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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 36
HCA/2024/247/XC
Lord Justice Clerk
Lady Wise
Lord Armstrong
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
CROWN APPEAL AGAINST SENTENCE
by
HIS MAJESTY'S ADVOCATE
Appellant
Against
DAVID DOCHERTY
Respondent
Appellant: The Lord Advocate (Bain KC); the Crown Agent
Respondent: Graham KC; John Pryde & Co
____________________
3 September 2024
Introduction
[1]
This is a Crown appeal against a sentence imposed at the High Court in Glasgow in
respect of various firearms offences and an offence of attempting to pervert the course of
justice. The respondent was indicted on eighteen charges. All but four of the charges were
2
withdrawn at the close of the Crown case, of which the respondent was ultimately
convicted. These were as follows:
(a)
Charge 1 culpable and reckless conduct by discharging a loaded shotgun in
the direction of the living room window at 235 Sandwood Road, Glasgow, shattering
the window and spraying pellets of shot;
(b)
Charge 2 possession of a shotgun without a licence contrary to section 2(1)
of the Firearms Act 1968, as amended, during the events forming the basis of
charge 1;
(c)
Charge 17 possession of a firearm or imitation firearm with intent to cause
another person, in this case a police officer, to believe that unlawful violence would
be used against him, contrary to section 16A of the 1968 Act, as amended;
(d)
Charge 18 attempt to pervert the course of justice by concealing or
destroying evidence, in that he removed and disposed of false registration plates
from, and set fire to, the vehicle involved in charge 17.
[2]
On 19 April 2024 the respondent was sentenced to a total of 40 months
imprisonment, broken down as follows:
(a)
Charge 1, 12 months;
(b)
Charge 2, 9 months, concurrent;
(c)
Charge 17, 24 months to run consecutively; and
(d)
Charge 18, 4 months to run consecutively to all other sentences.
These sentences were to commence at the conclusion of any sentence the respondent was
currently liable to serve.
3
Circumstances
Charges 1 and 2
[3]
In the early hours of the morning of 28 July 2020 the respondent discharged a
shotgun through the living room window of the locus, smashing the glass and scattering
pellets from the firearm. Pellets were recovered from the locus. The respondent did not
hold a shotgun certificate. Fortunately, the 66 year old occupant of the house was not
present, but she reported the matter to the police on returning home the following morning.
Charges 17 and 18
[4]
On 24 April 2021, Police Constables Tom Marshall and Christopher Walsh were on
mobile patrol in Argyle Street, Glasgow as armed response officers. Their attention was
drawn to a white Citroen vehicle. They carried out a PNC check which disclosed that the
registered keeper of the vehicle and only insured person was a female, whereas the driver
was a stocky male and the respondent was the passenger. The officers pursued the vehicle
until it came to a halt in Lancefield Quay, Glasgow. PC Marshall stepped out and
approached the driver's side of the vehicle. The respondent pointed what appeared to be a
firearm towards Marshall, who jumped back and returned to the police vehicle. He
immediately reported to his colleague that a firearm had been presented at him. The
Citroen must then have been driven away, because later on that date the same vehicle was
discovered in Milngavie, in a burnt out condition. There was evidence from which it could
be inferred that the respondent was responsible for destroying the vehicle.
The sentence
[5]
The temporary judge referred to the respondent's record of previous convictions
which was lengthy and contained convictions for violence. The judge noted that no person
4
was present in the house into which the shotgun was discharged in charge 1 and the most
serious charge, charge 17, was of short, albeit highly alarming duration. He attached
particular weight to the respondent's current status as a person serving a significant
custodial sentence (4 years imprisonment from 11 September 2023), and in particular the
relatively lengthy periods of time until he would commence the current sentences and
thereafter regain his liberty. In this respect the temporary judge focused on the issue of
rehabilitation, stating that the combination of the two sentences would provide sufficient
time for the respondent to consider his lifestyle and have the opportunity for rehabilitation.
In mitigation counsel referred to the respondent's mother being in poor health and that he
had a 16 year old son suffering from mental health issues.
[6]
The judge considered that an overall sentence of 6 years was merited. However, that
headline sentence fell to be reduced having regard to the time which the respondent had
spent on remand. This had been interrupted by the 4 year sentence but 16 months were
exclusively in relation to the present offences. The temporary judge doubled this to deduct
32 months, leaving a balance of 40 months which he distributed as shown above. He
ordered that the sentences should run consecutively to any sentence which the respondent
was currently serving or liable to serve, to ensure that he obtained no benefit from the fact
that he was currently imprisoned in respect of another offence.
