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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Johnston
Lord Carloway
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[2006HCJAC3]
Appeal No: XC169/05
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPEAL AGAINST SENTENCE
by
WILLIAM BENNETT
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant: MacLeod, Q.C.; Jim Friel & Co.
Respondent: Turnbull, Q.C.,
A.D.; Crown Agent
15 December 2005
The background
[1] The
appellant, along with five other persons, Muir MacLeod, Lee Warren Burgun,
Charles Blades, James McInally and Lewis Rodden, were indicted together in an
indictment which contained three charges.
Charge (1) affected all six accused persons; charge (2), brought under section 47(1) of
the Criminal Law (Consolidation) (Scotland) Act 1995 and alleging having in a
public place an offensive weapon, namely a sword, was brought against Lewis
Rodden alone. Charge (3), also brought
under the same section of the same act, alleging having in a public place
offensive weapons, namely a baseball bat, two hammers, a socket extension bar
and a wrench, was brought against Muir MacLeod alone.
[2] Charge
(1) in the indictment took the form of an allegation that, between 1 November
2002 and 30 November 2003, at a number of places the accused persons had
conspired with each other and with others to extort money and compel persons to
enter into contracts with West Coast Group and WCG (Scotland) Limited for the
provision of security and protection services at construction sites, building
sites and business premises in Ayrshire and to take over existing contracts for
the provision of security and protection services at construction sites,
building sites and other premises in Ayrshire from other persons, by criminal
means, namely threats, menaces, assaults, malicious damage to property, and
wilful fireraising and in furtherance of said conspiracy had done a wide range
of acts specified. It is fair to say
that the catalogue of acts alleged to have been committed in pursuance of the
conspiracy was of a very serious nature.
[3] On
27 January 2005 the
appellant appeared at the High Court in Kilmarnock, along
with the five other accused, when he pled guilty to certain parts of charge
(1). Those parts were:
"(1)(o)(ii) On 15 September 2003 attend at
the construction site of Alexander
Morton
Homes at South Crescent Road, Ardrossan, conduct yourselves in a disorderly
manner, shout, swear, utter threats to Gordon Wylie, care of Strathclyde
Police, Helen Street, Govan, an employee of Guardwise Security and place the
lieges and said Gordon Wylie in a state of fear and alarm;
(iii) On 15 September 2003 at a car park situated at Arran
Place,
Ardrossan,
assault Gordon Wylie, care of Strathclyde Police, Helen
Street, Govan, slap him on the head and
kick him on the body to his injury;".
[4] The
appellant's pleas of not guilty to the remaining parts of charge (1) were
accepted by the Advocate depute. In
moving for sentence, the Advocate depute tendered to the sentencing judge a schedule
of previous convictions in relation to the appellant, which disclosed that he
had five previous convictions. One of
these was in the High Court at Aberdeen on 29 June 1979 when he was convicted of
assault to severe injury and permanent disfigurement and sentenced to detention
for a period of 6 years. Another in Glasgow
Sheriff Court, under solemn procedure, dated 6 December 1993 was a
conviction under section 21(1) and (4) of the Firearms Act 1968, in respect of
which he received a sentence of imprisonment for 1 year. The sentencing judge was informed that the
appellant had appeared on petition in connection with the present matter on 16 September 2003 and had
been admitted to bail. He had appeared
on a second petition on 15
December 2003 and had again been admitted to bail. He had been indicted for trial on 30 August 2004, but the
trial had been adjourned to Kilmarnock High Court on 18 October 2004. On 15 October 2004, the trial had been postponed to 22 November 2004 at
Kilmarnock High Court. On 24 November 2004, the trial
was further adjourned to the sitting at Kilmarnock commencing
10 January 2005.
[5] It
was explained to the sentencing judge by the Advocate depute that the
background to the offences was intense rivalry between companies seeking to
provide security services to the building and construction industry and to
other business in the west of Scotland.
The appellant and each of his co-accused had been employed by or
associated with a company called West Coast Group, a security company based in
St. Cuthbert's Business Centre, Maybole.
It was a division of West Coast Group (Scotland) Limited,
which had its headquarters in Kirkintilloch.
[6] Charge
(1)(o)(ii) and (iii) had occurred on 15 September 2003. Alexander Morton Homes (Scotland) Limited
was a small company run by James and Alexander Benson, who were brothers. In September 2003, the company had been
involved in two developments in Ardrossan.
