Ryan Lawson v. Her Majesty’s Advocate [2018] HCJAC 9

Description

Note of appeal against conviction and sentence:- On 15 March 2017, at Dundee Sheriff Court, the appellant was convicted after trial on indictment of:- (a) a charge of assault on his former partner, A-MM, by pushing, pulling and seizing her by the neck in April 2014 (charge 3); (b) a charge of assault on his former partner, LN, by pushing her to the floor to her injury and seizing her by the throat in January 2015 (under provocation in relation to pushing the complainer to the floor) (charge 6); and (c) a further charge of assault on LN by grabbing her by the throat in March 2015 (charge 8). In addition to the charges which the jury convicted him of the appellant also pled guilty to:- (a) a breach of bail by approaching LN in March 2015 (charge 7); (b) two charges of failing to appear at trial diets (charges 10 and 11); (c) two charges of breach of special conditions of bail in relation to reporting to the police and curfew restrictions (charges 12 and 13); and (d) a charge of attempting to pervert the course of justice by providing the police with a false identity in August 2016 (charge 14). The appellant was sentenced to 6 months imprisonment in relation to charges 3, 6 and 8 and 3 months imprisonment on each of the remaining charges with the sentences on charges 10 and 11 and on 12 and 13 to run concurrently with each other but the other sentences were to run consecutively to each other, resulting in a total of 30 months imprisonment. In addition, a Supervised Release Order of 12 months was imposed and Non- Harassment Orders of indeterminate lengths were made in relation to A-MM and LN. The appellant appealed against his conviction in relation to charge 6 on the grounds that the trial sheriff had erred in withdrawing the special defence of self-defence lodged on behalf of the appellant in relation to charge 6 from the jury. The appellant also appealed against the sentence imposed on the grounds that it was excessive. In relation to charge 6 the appellant had been indicted in relation to a more serious charge which included allegations of kicking the complainer and repeatedly punching her on the head and body. During the course of her evidence the complainer conceded that there had been an argument between her and the appellant and that she had slapped him on the face which resulted in the appellant pushing her causing her to fall on a set of drawers. The appellant did not give evidence and there was no other source of evidence in relation to the circumstances relating to charge 6 which the appellant could found upon in relation to his special defence of self-defence. The sheriff withdrew the special defence from the jury’s consideration on the basis that there was no evidence from which the jury could infer that the appellant had an apprehension of further attack. It was submitted here on behalf of the appellant that the sheriff was wrong to withdraw self-defence from the jury’s consideration there being an evidential basis for the special defence to remain in relation to the push element of the assault albeit it was accepted that neither self-defence nor provocation could apply in relation to the aspect of the charge relating to seizing the complainer by the throat. In relation to the appeal against sentence it was submitted that whilst a custodial sentence was appropriate the libel in relation to the charges was significantly reduced and the appellant’s criminal record was not analogous and had been disposed of at summary level. It was submitted that the overall period of 30 months imprisonment was excessive and having regard to Nicholson v Lees 1996 JC 173 the court was bound to consider the cumulative overall effect of selecting consecutive sentences. It was further submitted that the sheriff had erred in holding that a SRO was necessary to protect the public from serious harm in light of the appellant’s limited schedule of previous offending. Finally, it was submitted that in light of the restricted nature of the assaults it was unnecessary and excessive to impose two indefinite Non-Harassment Orders. On behalf of the respondent it was submitted that the sheriff had been correct to remove self-defence on account of the absence of the three requirements of self-defence, namely, imminent danger, absence of reasonable opportunity to escape and the use of proportionate force. Here the court refused the appeal. Whilst the court acknowledged that the jury had considered that the push by the appellant, which followed the slap from the complainer, was under provocation it fell well short of self-defence which requires as part of it an apprehension of continuing violence and, in the absence of evidence from the appellant, there was no evidence available to the jury and, as such, the trial sheriff was entitled to withdraw the special defence form the jury’s consideration. In relation to the appeal against sentence, the court noted that the appellant had a number of previous convictions including housebreaking with intent to steal and possession of a machete, a contravention of section 41(1)(a) of the Police (Scotland) Act 1967 and a conviction for wilful fire-raising to the home of an ex-partner in 2013 which resulted in a sentence of 8 months imprisonment. In addition, having regard to the terms of the Criminal Justice Social Work Report which highlighted issues of the appellant denying, minimising and blaming the complainers for the offences and the appellant’s solicitor requesting a SRO at the time of sentencing, the court considered that there were no elements of the sentence that could be said to be excessive and the appeal against sentence was refused.