APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 150
Lord Justice Clerk Lord Menzies Lord Philip	Appeal No: XC221/13 and XJ424/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEALS AGAINST SENTENCE   by   (FIRST) JAMES McGILL Appellant;   against   HER MAJESTY'S ADVOCATE Respondent;   and   (SECOND) STEVEN HARRISON Appellant;   against   PROCURATOR FISCAL PERTH Respondent: _______

Appellant (McGill): LK Kennedy; Jim Friel & Co, Glasgow

Appellant (Harrison): MC Mackenzie; Ward & Co, Perth

Respondent: Edwards, AD; the Crown Agent

 

5 November 2013

McGill's Case

[1] On 10 April 2011, at a trial diet at Glasgow Sheriff Court, the appellant James McGill pled guilty to a charge of breach of the peace, occurring at Strathblane Court on 25 July 2011. The libel was that he formed part of a disorderly crowd, shouted, swore, brandished "weapons" and challenged others to fight. Pleas of not guilty to a charge of an assault on an unknown male and three others of carrying offensive weapons were accepted by the Crown.

[2] The locus was a new build housing scheme in Netherton. The incident appears to have involved a gang fight, with a group of youths going to the scheme by car in order to attack the appellant, who lived there, and his friends. The appellant was seen with a dog chain as a knuckle duster and wielding a baseball bat in the CCTV images of the fight. At the end of the incident, which was particularly frightening to the children who witnessed it, the participants shook hands and went their separate ways.

[3] The appellant, who is now aged 46, has a significant criminal record for theft, housebreaking, drugs offences and assault. He was put on probation at Glasgow Sheriff Court, after being convicted of four charges of assault in 1987. A decade or so later he was sentenced to 3 years imprisonment at the High Court for assault to the danger of life and robbery. He had by then moved North, but was convicted of assault again in Inverness in 2004, when a Community Service Order was selected as appropriate. He was made the subject of probation and a Restriction of Liberty Order in the same year for shoplifting. A further CSO was imposed for a breach of the RLO in 2005. His last conviction stems from 2005 and was also for an assault, for which he was fined.

[4] The sheriff sentenced the appellant to 21 months imprisonment, which had been reduced for the plea at the trial diet from one of 2 years.

[5] The appellant had originally appeared on 12 August 2011 on a petition which libelled the five charges. He was liberated on a curfew condition after full committal a week later. The condition required him to be at home from 7.00pm to 7.00am. He was cited to a first diet on 17 July 2012; trial diets in July, October and January 2013 thereafter being discharged for sundry, mostly unspecified, reasons. The curfew condition was eventually removed on 31 October 2012. The appellant had therefore been subject to the curfew for slightly over one year. It was the appellant's contention at the appeal hearing that, during this period, there had been repeated random checks by the police "virtually every night" to see if he was in breach of the curfew. The apparent excessive nature of this monitoring was not something brought to the sheriff's attention, although he was told that there had been some degree of monitoring. The court declines to take this feature into account in the absence of agreement or supporting material.

 

Harrison's Case
[6] On 26 March 2013, at a trial diet at Perth Sheriff Court, the appellant Steven Harrison, who is aged 22, was found guilty of a charge of assault to severe injury on 25 May 2012 at South Methven Street, Perth. He had, along with some friends, attacked the complainer, who was a 20 year old student, outside a nightclub in the early hours of the morning after an altercation. He punched the complainer on the jaw, causing significant dental damage.

[7] The appellant had four previous convictions for assault, one also being to severe injury. At the time of this offence he had been the subject of a Community Payback Order in respect of culpable and reckless conduct. He had been placed on probation on four previous occasions.

[8] On 8 May 2013, the appellant was sentenced to 7 months imprisonment.

[9] The appellant had originally appeared from custody on 29 May 2012, when he was liberated subject to a 7.00am to 7.00pm curfew. He failed to appear at his trial diet in August 2012 (although at the appeal hearing it was said that he had only been slightly late). He was arrested on a warrant, before appearing on 4 October 2012. He was again liberated on a curfew, but the hours were reduced to between 10.00pm and 7.00am on 3 January 2013. He had therefore originally been on a curfew for less than 3 months and then spent further time on a curfew, partly with reduced hours, after his failure to attend trial.

 

The Appeals

[10] In each case the sheriff has explained that he did not take into account, as a factor in mitigation, the time which each appellant spent on curfew. In Mr McGill's case, the sheriff states that he did not regard the curfew as part of the sentence. Rather, it had been an alternative to remanding the appellant in custody and had been imposed to protect the public. In Mr Harrison's case, the sheriff commented that the appellant's failure to appear had resulted in the extended curfew period and the reduced hours would not have caused him any real inconvenience.

[11] Leave to appeal was given in each case only on the basis that it was arguable that the sheriffs ought to have taken into account the periods during which the appellants had been subject to a curfew. It is worthy of comment at this stage that, despite the point being expressly taken in both Notes of Appeal, neither of the sheriffs, nor the first sift judges, addressed it and supplementary reports from each sheriff required to be called for.

[12] The short point taken in the appeals was therefore whether credit ought to be given for the periods during which each appellant was subject to curfew orders. Reference was made to certain dicta in the sentence appeals of Ashraf v HM Advocate 2010 SCCR 826 and Henderson v HM Advocate, 28 April 2011, unreported, no. XC766/10, which provided some support for the proposition that it is appropriate "in a suitable case" to take into account the existence of a curfew as a restriction on the liberty of a person on bail. A comparison was made with the situation in England, where there is a formal discount offered where persons on bail are subject to electronic monitoring curfews, as a direct alternative to remand, under and in terms of section 240A of the Criminal Justice Act 2003 (inserted by the Criminal Justice and Immigration Act 2008, s 21). It was accepted that no formal reduction was given in respect of night-time curfews which were not electronically monitored (R v Monaghan [2010] 2 Cr App Rep (S) 50; R v Sherif [2009] 2 Cr App Rep (S) 33); and R v Barrett [2010] 1 Cr App Rep (S) 87). The express purpose of the provision was the pragmatic one of freeing up spaces in prisons by encouraging electronic tagging (R v Irving [2010] 2 Cr App Rep (S) 75).