On one site the company had been constructing detached dwellinghouses,
whereas at another site it had been renovating the former Ingledean Hotel in
Ardrossan. Security for both sites had
been provided by Guardwise Security and the employee of Guardwise Security who
was responsible for supervising the security arrangements at both sites, was
Gordon Wylie. Since February 2002, the
Benson brothers had been obtaining security services from different companies,
but security had always been under the management of Mr. Wylie. They had always used the company for which he
had been working, because they had confidence in him. Early in August 2003 each of the Benson
brothers had received "cold calls" from representatives of West Coast Group,
asking about the security arrangements for Alexander Morton Homes (Scotland)
Limited and enquiring if any work was available. The Benson brothers had replied to the effect
that they had satisfactory arrangements in place for security. Representatives of West Coast Group had
called at the site on three separate occasions, namely 13 August,
8 September and 11 September
2003, and on each occasion a sales pitch had been put to the
Benson brothers. On each occasion, the
Benson brothers had fobbed them off by saying that the existing arrangements
were "all right". However, they had
indicated that there might be something in the future which West Coast Group
could do and they had promised to bring up the West Coast Group offer at a
forthcoming board meeting, although, in fact, this was never done. James Benson had become concerned about the
possibility of potential difficulties arising between different security
companies and although, by that time, there had only been sales pitches, he
contacted the police. An arrangement was
made that the police would fit an alarm system at the site operated by Alexander Morton Homes (Scotland) Limited
at South Crescent Road, Ardrossan. This
site was the site of the former Ingledean Hotel. The alarm system would have enabled the
police to be summoned in the event of any difficulties.
[7] On
15 September 2003, CID
officers came on-site to conduct a test of the system just mentioned with the
assistance of James Benson. The police
officers got into an unmarked police vehicle and drove away from the site for
the purposes of conducting the test. At
that stage, two Mercedes vehicles arrived on the construction site. The first was a dark coloured Mercedes
saloon, driven by the co-accused Muir MacLeod and occupied by Lee Burgun and
another man. The second vehicle was a
Mercedes 4-wheel drive, driven by the co-accused Lewis Rodden, in which the
appellant and James McInally were passengers.
At almost the same time as their arrival, Gordon Wylie walked onto the
site with Alexander Benson. As they did
so, all six occupants of the vehicles alighted.
Voices were raised and abusive shouts were directed at Gordon Wylie by
the group of men. Amidst the shouting
and swearing, Mr. Wylie and Mr. Benson realised that an accusation was
being made that Mr. Wylie, or someone from his company, had damaged a
vehicle on a site guarded by West Coast Group.
This had been denied strenuously by Mr. Wylie at the time and was still
denied by him. Mr. Benson was concerned
at the scene and had said that he wanted everyone off the site. Mr. Wylie indicated that he would leave the
site and discuss matters with the men from West Coast Group. He had been embarrassed at the disturbance in
front of his employers. He had driven
off in his van, but one of the six men had got into the van with him. The other five had followed the van in the
two vehicles. Mr. Wylie had been
becoming concerned for his safety at this time and drove to a car park in Arran
Place, Ardrossan. This was an open space close to the sea
front. The two police officers in the
unmarked police vehicle had observed the convoy driving away from the site. They had been suspicious and had decided to
follow the vehicles. They had summoned
assistance from another unmarked police vehicle in the area and had been joined
by it. They had followed the convoy to
the car park at Arran Place. At the car park, the two Mercedes vehicles
parked close to the van and everybody, including Mr. Wylie, got out of the
vehicles. When he had got out of his
van, he had been standing with his back to one of the Mercedes vehicles. He had been surrounded by all six men who had
been shouting at him. He had become
apprehensive that violence would follow.
While he had been standing there, James McInally had stepped in front of
him and slapped him on the mouth and had thereafter kicked him on the left
shin. McInally had been wearing
workman's boots which had steel toe caps.
Mr. Wylie had taken a conscious decision not to retaliate in case
something worse happened. At that stage,
the two police vehicles had driven up and stopped at the Mercedes vehicles and
Mr. Wylie's van. The police officers had
witnessed the assault. It was clear that
Mr. Wylie was bleeding from an injury to his left shin. The officers had detained all of the six men
and had attempted to provide first aid for Mr. Wylie.
[8] Mr.
Wylie had been taken to the accident and emergency department at Cross House Hospital, where he
had required six stitches to his left shin.
All of the men from the Mercedes vehicles, including the appellant, had
been conveyed to Saltcoates Police Station.