[7]
In his report the temporary judge indicates that having regard to HMA v Fergusson
[2024] HCJAC 22, issued after imposition of the present sentences, he considers he ought to
have imposed a cumulo sentence and explained what each offence merited as a sentence and
why a shorter overall sentence was appropriate. He did not consider the sentencing
guidelines issued by the Sentencing Council for England & Wales which relate to offences of
the kind under consideration.
5
The appeal
Crown Submissions
[8]
It is submitted that the sentence imposed was unduly lenient. The sentences did not
achieve the applicable sentencing purposes in the present case. These were the protection of
the public, punishment of the offender and expressing disapproval of offending behaviour.
The temporary judge made no reference to these purposes in his report. He did however
refer to rehabilitation, but this was of limited application in the present case standing the
respondent's criminal history.
[9]
The temporary judge had underestimated the seriousness of the offences. Charges 1
and 17 in particular were extremely serious, and involved planning and premeditation.
There was a very high degree of recklessness in firing a shotgun through the window of a
residential property and the potential harm was significant. Death or serious injury could
have resulted in charge 1. There was no indication that the respondent was aware that no-
one was in the property at the time. There was actual harm to the property. The
circumstances of charge 17 indicated an intention to cause harm. Significant alarm and
distress was caused to the victim. The duration of the offence was of limited relevance
standing its serious nature. Charge 18 involved the destruction of evidence implicating the
respondent in an extremely serious offence (charge 17).
[10]
The headline sentence of 6 years imprisonment was far below what was necessary
and appropriate for the offending. The temporary judge:
(i)
placed too much weight on the length of the sentence which the respondent
was currently serving, and which he would serve before the sentence on the instant
charges commenced;
6
(ii)
wrongly failed to have regard to relevant sentencing guidelines from England
& Wales or guidance of the Court of Appeal of England & Wales in R v Avis
(iii)
paid insufficient regard to the aggravating factors of (a) the respondent's
appalling criminal record; and (b) that the victim in charge 17 was a police officer, in
uniform and acting in the execution of his duty.
Only limited mitigating factors were identified and those which were are without vouching.
[11]
Charge 2 would have fallen within category A1 of the relevant English Guideline
with a range of 2 years 6 months to 4 years 6 months. Charge 17 would have been in
category A2 with a range of 4-8 years and a starting point of 6 years.
Submissions for the respondent
[12]
Senior counsel for the respondent did not seek to defend the approach of the
temporary judge which he described as singularly unhelpful and disclosing a perverse way
of approaching sentence. The report contains "too much arithmetic and too little logic". It
was conceded that the sentence for charge 1 was unduly lenient. The approach in relation to
other charges was not defended, but no concession was made in the absence of a clearer
understanding of the judge's thinking process. The task should have been approached by
identifying appropriate individual sentences; and whether they should be concurrent or
consecutive; then by reflecting on the totality thereof; and deciding whether a different
cumulo sentence would be appropriate; and finally determining how to account for the time
spent on remand, bearing in mind that commencement at a future, as well a past, notional
7
Decision
[13]
We are satisfied that the sentences imposed in this case meet the test for undue
leniency.
Seriousness
[14]
It is clear that the temporary judge underestimated the seriousness of the offences,
especially charges 1 and 17, both of which are extremely serious. The seriousness of an
offence is to be determined by the levels of culpability and harm involved. Harm in this
context includes harm which might have been caused by the offence. In the present case
both culpability and harm are high.
[15]
In relation to both charges 1 and 17 there is a degree of planning or premeditation, in
charge 1 by taking into a public place a loaded shotgun, illicitly possessed, and discharging
it; and in charge 17 by taking the weapon with him in the first place, producing and using it
to prevent further action by police officers performing a legitimate stop exercise. Charge 1
also involved a significant, indeed remarkable, degree of recklessness. 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. There is nothing to suggest that
the respondent was in fact aware that no one was present in the property. Presenting a
weapon at a police officer as the respondent did was clearly designed to alarm, intimidate
and frighten, and this implies the intent to cause harm. These are all factors listed at
paragraph 10 of the Scottish Sentencing council's Sentencing Process Guideline as relevant
to the assessment of culpability.
8
[16]
As to harm, the shotgun was fired into a living room window, the very place where
someone is reasonably likely to have been present, and potentially in the line of fire. The
potential level of harm was grave, raising the possibility of death or serious injury had
someone been present. 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.
[17]
The respondent's previous convictions are a further, and serious, aggravating factor.
His record stretches back to 2005. It contains numerous appearances at sheriff and jury level
and one at the High Court. Most significant are those for offences of violence, including
serious assault, and police assault, in particular a conviction in 2016 for culpable and
reckless conduct, involving possession of a knife, a struggle with police officers and the
permanent disfigurement of one officer.
