Sheriff Criminal Appeal Court issues first judgment - refuses appeal against ‘excessive’ cumulo sentence

The appellant argued that the sentence of six months imposed on each of the two charges was “excessive” and that the sheriff had failed to take proper account of his period on remand, but the appeal sheriffs affirmed the sheriff’s sentences.

Sheriff Principal Mhairi Stephen QC and Sheriff Principal Craig Scott QC heard that the appellant, Robbie Robertson, was sentenced at Stirling Sheriff Court on 15 September 2015 to two periods of imprisonment to be served consecutively.

The first sentence was a period of 119 days for a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 by using threatening and abusive behaviour, acting in an aggressive manner towards CMcK, his ex-partner, at her home in Stirling - an offence committed while he was subject to two bail orders.

The sheriff selected a period of imprisonment of six months and then to reflect the plea at the intermediate diet applied 20% discount to reach 145 days; 45 of these days represented the bail aggravations. The sheriff then deducted the 26 days of the appellant’s remand.

The second sentence was one of 235 days, imposed in respect of two assaults against CMcK at her home and a visitor to her home and while the appellant was subject to three bail orders, which was to run consecutively to the period of the sentence on the section 38 charge.

The sentence selected attributed 36 days on each charge to the bail aggravations. The sheriff applied a 25% discount for the plea at the intermediate diet and then reduced the period of imprisonment by 37 days to reflect the period, which the sheriff had been advised by the defence agent, was the period of remand - although it later became apparent that the period on remand had in fact been 27 days.

The appellant challenged the cumulo sentence of 354 days imprisonment imposed on the two complaints, arguing that the starting point of 12 months was “excessive” in circumstances where the conduct of the appellant had not caused injury to either of the complainers.

However, the appeal sheriffs observed that the sheriff, in determining that a sentence of six months imprisonment on each charge was appropriate, took account of the accused’s record, which disclosed “persistent offending against the same complainer”.

In particular, this was his second conviction for domestic assault on the same complainer within a year, and a fourth conviction for a domestically aggravated crime of disorder.

Delivering the opinion of the court, Sheriff Principal Stephen said: “The sheriff clearly had regard to the need to protect CMcK from the accused’s behaviour. The appellant has numerous convictions for assault including one on indictment. The sheriff was therefore entitled to take the view that there was a need to protect the complainer and was justified in her conclusion that the appellant’s offending was escalating.”

She added: “Having regard to the nature of the offending it is particularly important to consider the appellant’s record of offending against the complainer CMcK especially and his record of offending with particular reference to crimes of violence. In that context it cannot be said that a headline sentence of six months for an assault whilst on bail with complete disregard for the consequences, can be considered excessive.

“The sheriff is aware that no injury was sustained by either complainer. The sentences of six months are to be served consecutively. The appellant’s behaviour demonstrated a reckless indifference to the outcome.”

It was also submitted that the sheriff failed to make a “suitable deduction” for the time spent on remand.

The appellant argued, with reference to the 2006 case if Martin v HM Advocate, that the sheriff ought to have allowed a “greater deduction” in respect of the time spent on remand had she had proper regard to the terms of section 210 of the Criminal Procedure (Scotland) Act 1995.

As the sheriff did not backdate either of the custodial sentences she required to take account of the period on remand by reference to the length of a custodial sentence which would have resulted from the period which he actually spent in custody standing the rules on early release after one half of the sentence is served. In other words, the sheriff ought to have made allowance of double the period on remand.

However, the appeal sheriffs noted that when sentencing the appellant on these complaints the sheriff took “full account” of the periods during which the appellant was remanded.

She reduced the discounted sentences by the number of days she was invited to by the defence agent, which turned out to be neither the period of remand nor double the period of remand, and which was a “generous discount” on both complaints.

Sheriff Principal Stephen said: “We have taken the approach that we must look at the sentence and the sheriff’s sentencing process in the round. Overall, we are satisfied that the sheriff did have regard to the period of remand even though the period was not precisely doubled. We are not, therefore, persuaded that a miscarriage of justice arises and we therefore refuse the appeals and affirm the sheriff’s sentences.”