The Mercedes vehicles had also been taken there and searched by police
officers. On the rear seat of the 4-x-4
vehicle driven by Lewis Rodden, the officers had seen a sword lying in plain
view. They had taken possession of
it. The sword was an ornamental sword of
a kind described as a samurai sword. In
the boot of the Mercedes saloon driven by Muir MacLeod, police had recovered a
baseball bat. At a subsequent interview
with police officers, the appellant had stated that he was the Area Manager for
West Coast Group.
[9] On
27 January 2005, the
sentencing judge deferred sentence until 18 February 2005, for the purpose of obtaining a
social enquiry report. The appellant was
remanded in custody. On this latter
date, the Advocate depute addressed the sentencing judge further, because
counsel for the co-accused, Muir MacLeod, had taken issue with some of his
narrative and, otherwise, it might have been necessary to have had a proof in
mitigation. Further enquiries had been
made since the previous hearing and the Advocate depute had provided a more
detailed account of what had occurred on 15 September 2003 in relation to charge (1)(o)(ii) and (iii).
The Advocate depute stated that, although the last visit to the site had
been on 11 September 2003, there had been a further contact by telephone
some days before 15 September 2003, asking the Benson brothers for
business. The Benson brothers had
expected someone from West Coast Group to call again at the site on
15 September, but precise details were not clear. Nevertheless, West Coast Group had not been
hired by Alexander Morton Homes (Scotland)
Limited. Accordingly, on 14 September,
on of the Benson brothers had contacted Mr. Wylie and asked if he could be on
the site on 15
September 2003. The purpose
of this was to enable the Benson brothers to discuss the general arrangements
with Mr. Wylie, but also to show West Coast Group that they already had
security. On 15 September 2003 six individuals from West
Coast Group had appeared in the two vehicles and had immediately begun shouting
and making allegations about Mr. Wylie.
James Benson had accepted that he wanted everybody off the site and said
words to the effect of "Would you go off and sort this out between you". The reason for his doing so
was that, having heard the accusations being made against Mr Wylie, he wanted
everybody to leave his site and have their row somewhere else. The Benson brothers had confirmed that at no
time were West Coast Group promised the security contract for Ingledean Hotel
and at no time were they hired to guard that site. Equally, as new sites became available, the
Benson brothers looked at the security requirements and, although Mr. Wylie had
always been responsible for such requirements in the past, it would not
automatically have followed that he would have been responsible for all future
sites. Subsequently, security for their
sites, including Ingledean, was transferred to another company unconnected with
Mr. Wylie or the West Coast Group. One
reason for that was the trouble which had occurred on 15 September 2003.
[10] The sentencing judge explains in his report that, in mitigation
he had been referred to the social enquiry report and reminded that the
appellant was a 45 year old man, married with three children. Although he had the criminal record already
described, it had been contended that he appeared to have reformed since the
time of his convictions. He had worked
in various employments and, in January 2002, had been employed as an Area
Manager in the Glasgow area for
West Coast Group (Scotland)
Limited. His excursion out of Glasgow in
September 2003 had been unusual. He had
been going to Ayrshire to assess damage caused at a site. He had been told to do that by a Mr. McCabe,
who had formed and was a Director of the company. He had been under the impression that he and
the co-accused Rodden were to assess a new site. They had travelled in Rodden's car. When they had arrived at the site, Gordon
Wylie had been surprised to see the appellant and, according to the appellant,
had started shouting and swearing. The
appellant had pled guilty on an art and part basis to being part of an
intimidating crowd involved in a breach of the peace at the site and thereafter
in the assault upon Mr. Wylie. The
attack had been spontaneous.
[11] The sentencing judge narrates that it appeared to him that the
appellant had been involved in a breach of the peace and an act of violence,
committed in an attempt to persuade a company to alter its security
arrangements by using a particular firm.
In his view, this could only be considered as an aggravated crime. In sentencing the appellant he acknowledged
that he had to do so on the basis of the much reduced
charge to which he had pled guilty.
Nevertheless, he considered that he had been entitled to take into account
the background of rivalry between security companies in the west of Scotland. He also considered it relevant that the
appellant had been the Area Manager and, as such, the most senior employee,
along with the co-accused Rodden, who held a similar position, who was present at the incident. The sentencing judge states that the
appellant could have exercised his authority to prevent the commission of the
crimes. Instead he had accepted
responsibility for being involved in the breach of the peace and the assault
upon a representative of a competitor.
[12] The sentencing judge explains that, having regard to the
appellant's previous convictions for violence, particularly his conviction in
1979 in Aberdeen High Court, his subsequent conviction for two charges of
assault and two charges of breach of the peace in 1989 and his conviction under
the Firearms Act in 1993, as well as the position which he held in the company
and the background of rivalry between various security firms, he considered
that the appropriate sentence would have been 5 years imprisonment, but it was
restricted to one of 4 years to reflect the plea of guilty. The sentence was backdated to commence on 27 January 2005.
