Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 65

HCA/2015/15/XC

Lord Justice Clerk

Lord Malcolm

 

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

BRADLEY HANNON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McIntosh; John Pryde & Co SSC

Respondent: Carmichael AD; the Crown Agent

 

29 April 2015

[1]        On 18 November 2014, at the Sheriff Court in Glasgow, the appellant was found guilty of three charges stemming from his behaviour at Azalea Gardens, Cambuslang, on 23 August 2013.  The charges were: (1) theft of a knife; (2) breach of the peace by swearing and presenting a knife at an individual; and (3) having a knife with him, contrary to the Criminal Law (Consolidation) Act 1995, section 49(1).  All these offences were committed whilst he was on bail.  The appellant also pleaded guilty to three charges, numbers (5)-(7), of breach of his bail curfew in September and November 2013, contrary to the Criminal Procedure (Scotland) Act 1995, section 27(1)(b).

[2]        On 18 December 2014, the sheriff sentenced the appellant to a variety of periods in a Young Offenders Institution expressed, somewhat unusually, in periods of days, as follows: (1) 540 (90 for the bail aggravation); (2) 640; (3) 450; (5) 200 (100 for the bail; discounted from 240); (6) 150 (discounted from 180) and (7) 200 (discounted from 240).  The sentences on charges (1) to (3) were to run concurrently with each other.  The sentences on charges (5) to (7) were also to run concurrently with each other, but consecutive to that on charge (2).  The total period in custody thus produced was 840 days (ie almost 2 years and 3 months).  The sheriff also imposed a supervised release order of 9 months.

[3]        The locus in respect of the first two charges was a detached family home in Cambuslang.  The older members of the family were out at a social event and the house was occupied by two young children and a babysitter.  At about 9.30pm three youths, including the appellant, entered the front garden.  Two of those, again including the appellant, went into the house uninvited.  They appeared to be looking for things to steal.  The appellant went into the kitchen and took a knife from a drawer.  He threatened to kill the babysitter and apparently held the knife to his throat.  No assault, however, was libelled.  The youths left after about 5 minutes, having been foiled by padlocks on the doors of the many rooms in the property.  The curfew charges are relatively self-explanatory. 

[4]        By the time of the sentencing diet, the appellant had been in custody since 24 March 2014, when he had been remanded on housebreaking and theft charges.  On 15 May 2014, he had been sentenced to 6 months in respect of a breach of a Community Payback Order, which had been imposed earlier.  On 31 July 2014, he had been sentenced to 12 months consecutive to that on the housebreaking and theft charges.  His earliest date of release, as of the date of sentencing, was 13 February 2015.

[5]        The appellant was 16 at the time of the offences.  He had been the subject of a supervision requirement from the Children’s Hearing, which had expired shortly before the offences had been committed.  He had had an extremely difficult background; the full nature of which is explained in a detailed letter from his grandfather, with whom he regularly lived.  There were indications, contained in letters from Access to Industry and the New Routes Partnership, that the appellant’s recent incarceration had seen some improvement in his attitude.  In mitigation before this court, that matter was emphasised.  The appellant had some prospect of work as a joiner with his father.  The Criminal Justice Social Work Report had referred to the appellant’s regular offending since the age of 14 and to his poor attitude both generally and to Community Payback Orders.  In relation to the offences themselves, the appellant had little recollection of them, having been under the influence, at various times, of alcohol, cocaine and ketamine. 

[6]        The sheriff delivered an extremely lengthy sentencing statement, explaining in detail the reasons for his sentencing choices.  This made reference to, amongst other things, the significance of the appellant’s youth, his difficult upbringing and the perceived improvement in his behaviour at Polmont YOI.  It also expressly dealt with the question of the cumulative effect of the sentences.

[7]        The grounds of appeal stressed that the offence on charge (2) did not libel any form of assault.  The sentence selected was excessive for what was a breach of the peace.  There was also an inconsistency in the sentences in respect of the curfews; the discrepancy not being explained by the sheriff.  The primary submission, however, was in relation to the aggregate effect of the sentences, which would mean that, in practical terms, the appellant would be 19 by the time he was released.  This was disproportionate and had failed to recognise the progress which he had made in custody.  Reference was made to the opinion of the Lord Justice Clerk (Gill) in Kane v HM Advocate 2003 SCCR 749 (at 752), in relation to the importance of considering the personal circumstances of a young offender and the extent to which he may not be solely responsible for his behavioural problems.

[8]        Notwithstanding the detailed consideration given by the sheriff to all the circumstances of the appellant’s case, which the court has also had careful regard to, there is considerable substance in the general submission that the cumulative effect of the sentences was excessive.  The period selected (over 21 months) for a breach of the peace by a 16 year old youth was also excessive given the limited nature of the libel.  Having regard to the remarks made in Kane (supra), insufficient weight has been placed upon the youth of the appellant, notwithstanding his longstanding and repeated offending.  When these matters are taken properly into account, the appropriate course of action is to halve each of the sentences.  This will result in an aggregate sentence of about 1 year and 2 months.  This period has regard to the fact that part of the sentence will, in practice, run concurrently with other custodial sentences which he is serving.  In view of the concurrent nature of the breach of curfew penalties, the court will not alter them further (ie beyond the halving).  The supervised release order will remain.  The appeal is allowed accordingly.