail conditions had again prohibited the appellant from having contact with his cohabitee and son. The conditions were removed on 24 August 2010, when cohabitation had resumed, but the child had remained on the Child Protection Register. At the time of sentencing, the appellant had maintained that he had been alcohol free for some three weeks. He had been taking prescribed Antabuse and attending counselling sessions with Perth and Kinross Alcohol Services. The SER reported the social worker responsible for the care of the child as describing the appellant as a "different man" since he had ceased alcohol consumption. Both he and his cohabitee had been providing negative breath tests as part of an ongoing monitoring process.

[6] By the time of the sentencing diet, the appellant had been assessed as suitable to undertake Community Service. However, the Sheriff considered that only a custodial sentence was appropriate, having regard to the repeated breach of court orders. He considered that, as starting points, sentences of 3 months, 4 months and 6 months (1 month for the bail aggravation) were appropriate for each complaint, but reduced them by 1 month each to take account of the early guilty pleas.

[7] The appellant was allowed interim liberation on 27 October 2010, but it was a condition of this that he did not contact his cohabitee or enter the flat. When the appeal called on 23 November 2010, the court had the benefit of a recent report from the social worker for the child. This stated that, following the resumption of cohabitation in August 2010, the family had enjoyed a stable and happy life. The appellant and his cohabitee had refrained from alcohol consumption and were having that situation monitored. The child's mood and school work had improved. The appellant was contributing much towards family life at that time. All of this had terminated, however, with the appellant's incarceration.

[8] Thereafter, the appellant's mental health had deteriorated whilst he was in prison. He had been prescribed anti-depressant and anti-psychotic medication, which had had a positive effect. He was visited in prison by his cohabitee and son, but this came to an end with his liberation on the conditions outlined above. The social worker reported that this had caused "significant distress" to the child "who cannot understand why he is not permitted to see his father". The appellant had, whilst at liberty, resumed his Antabuse therapy and is receiving additional support from the local drug and alcohol team to assist him in his planned abstinence. The conclusion of the report is in the following terms:

"[B] and his mother are desperate to be reunited with [the appellant] and he is keen to return home to live with his family.

I believe that the necessary supports and monitors are now in place to protect [B] and to support the parents to address their difficulties. I would support any move that would allow [the appellant] to return home".

It recommends that the original suggestion of a community service order be re-considered.

[9] The court is entirely supportive of the principle that repeated incidents of domestic abuse require to be dealt with firmly, especially when committed in breach of court orders. It has no doubt, therefore, that the Sheriff was entitled to consider that custodial sentences were appropriate disposals at least for the later offences, even although none involved serious violence to the complainer. However, this appellant had not previously been made the subject of a Community Service Order as a direct alternative to custody. He was deemed suitable as a candidate for such an order by the time of the eventual sentencing diet. The first issue then is whether custody was the only appropriate disposal in the circumstances pertaining in September 2010. By that time the appellant had abided by the bail conditions for the period after the incident in June and had thereafter resumed cohabitation, apparently successfully. The court is persuaded that, in these circumstances, a CSO was an appropriate disposal as a direct alternative to custody.

[10] The court now has information that suggests strongly that it is in the best interests of the child that he resume contact with his father. This is a matter of some importance, which the court is bound to consider when determining the appropriate sentence. In all these circumstances, it will quash the custodial sentences and substitute one of 240 hours community service. The appellant has been well warned by the court in relation to any failure to comply with that order or in the event of any further domestic incidents.