The submissions
[13] Senior counsel for the appellant drew to our attention that the
present appeal was associated with a number of other appeals arising out of the
sentencing judge's decisions in relation to co-accused. He emphasised the limited extent to which the
appellant had pled guilty to certain parts of charge (1). He emphasised that no weapon of any kind had
been involved, so far as the appellant was concerned. It was submitted that the sentencing judge
had lost sight of the limited nature of the offences in which the appellant had
been involved. The assault, of which the
appellant was guilty upon an art and part basis only
had been a spontaneous reaction on the part of the actor to a heated
situation. There had been no
premeditation. That was demonstrated by
the fact that the locus of the assault was an open public place. The injury suffered by the complainer had not
been severe, although, no doubt, it had been painful.
[14] Senior counsel drew our attention to the terms of the social
enquiry report relating to the appellant.
His attitude to the offences committed was disclosed there. It was evident from that report that the
appellant was remorseful about his involvement in this matter. The appellant was a family man who was concerned
for the welfare of his wife and children.
Senior counsel submitted references concerning the appellant from former
employers of the appellant, which were complimentary. The social enquiry report contained a risk
assessment which indicated that the appellant was at a low to medium risk of
re-offending in the near future. While
it had to be accepted that the appellant had certain serious previous
convictions, it was evident from the records relating to them that his
offending was confined to the quite distant past. The appellant had offered to plead guilty in
the terms which were subsequently accepted at an early stage in November
2004. However, the Crown had not been in
a position to accept the plea then, on account of the involvement of other
accused persons. Senior counsel reminded
us of the decision which we had already taken in the appeal at the instance of
Lee Burgun, who had also been sentenced to 4 years imprisonment. The court had reduced that sentence to one of
2 years imprisonment. It was pointed out
that Mr. Burgun had had no criminal record but his offending conduct had been
more extensive than that of the appellant.
He had offended after 15
September 2003. In all these
circumstances, it was submitted that the sentence imposed on the appellant was
excessive.
Decision
[15] In the light of the submissions made to us, we have reached the
conclusion that the sentencing judge lost sight of the limited extent of those
parts of charge (1) to which the appellant pled guilty. It is evident from the remarks of the
sentencing judge which preceded the imposition of his sentence on the appellant
that he took into account a range of matters which appear to us to be
irrelevant to the decision which he had to make. He expatiated upon the evils of aggressive
competition between providers of security in other parts of the United
Kingdom and the United
States, which appear to us to have
nothing whatsoever to do with the position of the appellant. In any event, he was not addressed by the
Crown or counsel for the appellant on such alleged evils. While the background to the appellant's
offences, which we have described, must plainly be taken into account in any
decision as to an appropriate sentence in his case, we consider that the
sentencing judge went far beyond that.
Furthermore, for reasons which we do not understand, he entered upon a
consideration of the completely hypothetical issue of what sentence might have
been appropriate if the conspiracy charge, or a significant number of incidents
specified in that charge, had been established.
Conspiracy was not established, nor were what
the sentencing judge calls a significant number of the incidents specified in
it. In our view the sentencing judge
appears to have distracted himself by consideration of this hypothetical matter
from a proper consideration of the appropriate sentence in the case of the
offences to which the appellant had pled guilty.
[16] In these circumstances we have come to the conclusion that the
sentencing judge's exercise of his discretion in the case of the appellant's
sentence was flawed and that that sentence is now a matter at large for the
exercise of our discretion. Having
regard to the whole circumstances of the appellant himself and the limited
involvement which he had in the matters averred in charge (1), we have come to
the conclusion that an appropriate starting point in his case would be one of 3
years imprisonment. Having regard to the
early stage at which the appellant offered to plead guilty in the terms that
were ultimately accepted, we consider that a discount of one third would be
appropriate. Accordingly, we shall quash
the sentence imposed and substitute for it a sentence of 2 years imprisonment
to run from 27 January
2005. In our view, such a
disposal would be consistent with the approach which we took in the appeal of
Lee Burgun. While the present appellant
has serious previous convictions and the appellant Lee Burgun did not, the most
recent of the appellant's previous convictions is dated 6 December 1993. It is evident from that that his offending,
apart from the present matter, has been very much in the past. Having regard to that and to the fact that
Lee Burgun pled guilty to offences more extensive than those in which the
present appellant was involved, we think it appropriate that the same sentence
should be imposed in each case.
