Domestic abuser fails in appeal against four-year custodial sentence but has extension period quashed 

Josh McLean was sentenced to an extended sentence of six years, comprising a custodial element of four years and an extension period of two years on licence, having been convicted after trial in the sheriff court of six charges involving offences against his former partner.

He claimed that the extended sentence was “incompetent” and that the total custodial period was “excessive”, but the Appeal Court of the High Court of Justiciary upheld the four-year custodial term, albeit the judges quashed the extension period.

‘Vicious display of physical violence and intimidation’ 

Lord Drummond Young and Lord Pentland heard that charges 1 and 5 involved the appellant behaving in a “threatening and abusive manner” likely to cause a reasonable person to suffer “fear or alarm” in contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, aggravated in each case under section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. 

Charges 2 and 3 were offences of common law assault - each subject to the same aggravations that the person intended to cause the partner or ex-partner to suffer “physical or psychological harm”.

Charges 4 and 6 arose from the appellant contacting or approaching the complainer in breach of bail conditions, in contravention of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995, and were also aggravated by involving abuse of his ex-partner.

The court was told that charges 1 and 2 arose from an incident on 31 August 2018 when the appellant attacked his former partner in a public place, while charges 3 and 4 arose from an incident on 16 September 2018 when he attacked her at the appellant’s parents’ home in what the sheriff described as a “prolonged and vicious display of physical violence and intimidation with a knife”. 

Charges 5 and 6 arose from an incident on 18 September 2018 when the appellant came to the complainer’s home in the early hours of the morning and in the course of that incident he screamed and shouted at her and kicked the door.

Having obtained a criminal justice social work report, the sheriff sentenced the appellant to an extended sentence of six years’ imprisonment, comprising a custodial element of four years and an extension period of two years. 

‘Excessive sentence’

Section 210A(1) of the Criminal Procedure (Scotland) Act 1995 allows the court to impose an extended sentence under certain circumstances. 

In relation to a violent offence, which is defined as meaning any offence “inferring personal violence”, the court may impose an extended sentence if it intends to impose a determinate sentence of four years or more and considers that any period on licence “would not be adequate to protect the public from serious harm”.

The custodial element was calculated by aggregating the following periods: a cumulo period of eight months for charges 1 and 2, a cumulo period of 36 months in respect of charges 3 and 4, and a cumulo period of four months for charges 5 and 6.

But the appellant appealed against the sentence imposed, arguing firstly that the extended sentence was incompetent and secondly that the total custodial period was excessive.

On behalf of the appellant it was submitted that charges 5 and 6 were not offences inferring personal violence for the purposes of section 210A of the 1995 Act, as they “amounted to no more than threatening future violence”. 

That being so, it was argued that the sheriff had “erred” in aggregating those offences with the others in order to reach the four-year threshold required for the imposition of an extended sentence in relation to a violent offence.

‘Conduct clearly inferred personal violence’ 

However, the appeal judges were “not persuaded” by that submission.

Delivering the opinion of the court, Lord Pentland said: “In our opinion, the conduct on the appellant’s part, as described by the sheriff, clearly inferred personal violence against the complainer. She was the target of the appellant’s behaviour in the course of a violent and aggressive episode which extended to his attempting to force his way into her home in the early hours of the morning.”

But the judges disagreed with the sheriff’s approach in taking charges 4 and 6 into account in the aggregating exercise.

Lord Pentland explained: “In the sheriff’s view, the breaching of the bail order on each occasion was conduct that inferred personal violence because as he put it ‘it was patently done with a view to confronting the complainer with aggressive, threatening or violent behaviour with a view to intimidating her’.

“With all respect to the sheriff, we consider that in regard to his reasoning on this branch of the case he fell into error. It is no doubt correct that these offences were the prelude to the violence that the appellant committed against his former partner on 16 and 18 September 2018, but we are not persuaded that it can properly be said that the infringements of the bail conditions themselves inferred personal violence.

“The conditions of bail to which he was subject required the appellant not to approach or contact the complainer without reasonable excuse or to attempt to do so. It was his conduct in approaching and contacting her that constituted the offence in each case under section 27(1)(b) of the 1995 Act, not what he did once he had approached and contacted her.

“It follows that the sheriff’s approach in including charges 4 and 6 in the group of offences said to infer personal violence was misconceived. In these circumstances, we consider that the extended sentence was incompetent. We shall therefore quash the sentence imposed by the sheriff.”

However, the court did not agree with the appellant’s argument that a total period of four years in custody was excessive.

Lord Pentland concluded: “We find ourselves in complete agreement with the sheriff that these offences were serious. We agree also that they amounted to a continuation of a pattern of domestically aggravated offending as disclosed in the appellant’s previous convictions. 

“In our view the appellant engaged in a pattern of repeated and serious violence towards his former partner on three separate occasions. In the whole circumstances we shall substitute for the extended sentence a cumulo sentence of four years’ imprisonment.”