Stalker successfully appeals against ‘excessive’ custodial sentence

A stalker who was sentenced to 21 months’ imprisonment for acting in a “bullying, offensive and controlling manner” towards his then partner has been given a community payback order after successfully appealing against his sentence.
 
The Appeal Court of the High Court of Justiciary ruled that, having regard to the age of the appellant and his personal circumstances, the original sentence imposed was “excessive”.
 
‘Fear and alarm’
 
Lord Menzies and Lord Turnbull heard that the appellant Andrew Murray pled guilty to a contravention of section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010 for engaging in a course of conduct over a six-month period in 2016 which caused the complainer “fear and alarm”.
 
After preparation of a Criminal Justice Social Work Report, he was sentenced in October 2017 to 21 months’ imprisonment.
 
However, the appellant challenged the sentence imposed, arguing that the charge itself was not one which would be bound to result in a custodial sentence
 
The unacceptable nature of the appellant’s conduct as set out in the charge to which he pled guilty was accepted, but it was submitted that the conduct ought to have been viewed in the course of a “dysfunctional relationship”.
 
Principally though, the submissions founded upon the appellant’s personal circumstances. 
 
Non-custodial disposal ‘appropriate’
 
It was pointed out that the appellant was aged 20 years old at the start of the offending and aged 21 at the end. It was said that he was of previous good behaviour. 
 
Attention was drawn to the appellant’s difficult upbringing as set out in the Criminal Justice Social Work Report and to the behavioural issues which were seen to underpin his offending.
 
It was also explained that since the offending ceased the appellant had taken various steps to bring about change in his life. 
 
Particular emphasis was given to the suggestion that the sentencing sheriff had failed to give “appropriate weight” to the appellant’s “youth” in identifying the appropriate disposal.
 
It was submitted that a non-custodial disposal was “appropriate” or, in the alternative, that the period selected was “excessive”.
 
Allowing the appeal, the judges said that in considering the sentence imposed in this case appropriate weight had to be given to the terms of section 204(2) of the Criminal Procedure (Scotland) Act 1995, which provides that: “A court shall not pass a sentence of imprisonment on a person of or over 21 years of age who has not been previously sentenced to a period of imprisonment or detention unless the court considers that no other method of dealing with him is appropriate.” 
 
Further factors to be given appropriate weight were the appellant’s age and background, as well as a number of other relevant factors concerning his upbringing which were detailed in the Criminal Justice Social Work Report.
 
‘Excessive sentence’
 
Delivering the opinion of the court, Lord Turnbull said: “In our opinion, there is force in the submission concerning the apparent lack of weight attached by the sheriff to the appellant’s age and to his lack of previous offending. 
 
“The Criminal Justice Social Work Report identified the presence of a number of issues of concern, such as domestic abuse, anger and emotion management, victim awareness, problem solving, consequential thinking skills and issues in relation to impulsivity. The author of the report considered that these were issues which could be addressed with benefit through intervention programmes. 
 
“Although the appellant was assessed as being unsuitable for the Building Better Relationships group work programme it was proposed that work could be undertaken with him on a one to one basis. As we would understand it, this was the basis upon which the recommendation for a non-custodial sentence was made. Whilst the sheriff refers in his report to the appellant being unsuitable for the group work programme he makes no mention of the suggestion that a one to one programme would be available.
 
“As set against these considerations full weight has to be given to the nature of the appellant’s offending. He undoubtedly engaged in unpleasant and offensive behaviour. We recognise that aspects of his conduct must have caused considerable upset to the complainer, particularly given her own distressing circumstances. 
 
“In no sense are we intending to suggest that such behaviour can be condoned or excused. On the contrary, it is behaviour which requires to be punished. However, it is important to note that there were no incidents of physical violence being directed towards the complainer herself.”
 
He added: “Given the appellant’s age at the time offending, the fact that he had no previous history of criminal conduct and taking account of the other circumstances which we have drawn attention to, and bearing in mind that the appellant has now served a period which is the equivalent of a sentence of over 4 months’ imprisonment, we are persuaded that the sentence imposed by the sheriff was excessive.
 
“We are therefore minded to quash the sentence and in its place to impose a Community Payback Order for a period of two years with a supervision requirement and a requirement to perform a period of 200 hours unpaid work in the community.”
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