 

Decision

[13] The court observes in limine that the function of the appellate court in sentence appeals from convicted persons is to determine whether a miscarriage of justice has occurred by reason of the sentence imposed (Criminal Procedure (Scotland) Act 1995, s 106(1) and (3)). That involves consideration being given as to whether the sentence is either inappropriate or excessive; in which case the court can quash the sentence and impose that which should have been passed by the court in the first instance (ibid s 118(4)(b)). The court does not, when carrying out that exercise, simply look to see whether a defect appears from the reasoning of the first instance court and, if such a defect is identified, reduce the sentence by a fixed amount or a percentage to reflect any failure to take into account a relevant mitigatory factor (see Murray v HM Advocate 2013 SCCR 88, LJC (Carloway) at para [32]). If it did so, that would presuppose that the sentencing exercise is a matter of arithmetical calculation, as distinct from "an overall judgment from a consideration of numerous factors based on judicial experience (Gemmell v HM Advocate 2012 JC 223, LJC (Gill) at para [59])". Thus, if the court decides that there had been a failure at first instance to take a material consideration into account, it does not follow that the sentence selected is thereby either inappropriate or excessive. A determination of that matter can only be made by the appellate court revisiting the sentencing exercise and determining what would have been appropriate and reasonable, taking into account all material factors.

[14] There is no formal scheme for discounting sentences in respect of any period spent subject to a curfew, such as that which exists when a plea of guilty is tendered. It is in that situation only that the court requires to state that the sentence imposed is different from that which the court would otherwise have selected (1995 Act, s 196; Practice Note (No.1 of 2008) Recording of Sentencing Discount). If it is thought that a similar system ought to be introduced in respect of periods spent under curfew, then that is a matter for Parliament to consider and, if advised to introduce such a scheme, to devise its content. Hopefully, any such scheme will not include the pitfalls which have been identified as a result of the detail of the legislation for England and Wales (see R v Irving [2010] 2 Cr App Rep (S) 75, Hughes LJ at paras 3 and 4 and D A Thomas 2010 CLR 433 at 435). In so saying, the court is not in any way suggesting that it would be desirable to introduce such a system for one particular factor, amongst many, which might be presented as mitigatory.

[15] The court notes the position in England in relation to cases which are not subject to electronic monitoring (as is the case in Scotland). Such cases do not, in the normal situation, attract any reduction in sentence. Thus in R v Sherif [2009] 2 Cr App Rep (S) 33, which involved, in part, 24 hour curfews, Latham LJ (at para 45(c)(ii) under reference to Glover (Peter) [2008] EWCA Crim 1782, Hughes LJ at para 14) advised that it was "incorrect to equate time spent under a house curfew with time in prison" even if in some circumstances a judge "might be persuaded by the facts of a particular case to make some modest adjustment". Whether to do so was a matter for assessment by the sentencing court. The court in Sherif was prepared to make some modifications in relation to the appellants who had been under what was described as "house arrest" (24 hour curfew) but did not consider that it was appropriate to do so in the case of a night-time curfew, which was commonplace yet had not in the past attracted a formal reduction. In R v Monaghan [2010] Cr App Rep (S) 50, Hooper LJ (at para 39) noted (following R v Barrett [2010] 1 Cr App Rep (S) 87, Rix LJ at para 14) that whilst some allowance might be made in respect of a night-time curfew which was not subject to electronic monitoring "no reduction should normally be given" in such circumstances.

[16] In the ordinary case, which proceeds with reasonable expedition to trial, the existence of a normal night-time curfew condition, which has been in effect for a period of some months, should not be regarded as something which requires to be reflected by way of a reduction in sentence. It is important to note that the imposition of conditions of this type, when releasing a person on bail, is normally done for the protection of the public and not as a punishment for the offender. Although that might also be said to some degree in relation to a remand in custody, it is a requirement of statute that the court must "have regard to" periods on remand when sentence is imposed (1995 Act, s 2010, derived from Criminal Justice Act 1967, s 68). There is no formal requirement to reduce the sentence. Whereas the practice of the court is to backdate a custodial term to the date of incarceration, whether to do so remains in the discretion of the sentencing court (Muir v HM Advocate 1985 SCCR 402).

[17] In an appropriate case, the existence of a prolonged restrictive curfew having particular effects on a person may justifiably be regarded by a court of first instance as a mitigatory factor to which it can have regard in selecting the appropriate sentence, but the circumstances would require to be exceptional. If it does so feature, it would remain no different in nature from the myriad of other factors which a court may take into account. It is not a special feature for which the court requires to make a specific allowance, whether in terms of time or percentage, in order to reduce a headline sentence. If anything said in Henderson v HM Advocate (supra) is thought to suggest that there requires to be any discount from a headline sentence, in respect of a period spent on a night-time curfew, even calculated upon a broad axe basis, then that dictum is disapproved.

[18] In these two cases the court does not consider that there is anything of an exceptional nature which required the court to have regard to the periods spent on curfew as a mitigatory factor when selecting the appropriate sentence. In both cases also, even if the court had taken the view that there ought to have been some regard to the time spent upon curfew, in reassessing the question of sentence, the court is unable to reach the conclusion that the sentences imposed at first instance were either inappropriate or excessive.

[19] The appeals in both cases are therefore refused.