[18]
The charges indicate a pattern of offending involving the use of firearms, charges 1
and 2 dating from July 2020 and charge 17 from almost a year later, April 2021.
Sentencing purposes
[19]
The temporary judge also erred in his consideration of the relevant sentencing
purposes. The only one he 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, and the
carrying and use of weapons, he has convictions for drugs offences, various offences of
9
dishonesty (fraud, forgery, assault and robbery), road traffic offences and breach of
conditions of bail or other court orders, all on a repetitive basis. 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.
Guidelines from England & Wales
[20]
The sentencing judge did not consider sentencing guidelines from England & Wales,
two of which have relevance here, in respect of charges 2 and 17. The court has repeatedly
noted that whilst such guidelines must be used with a degree of caution, having regard to
the different systems involved, differing sentencing regimes and different early release
provisions, they remain, in cases where there is no specific guideline from the Scottish
Sentencing Council on the subject, of assistance as guidance on general levels of sentencing
in the areas concerned, and in particular as a cross check for the sentence selected. Had the
temporary judge consulted these guidelines he would immediately have seen that the
figures selected by him were verging on derisory. It is clear that there is a "major disparity"
(HM Advocate v AB, para 13) when the sentences imposed on charges 2 and 17 are cross-
checked with the relevant guidelines. We consider that the Lord Advocate was right to
suggest that charge 2 would, under the guidelines, be likely to be considered a category A1
offence. Charge 17, involved "conduct intended to maximise fear or distress", and to make
the officer believe the weapon would be used against him; it clearly caused distress and
alarm, although the exact degree thereof is not known. There are aggravating factors, and
10
no mitigating factors. Having regard to the identity of the victim, which is not referred to in
the English guideline but which we think would have to be taken into account, suggests that
the offence would be at the upper end of A3, edging into A2. Either way, reference to the
guidelines as a cross check would clearly have shown the inadequacy of the sentences
selected.
Time on remand
[21]
A further error is in relation to the allowance of 32 months credit for the time spent
on remand, having regard to the case of O'Doherty which the judge seems to have
overlooked. As explained in that case the former practice of simply doubling remand period
for a short term sentence or adding a half for a long term one, is unlikely to reflect the reality
of current early release practice.
General approach
[22]
Recognising that the temporary judge did not at the time have the benefit of the
decision in Fergusson, nevertheless we are of the view that he rather approached things back
to front. Having identified that a cumulo sentence of 6 years might be appropriate, he then
deducted 32 months, to account for the time on remand. That left a period of 40 months
which he then allocated as already noted. As senior counsel for the respondent submitted,
he should first have addressed the individual charges, considered whether concurrent or
consecutive sentences were appropriate, reflected on the overall effect thereof and whether
an adjusted cumulo sentence would be appropriate, and then considered how to reflect time
on remand.
[23]
As a final point to note, the sentencing judge did not obtain a CJSWR, being
persuaded by Counsel that he could and should proceed to sentence there and then, having
11
regard to the respondent's prior convictions and the fact that he was serving a sentence. The
judge did not appear to consider the question whether the nature of the offences raised the
possibility that an extended sentence might be merited. We have considered that matter,
and whether we should obtain a CJSWR to address risk, but given the sentence which we
have determined is appropriate we do not think that it can be said that the period during
which the offender would be on licence would be inadequate for the protection of the
public. We have therefore concluded that a CJSWR is not necessary.
Conclusion
[24]
The overall effect of the errors is that it falls to this court to sentence of new. In our
view appropriate individual sentences for the offences in question, having regard to their
serious nature, and the respondents appalling record, would be:
Charge 1, 5 years 6 months; charge 2, four 4 years concurrent; charge 17, 4 years 6
months, consecutive to the sentence on charges 1 and 2; charge 18, 18 months,
consecutive to the sentence on charge 17, to reflect the different circumstances and
intent of the offences.
The total of these offences would come to the figure of 11 years and 6 months. However, we
are mindful that in sentencing for multiple offences in this way 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. That leaves the issue of how to deal with the matter of
12
the time spent on remand. The precise situation which arises in this case, where the time on
remand was continuous but interrupted by a subsequent sentence, was not under
consideration in O'Doherty but similar problems of calculation arise. Senior Counsel for the
respondent submitted that whilst backdating to a notional date would mean the entire 4
year sentence would be rendered nugatory, and thus an unsatisfactory outcome, were the
court simply to impose the sentence from the date of our decision, making it concurrent with
the remainder of the sentence currently being served, the end result, having regard to the
release provisions which would otherwise have applied, would be little different than were
the court able realistically to carry out an O'Doherty type calculation. There is much force in
this contention, and that is the course of action we shall adopt.
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