Man convicted of assault and robbery and dangerous driving wins appeal against ‘incompetent’ extended sentence

The Criminal Appeal Court ruled that a sheriff’s purported disposal was “incompetent” because the sentence given for the robbery did not pass the “four-year threshold” required before an extension period could be imposed in terms of section 210A of the Criminal Procedure (Scotland) Act 1995.

Lady Paton and Lord Matthews heard that the appellant Francis Crawford pled guilty to breaking into a flat in Edinburgh and stealing a ring on 28 January 2015 (charge 1).

Charges 4 and 5, which he also admitted, were that on the same day he assaulted a 61-year-old lady who was parking her car in Edinburgh and after struggling with her and punching her twice in the face, he forcibly obtained her car keys and drove off in her car.

A passer-by tried to stop him, but the appellant drove the car in a dangerous manner at the passer-by, who had to jump out of the way and the appellant continued to drive dangerously before colliding with a bollard and a parked car.

The offences were indicted as (charge 4) assault and robbery, and (charge 5) dangerous driving contrary to section 2 of the Road Traffic Act 1988.

The final charge to which the appellant pled guilty took place on a subsequent day when again he was driving dangerously (charge 8).

The sheriff sentenced the appellant to nine months on charge 1, three years on charge 4, nine months on charge 5, and two months on charge 8, with the sentences to run consecutively, meaning the total custodial sentence was four years eight months.

The sheriff also imposed an extension period of three years three months in terms of section 210A of the 1995 Act, resulting in an extended sentence of seven years 11 months - namely four years eight months in custody and an extension period of three years three months.

The legislation provides that “(1) Where a person is convicted on indictment of a sexual or violent offence, the court may, if it - (a) intends in relation to - (i) a sexual offence, to pass a determinate sentence of imprisonment; or (ii) a violent offence, to pass such a sentence for a term of 4 years or more; and (b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender, pass an extended sentence on the offender.”

However, the appellant appealed against sentence, arguing that it was “incompetent” to impose an extended sentence in the circumstances as the only violent offence was charge 4, the robbery.

The sentence imposed in respect of that offence was three years and accordingly it “did not qualify” for the imposition of an extension period in terms of section 210A, it was submitted. Also, there was no report as required in terms of section 210A(4).

Allowing the appeal, the judges agreed with the submission by the solicitor advocate on behalf of the appellant that the only “violent offence” in the indictment which would permit the application of section 210A was the offence of robbery in charge 4.

The judges considered that the appellant’s criminal behaviour following upon the robbery had been “correctly indicted” as the separate statutory offence of dangerous driving contrary to section 2 of the Road Traffic Act 1988, but they did not accept that a conviction in terms of section 2 could be categorised as a “violent offence” in terms of section 210A as driving can be dangerous “without the mens rea necessary for violence”.

“If the Crown had wished to indict the driving as a crime of violence, that could have been achieved by indicting either assault, or attempted murder, or some similar violent offence. Thus it is our opinion that for the purposes of section 210A the only violent offence on the indictment was the offence of robbery libelled in charge 4,” Lady Paton said.

The sheriff having imposed a sentence of three years in respect of the robbery (i.e. less than the four-year threshold specified in section 210A), the option of an extended sentence was “not available to him”.

Even if they appeal court adopted the sheriff’s suggestion in his report to the court that the robbery in charge 4 and the dangerous driving in charge 5 were component parts of one violent incident, the total of the sentences imposed would be three years nine months - which would not pass the four-year threshold in section 210A.

And, even if they were to view charges 4, 5 and 8 together, as suggested by the sheriff, the total of the sentences imposed would be three years 11 months, which would still be below the four-year threshold.

Delivering the opinion of the court, Lady Paton said: “A three-year sentence having been imposed in respect of charge 4, the option of an extended sentence in terms of section 210A was not open to the sheriff, and the purported imposition of an extended sentence was incompetent, a fortioriwithout the appropriate report in terms of section 201A(4). We shall therefore quash the extension period of three years three months.

“We confirm that the custodial sentences remain as: charge 1, nine months; charge 4, three years; charge 5, nine months; charge 8, two months, with the sentences running consecutively. The total custodial period is therefore four years eight months.”