Man who fired shotgun into Glasgow house and threatened police officer given longer prison sentence after Crown appeal

About this case:

• Citation:
  [2024] HCJAC 36
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

David Docherty, who had been imprisoned on other charges since 11 September 2023, was convicted of three charges of firearms offences along with a fourth of attempting to pervert the course of justice by destroying evidence, and sentenced to a total of 40 months’ imprisonment. The Crown argued that the temporary sentencing judge had underestimated the seriousness of the offence and imposed a headline sentence far below what was necessary and appropriate.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lady Wise and Lord Armstrong. The Lord Advocate, Bain KC, appeared for the Crown and Graham KC for the respondent.

Too much arithmetic, too little logic

On the morning of 28 July 2020, the respondent discharged a shotgun, for which he did not possess a licence, through the living room window of a house on Sandwood Road in Glasgow. Fortunately, the 66-year-old occupant of the house was not present, but she reported the matter to the police on returning home and discovering the shattered window.

The following year, two police officers, PC Marshall and PC Walsh, stopped the respondent in a vehicle he was not insured to drive, at which point he presented a firearm towards PC Marshall before driving away. Later that day the same vehicle was discovered in a burnt-out condition, with evidence that it was the respondent who destroyed it.

Initially, the respondent was indicted on 18 charges, but at the close of the Crown case most of these were dropped. The remaining charges (1, 2, 17, and 18) libelled culpable and reckless conduct, possession of a shotgun without a licence, possession of a firearm with intent to cause another person to believe violence would be used against him, and concealing and destroying evidence, namely the vehicle involved in charge 17.

In sentencing, the respondent’s length record of previous convictions, including convictions for violence, was referred to. The temporary judge also noted that no one had been present in the house when the conduct in charge 1 was carried out and the respondent’s current status as a person serving a four-year custodial sentence. He considered that a sentence of six years’ imprisonment was merited, but that the headline sentence fell to be reduced having regard to the time spent on remand in respect of the present offences.

It was conceded by counsel for the respondent that the sentencing judge’s report contained “too much arithmetic and too little logic”. For the Crown it was submitted that the sentence imposed did not achieve the applicable sentencing purposes, to which the judge made no reference in his report. Two of the charges were extremely serious and involved planning and premeditation, and there was no indication that he did not know that no-one was in the property at the time.

Shocked and distressed

Lady Dorrian, delivering the opinion of the court, said of the sentencing judge’s approach: “The respondent discharged a firearm into a random living room window. The fact that no-one was present was no more than the result of luck. The temporary judge was quite wrong to consider this, as it seems he did, as limiting the seriousness of the offence.”

She continued: “As to charge 17 the temporary judge fixed on the short duration of the incident as opposed to its severity and effect. The officer in question immediately jumped back, and must have been shocked and distressed by the incident. The trial judge does not seem to have reflected properly on the most serious aggravating factor of this offence, namely a threat to a uniformed police officer acting in the execution of his duties.”

Addressing the purposes of sentencing, Lady Dorrian said: “The only one [the judge] specifically refers to is the one which has virtually no application, namely rehabilitation. The respondent is now 35 years of age. He has offended on a more or less continuous basis since he was at most 17. His convictions cover a vast range of offending; apart from the repeated violent offending already referred to he has convictions for drugs offences, various offences of dishonesty, road traffic offences and breach of conditions of bail or other court orders, all on a repetitive basis.”

She added: “He has proven resistant to sentences which were designed to help him, and to rehabilitate, such as probation (tried on more than one occasion and repeatedly breached) and restriction of liberty order, also breached. The prospect of rehabilitation is remote and certainly not something which should have been selected for special attention, compared to truly relevant factors such as protection of the public, punishment and public disapproval.”

Lady Dorrian concluded: “We are mindful that in sentencing for multiple offences the court must stand back and reflect on the overall total sentence, and ask whether the overall sentence is fair and proportionate in all the circumstances as reflecting the overall criminality of the offender. Imposing the sentences consecutively to reflect their differing nature and intent would result in an excessive overall sentence, particularly having regard to the association between charges 17 and 18. Having regard to all these factors we consider that a headline cumulo sentence should be one of 10 years.”

The appeal was therefore allowed, with the court imposing the new sentence from the date of its decision to take into account the time already spent on remand.