A scaffolder who was sentenced to 12 months’ imprisonment after pleading guilty to having a kitchen knife in his car which was found following a police search has successfully appealed against his sentence.
A sheriff had rejected the accused’s plea in mitigation that the knife was used as “work equipment” and had fallen from his belt as “implausible”.
But the Appeal Court of the High Court of Justiciary ruled that the imposition of a custodial sentence was “excessive” in the circumstances and instead imposed a community payback order.
Lord Brodie and Lord Drummond Young heard that the appellant Anthony Stewart pled guilty at a continued first diet at Glasgow Sheriff Court in July 2017 to charges 2, 3, 4 and 5 on an indictment: charge 2 was having with him a bladed weapon “without reasonable excuse or lawful authority”, contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995; while charges 3 to 5 were possession of class B drugs, respectively amphetamine, cannabis and cannabis resin, contrary to section 5(2) of the Misuse of Drugs Act 1971.
The explanation tendered for the presence of the knife by the accused’s solicitor in mitigation was that it was work equipment which had fallen from his belt, had been found by him and then placed out of sight in the rear passenger footwell, but he subsequently forgot to retrieve it.
But the sheriff dismissed that explanation, observing that there were “tools of a more suitable nature readily available”.
Having considered the terms of the Criminal Justice Social Work Report, the sheriff imposed a sentence of 12 months’ imprisonment, discounted from 15 months for the plea, in respect of charge 2 with two months attributed to bail aggravations; and two months imprisonment in respect of each of charges 3, 4 and 5, to be served concurrently with one another.
However, the appellant appealed on the grounds that the imposition of a custodial sentence was “excessive” and, alternatively, that if a custodial sentence was not excessive then a shorter jail term would have “adequately met the requirements of punishment and deterrence in the case”.
Among the mitigating circumstances listed in the note of appeal was the appellant’s “uncontradicted explanation” for the presence of the knife in the car, and that while he had previous convictions they demonstrated “no propensity to carry knives”.
On behalf of the appellant, advocate Fred Mackintosh argued that the sheriff “erred” in the way he dealt with the explanation for the presence of the knife in the vehicle.
It was also submitted that the drugs charges by themselves would not justify imprisonment and that the sheriff seemed to accept that but for the contravention of section 49(1) of the 1995 Act, custody would not have been necessary.
The author of the Criminal Justice Social Work Report had also assessed the appellant as suitable for a community disposal, whether by a restriction of liberty order or community payback order.
The court was also told that appellant was a single parent with custody of his 16-year-old daughter who was about to sit her Higher exams.
It was submitted that the circumstances of the appellant’s daughter and the the availability of alternatives to custody were indicators that the sentence was “excessive”.
On behalf of the Crown, advocate depute Kathleen Harper accepted that the explanation for the presence of the knife in the footwell of the appellant’s vehicle was not “so manifestly absurd that it can be disregarded”.
It was also submitted that charge 2 should be assessed at the “lowest range of culpability”.
Custodial sentence quashed
The appeal judges ruled that a custodial disposal was not an appropriate one in this case.
Delivering the opinion of the court, Lord Brodie said: “We are immediately persuaded that the sheriff erred in his rejection of the mitigation offered in respect of charge 2 which was the most serious of the charges to which the appellant pled guilty.
“As is made very clear in the recent case of Ross v HM Advocate 2015 JC 271, a sentencing judge is not bound to accept the veracity of what is advanced by way of mitigating circumstances even where it is not inconsistent with a guilty plea and where it is not challenged by the Crown, but if the judge considers an account to be implausible or if he doubts its veracity for any other reason then as a matter of fairness and procedural propriety he must so advise the accused and afford the accused the opportunity to establish what he asserts by way of proof in mitigation.
“If the judge does not do that, and the proffered mitigation is not manifestly absurd, then he will usually be obliged to proceed on the basis that what has been put forward in mitigation is true.”
The judges also considered that the the circumstances of the appellant’s daughter were relevant to the question as to whether a custodial disposal was appropriate.
Lord Brodie added: “We have been told that she will be sitting Higher grade exams during the current academic year. While it may be the case that she is presently being cared for by relatives, it is obviously an important time for her and we would immediately accept that her father being in custody can only have a disruptive effect. We consider that that is an outcome which is to be avoided where doing so is compatible with the public interest.
“We shall quash the sentence of imprisonment. We shall substitute a community payback order with a requirement of unpaid work for 100 hours.”