Man admonished for assaulting ex-wife given harsher sentence by Sheriff Appeal Court
A Crown appeal against the sentencing of a man convicted of assaulting his ex-wife has succeeded before the Criminal Division of the Sheriff Appeal Court, which has imposed a community payback order in place of the original sentence.
John Donnelly originally received a sentence of admonition from a summary sheriff, who chose not to impose a non-harassment order. The Procurator Fiscal at Hamilton appealed the sentence on the grounds that it was unduly lenient and that the decision not to impose such an order was inappropriate.
The appeal was heard by Appeal Sheriffs Norman McFadyen, Lorna Drummond, and Fiona Tait. The Crown was represented by Edwards QC and the respondent by Laurie.
Unseen social work report
The respondent was tried on a charge of assaulting his ex-wife at an address in Strathaven in December 2017 by striking her on the head and body and causing her to fall against furniture. This was said to be aggravated by involving abuse per Section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. Following a two-day trial, he was found guilty under deletion of the words “kick her on the body” from the wording of the charge.
The trial sheriff reported that on the day of the incident the respondent had wanted to speak to the complainer because she recently announced that she wanted a divorce. The respondent described his behaviour as being the result of him losing his temper, although the trial sheriff did not find him to be a credible and reliable witness.
At the sentencing diet, the summary sheriff did not have the benefit of a criminal justice social work report due to a number of delays relating to Covid-19 and other matters. Noting that the respondent was a first offender, that the relationship had ended, and that he had found the extended period over which sentencing had been delayed stressful, she admonished the respondent.
The summary sheriff explained that she considered whether a non-harassment order should be imposed but decided there was no need for one having regard to the termination of the relationship without any further incident. However, while the sheriff had not seen a CJSWR, one had been prepared on the order of the trial sheriff.
The CJSWR detailed difficulties with the respondent resulting in police calls during 2018 as well as the existence of a business relationship between the complainer and the respondent which required to be conducted through lawyers. The trial sheriff considered that the respondent needed supervision to address anger management issues that may lead to future offences.
It was submitted by the Crown that the sentencing sheriff essentially knew nothing of the facts of the case and was simply not in a position to proceed to sentence. Too great an emphasis had been placed on the time which had passed since the commission of the offence, especially in light of the delays in the procedural history of the case. The sentence imposed failed to satisfy the need for retribution and deterrence, particularly for an offence which was aggravated by Section 1 of the 2016 Act.
No steps to inform herself
Delivering the opinion of the court, Appeal Sheriff McFadyen began: “This was a case where the sentencing sheriff was simply not in a position to pass sentence, having taken no steps to inform herself of the facts of the case.”
He also noted: “The summary sheriff who had heard the evidence at the trial was present in the building. He would have been well-equipped to form a view on the appropriate range of sentences and to decide on the appropriate sentence in the case. If, as was suggested in the sentencing sheriff’s report, there was a difficulty in the trial sheriff hearing the case at a particular time in the day, no doubt arrangements could have been made for it to call at a different time.”
Explaining the circumstances in which the court considered that a new sheriff could carry out sentencing, Appeal Sheriff McFadyen said: “Other than in that sort of simple case where the sentencing sheriff is essentially implementing the decision of the sheriff who heard the facts, any sheriff who has not heard the facts and comes to sentence an offender requires to take steps at least to attempt to ascertain the facts. That applies in any case, whether or not there has been a trial.”
He continued: “What happened in this case was unacceptable and seems to us to have been irregular, but the question for us is whether it resulted in an unduly lenient sentence on the one hand and an inappropriate decision not to impose a non-harassment order on the other.”
Turning to the leniency of the sentence, he said: “This was a sustained attack on a woman in her own home, with a domestic aggravation and where there were alarming statements by the respondent, including in his own evidence at trial as regards red mist and, by implication, anger management. There is a vast spectrum of behaviour in domestic violence cases, but this was by no means at the lowest end of the spectrum.”
Considering whether it was appropriate for the court to interfere with the sentence, he went on to say: “We approach the matter in this case on the basis of asking ourselves whether an appropriate sentence in this case would have been significantly more severe or demanding than that which was imposed. Approached on that basis, we conclude that it would indeed be appropriate to impose, with the consent of the respondent, a community sentence in the form of a community payback order.”
Finally, addressing the appropriateness of a non-harassment order, Appeal Sheriff McFadyen said: “We consider that the sentencing summary sheriff has failed to justify her decision in this matter and, especially bearing in mind what is said in the criminal justice social work report about events since the offence and the business relationship between the respondent and complainer and what we are told about the complainer’s continuing attitude, an order should have been imposed.”
For these reasons, the court quashed the sentence of admonition and imposed both a community payback order with a requirement of 18 months’ supervision and 160 hours of unpaid work to be completed within 12 months, and a non-harassment order prohibiting contact with the complainer for two years.
© Scottish Legal News Ltd 2021