APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Osborne	[2011] HCJAC 122 XJ1001/11 & XJ1002/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by CHRISTOPHER CORNWALL Appellant; against PROCURATOR FISCAL, EDINBURGH Respondent: _____________

Appellant: M.C. MacKenzie; Beaumont & Co

Respondent: Rodger, AD; Crown Agent

24 November 2011

[1] On 16 August 2011, at a trial diet at Edinburgh Sheriff Court, the appellant pled guilty to two charges of breaking into office premises at Gorebridge and stealing almost £3,000 worth of computer equipment on or about 30 March and 1 April 2011, together with charges of stealing a car on 13 April and driving it dangerously in Newtongrange and Gorebridge whilst pursued by the police; the latter two offences whilst on bail from 1 April.

[2] On 3 May 2011, on his first appearance on a second complaint, the appellant also pled guilty to a breach of curfew imposed on 15 April, by being absent from his home in Gorebridge on 30 April.

[3] The Sheriff noted the background circumstances of the appellant and, in particular, the terms of the Social Enquiry Report which indicated that he had suffered from ADHD as a child. The appellant has not worked for several years and, until recently, had regularly been taking a number of controlled drugs. More recently, he had been drinking alcohol excessively. At the time of sentencing, the appellant had just been released from remand on charges of assaulting the police, with whom it is clear he does not get on. He was assessed as at high risk of re-offending.

[4] The Sheriff also noted the appellant's previous convictions, which included housebreaking with intent to steal and breach of the peace. The SER had suggested a Community Payback Order with a supervision requirement which would address his drug and alcohol issues. Community Service was not recommended because of the appellant's inability to function well within groups. Ultimately, the Sheriff sentenced the appellant to 4 and 6 months respectively on the two computer theft charges and 12 months in cumulo on the car theft and dangerous driving charges. These sentences were all made concurrent, although the reason for that course is not immediately clear. There was a further concurrent sentence of 4 months on the second complaint. The Sheriff did not mention the bail aggravations in the sentencing process. In respect of both complaints, the Sheriff did not allow any discount. He reports that he should have made some discount for the breach of curfew offence, but not for the plea at the trial diet.

[5] The submission to the court was, first, that a non-custodial sentence would have been appropriate as an alternative to custody. However, having regard to the appellant's previous offending and to the nature of the charges, notably the breaking into commercial premises and the stealing computer equipment, the court considers that the Sheriff was entitled to select custody as the only appropriate sentence.

[6] It was submitted secondly that the lengths of custody were excessive. It is certainly true that the sentence of 12 months in respect of charges of stealing a car and dangerous driving might, if looked at in isolation, have been regarded as excessive, but the court notes that this cumulo sentence was, somewhat unusually, made concurrent with the two unrelated charges of breaking into commercial premises.

[7] Looked at as a whole, the court does not consider that a starting point of 12 months in respect of these offences was excessive. However, the court does consider that there is substance in the submission that there ought to have been some discount in respect of the pleas of guilty, even though tendered at the trial diet. It will therefore reduce the sentence of 12 months imprisonment to one of 10 months imprisonment, which will have the effect of affording a discount in respect of the first complaint. Affording a discount on the second complaint is essentially academic and the court will make no order in that regard.

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