(First) Gordon Dewar and (Second) Barry McLean v. Her Majesty’s Advocate [2021] HCJAC 28

Notes of appeal against sentence:- The appellants appealed against the sentences imposed against them in relation to offences of spitting at police officers during the COVID pandemic. The appeals followed the general guidance provided by the court in the Crown appeal against sentence in H.M.A. v. Lindsay 2020 J.C. 293. On 16 February 2021 at Perth Sheriff Court the first appellant pled guilty on indictment under the accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to two charges:- (1) behaving in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that he acted in an aggressive manner towards police officers, shouted and swore at them and called them derogatory and racially offensive names, contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act2010 with a racial aggravation; and (2) assaulting a police officer by spitting in her face. In relation to charge 1, the sheriff imposed a sentence of 6 months imprisonment discounted from 9 months to reflect the plea. In relation to charge 2, the sheriff imposed a sentence of 22 months imprisonment discounted from 33 months which sentences were ordered to run concurrently. The appellant appealed against the sentence imposed in relation to charge 2 it being contended that the headline sentence of 33 months was excessive. It was submitted that the starting point of 33 months selected was excessive, particularly when the circumstances of the appellant’s case were compared to those of the respondent in Lindsay, where the charge included the aggravation of danger to the lives of the police officers. In relation to the first appellant the court allowed the appeal. The court considered that a starting point of 33 months imprisonment was more than twice the headline sentence in Lindsayand taking into account the circumstances of the present case a starting point of 15 months imprisonment was appropriate discounted to 10 months imprisonment to reflect the pela of guilty. The second appellant pled guilty to three charges:- (1) breach of the peace by shouting and swearing at police officers and threatening them with violence; (2) assaulting two officers by spitting at them; and (3) struggling violently whilst in a police car to the danger of its occupants. The appellant was sentenced to 9 months imprisonment reduced from 12 months on charge 1, 18 months reduced from 2 years on charge 2 and 18 months reduced from 2 years in relation to charge 3. The sentences on charges 1 and 3 charges were ordered to run concurrently, however, the sentence on charge 2 was consecutive resulting in a sentence of 3 years imprisonment. The appellant appealed against the sentence imposed it being contended that the starting point of the spitting charge (charge 2) was excessive and the sentence should have been made to run concurrently with the other two sentences. It was submitted that the appellant’s record was less than the appellant in Lindsay and the sentence imposed was excessive. Here the court allowed the appeal and considered that the starting point of 2 years imprisonment selected by the sheriff was too high, having regard to the guidance provided by the court in the case of Lindsay. The court considered the gravity of the appellant’s conduct merited a headline sentence of 12 months imprisonment discounted to 9 months to reflect the plea of guilty. In relation to the issue of whether the sheriff ought to have made the sentence in charge 2 run concurrently with the other two sentences the court considered that the conduct involved in charge 2 formed part of the same course of conduct as the commission of the other two offences as it was committed at the same time and in the same circumstances as the other two offences. The court did state that “there is no hard and fast rule that sentences arising out of the same course of conduct have to be concurrent”, however, the court was satisfied that the sheriff was correct to treat all of the offences as amounting to a single continuing sequence of events and to impose concurrent sentences for all three charges. As such the court quashed the sentence imposed in charge 2 and substituted a sentence of 9 months imprisonment to be served concurrently with the remaining two charges resulting in a total sentence of 18 months imprisonment.