His Majesty’s Advocate v. David Docherty [2024] HCJAC 36

Crown appeal against sentence:- The respondent was convicted after trial at Glasgow High Court of four charges (14 further charges having been withdrawn by the Crown during the course of the trial):- (1) charge 1 - culpable and reckless conduct by discharging a loaded shotgun in the direction of the living room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; (2) 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; (3) 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; and (4) charge 18 – attempting 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. The respondent was sentenced to a total of 40 months imprisonment comprising of 12 months in relation to charge 1; 9 months concurrent in relation to charge 2; 24 months to run consecutively in relation to charge 17; and 4 months to run consecutively to all other sentences in relation to charge 18, which sentences were to commence at the conclusion of any sentence the respondent was subject to at the time of sentencing. The Crown appealed against the sentences imposed it being contended that they were unduly lenient in that the applicable sentencing purpose was not achieved by failing to adequately protect the public and express disapproval of the offending behaviour whilst referring to the rehabilitation of the respondent which was of limited relevance given his significant history of offending. It was submitted that the sentencing judge underestimated the seriousness of the offences in that charges 1 and 17 were particularly serious with the potential for serious harm. It was further submitted that the headline sentence of 6 years fell far below what was appropriate given the nature of the offences and the sentencing judge had placed too much weight on the fact the respondent was currently serving a sentence of imprisonment. In addition, the sentencing judge had failed to give proper consideration to the sentencing guidelines from England & Wales or what the Court of Appeal said in R v Avis [1998] 1 Cr App R 420 and R v Sheen [2012] 2 Cr App R (S) 3. Furthermore, the sentencing judge failed to reflect the aggravating factors present, in particular, the respondent’s significant criminal record and that the complainer in charge 17 was an on duty police officer. On behalf of the respondent it was conceded that the sentence imposed in relation to charge 1 was unduly lenient, with senior counsel criticising the judge’s approach to sentencing in a number of respects. Here the court allowed the appeal it being satisfied that the sentences imposed were unduly lenient. The court considered that the sentencing judge had underestimated the seriousness of the offences, in particular, charges 1 and 17 both of which were extremely serious with both culpability and harm assessed as high. The court also noted that the respondent had a lengthy schedule of previous offending dating back to 2005 and including numerous convictions at the sheriff court on indictment and one at the high court and the sentencing judge had given undue weight to the prospects of rehabilitation which were described as remote, with insufficient weight being placed on the relevant factors, namely, the protection of the public, punishment and public disapproval. The court also noted that there had been a failure by the sentencing judge to have regard or refer to the English and Wales sentencing guidelines as a cross check which would have highlighted the leniency of the sentences. The court also noted that the sentencing judge erred in relation to the credit to be afforded to the respondent for the period he had spent on remand, with the allowance of 32 months being excessive having regard to what was said by the court in O’Doherty v HMA [2022] HCJAC 31. The court noted that, following the case of HMA v Fergusson [2024] HCJAC 22 which had not been available to the sentencing judge at the time, the correct approach was for the sentencing judge to consider the appropriate sentence for individual charges, consider whether concurrent or consecutive sentences were appropriate, reflect on the overall effect of that or whether an adjusted cumulo sentence would be appropriate and then consider how to reflect the time spent by the respondent on remand. The court noted that the sentencing judge did not call for a CJSWR, thus depriving the court of the possibility of the imposition of an extended sentence, however, the court did not consider, in light of the sentences being imposed that an extended sentence was necessary. The court considered that the appropriate individual sentences would be in relation to charge 1 - 5 years 6 months; charge 2 - 4 years concurrent; charge 17 - 4 years 6 months, consecutive to the sentence on charges 1 and 2; and charge 18 - 18 months, consecutive to the sentence on charge 17, to reflect the different circumstances and intent of the offences totalling 11 years and 6 months. The court had regard to how fair and proportionate that sentence was and considered that to impose the sentences consecutively to reflect their differing nature and intent would result in an excessive overall sentence and considered that a headline cumulo sentence of 10 years be imposed from the date of the court’s decision making it concurrent with the remainder of the sentence being served.