Serial domestic abuser’s non-custodial sentence was ‘not unduly lenient’

The High Court of Justiciary Appeal Court refused an appeal against sentence by the Crown after observing that the sheriff’s decision to impose a restriction of liberty order and a probation order had come after she had considered sentencing guidelines published by the Scottish Sentencing Council.

The Lord Justice General, Lord Carloway, sitting with Lord Drummond Young and Lord Malcolm, explained that the appeal raised a question of whether repeated abusive conduct in the domestic context over a prolonged period of time ought to be met with a custodial disposal.

‘Trail of human misery’

The court heard that the respondent “CJB” pled guilty at Aberdeen Sheriff Court on 18 February 2019 to three charges involving assaults on his wife and two daughters, which the advocate depute described as having left a “trail of human misery”.

The first charge was that, on various occasions between 1998 and 2015, the former fisherman assaulted his wife by, amongst other things, repeatedly punching and kicking her on the head and body, seizing her by the neck, repeatedly striking her head against a floor and brandishing a knife at her “all to her injury”.

The second charge was of a similar nature whereby, on various occasions between 2000 and 2015, the chicken factory worker seized and dragged his daughter by the hair, repeatedly kicked her on the body, struck her head against a fireplace, seized her by the neck, pinned her against a wall and repeatedly struck her on the head and body again “to her injury”.

The third charge involved a second daughter, and was again of a similar nature, libelling that, on various occasions between 2004 and 2015, he repeatedly punched her on the body, repeatedly struck her on the head and body, held her by the throat and repeatedly struck her head against the ground and brandished a knife at her.

Having heard the circumstances of the offences in detail, as well as the impact on the complainers, the sheriff reported that she had a custodial sentence “very much at the forefront of her mind” when determining the appropriate disposal.

The conduct was described by the sheriff as one of “frequent abusive behaviour” against the respondent’s wife, and sometimes aggravated by being in the presence of the children.

The conduct was also against the two daughters, starting when they were only seven years old and subsisting until their teenage years.

An unhappy marriage and difficulties with alcohol, albeit offered as explanation and context and not as an excuse, were not, in the sheriff’s view, factors that significantly mitigated the offences.

The sheriff noted that the respondent had formed a new long-term stable and supportive relationship with a “pro-social” partner, who was aware of the offences.

The sheriff regarded the offences as “significant and serious” but nevertheless chose not to impose a custodial sentence, and instead imposed a Restriction of Liberty Order, under which the respondent would be confined to his home address between 8pm and 8am for a period of 11 months.

She also made a probation order, involving two years’ supervision and 220 hours of unpaid work in the community.

Sentencing guideline

The court was told that the sheriff had regard to the Scottish Sentencing Council’s first guideline, on the ‘Principles and Purposes of Sentencing’, which was approved by the High Court in October 2018.

The guideline states that “sentences should be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case”.

Balancing the principles and purposes of sentencing, the sheriff reached a view that a custodial sentence was “not the only option” available to her.

It was not required as a measure of public protection, as the respondent was suitable for a community disposal, given his minimum level of risk.

Preventative and determinate measures and rehabilitation could be addressed during his period under supervision as part of the community order.

Punishment would be achieved by the imposition of the RLO and the requirement of carrying out unpaid hours of work in the community via a community disposal, which had been recommended by the criminal justice social work report.

However, the advocate depute submitted that the sentence was “unduly lenient”.

The protracted offending behaviour extended over a substantial period of time and ought to have been dealt with by way of a “substantial custodial disposal”.

It was argued that the sentence failed to recognise the gravity of the offences and failed to satisfy the need for retribution and deterrence.

The sheriff had placed too much weight on the respondent’s personal circumstances and too little on the gravity of the offences, it was submitted.

‘Not unduly lenient’

Refusing the appeal, the judges observed that while the sentence was “lenient”, it was not unduly so.

Delivering the opinion of the court, the Lord Justice General said: “There can be little doubt that the repeated assaults, which the respondent perpetrated on his wife and two daughters over a prolonged period of time, could have attracted a significant custodial disposal. This is illustrated by several of the cases cited by the advocate depute. However, each case depends upon its particular facts and circumstances.”

The Scottish Sentencing Council’s guideline, which was approved by the court on 30 October 2018, provides that sentences must be “fair and proportionate”.

This principle requires that: “all relevant factors of a case must be considered including the seriousness of the offence, the impact on the victim and others affected by the case, and the circumstances of the offender”.

“It is clear from the sheriff’s careful and detailed report that she did take all relevant factors into account including, particularly, the seriousness of the offences, the impact on the complainers and the circumstances of the respondent,” Lord Carloway said.

He added: “The sheriff’s balancing of the relevant factors, which was firmly based on a proper consideration of the sentencing guideline, may be seen as producing a lenient sentence. That sentence is, however, well reasoned. It cannot be regarded as ‘unduly lenient’.”