APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord Johnston

[2007] HCJAC49

Appeal No: XC304/07

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL AGAINST SENTENCE

COLIN DUNNACHIE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Brown; Balfour + Manson LLP

Alt: Henderson, A.D.; Crown Agent

11 September 2007

Introduction

[1] The appellant, Colin Dunnachie, was indicted in Alloa Sheriff Court on three charges, one of assault and two of contravening section 113(1)(a) of the Sexual Offences Act 2003 ("the 2003 Act"). Charge (1) libelled that at his home address in Plean, Stirlingshire, he assaulted his father. Charges (2) and (3) each libelled contraventions of section 113(1)(a). On 19 March 2007 he pled guilty to an amended version of charge (1) and pled guilty as libelled to charge (3). His plea of not guilty to charge (2) was accepted.

[2 ] On 5 April 2007 the sheriff sentenced the appellant to six months imprisonment in respect of charge (1) and to two years and three months imprisonment in respect of charge (3). Each sentence reflected a discount of 25% in terms of section 196 of the Criminal Procedure (Scotland) Act 1995 to reflect the stage at which his intention to plead guilty was intimated. The sentences were backdated to 29 December 2006 and ordered to run concurrently. The appellant has appealed only against the sentence imposed in respect of charge (3).

The Sexual Offences Act 2003

[3 ] Sections 104 and 105 of the 2003 Act empower the court in certain circumstances to make orders known as sexual offences prevention orders. Section 107 provides inter alia as follows:

"(1)	A sexual offences prevention order -
	(a)	prohibits the [person in respect of whom the order has effect] from doing anything described in the order, and
	(b)	has effect for a fixed period (not less than five years) specified in the order or until further order.
(2)	The only prohibitions that may be included in the order are those necessary for protecting the public or any particular member of the public from serious sexual harm from [the person in respect of whom the order has effect].

[5 ] Section 113 of the 2003 Act provides inter alia as follows:

"(1)	A person commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by -
	(a)	a sexual offences prevention order; ...
(2)	A person guilty of an offence under this section is liable -
	(b)	on conviction on indictment, to imprisonment for a term not exceeding five years."

The charges and the pleas

[6 ] The appellant's plea in respect of charge (1) was that he assaulted his father by struggling with him and seizing him by the throat applying pressure to his injury.

[7 ] Charge (2), in respect of which the appellant's plea of not guilty was accepted, was in the following terms:

"you ... being subject to Sexual Offences Prevention Order granted at Stirling Sheriff Court on 10 October 2003 in terms of the Sexual Offences Act 2003 prohibiting you from consuming alcohol except within [his home address] did on 27 December 2006 at the licensed premises known as Nicky Tam's, 29 Baker Street, Stirling and The Clansman, Main Street, Plean, Stirling without reasonable excuse breach the terms of the said order in that you did consume alcohol within the said licensed premises; CONTRARY to the Sexual Offences Act 2003, Section 113(1)(a)."

[8 ] Charge (3), to which the appellant pled guilty as libelled, was in the following terms:

"you ... being subject to Sexual Offences Prevention Order granted at Stirling Sheriff Court on 10 October 2003 in terms of the Sexual Offences Act 2003 prohibiting you from consuming alcohol except within [his home address], or within any other address in which you may be residing and from being under the influence of alcohol in any public place did on 27 December 2006 at [his home address] without reasonable excuse breach the terms of the said order in that you were under the influence of alcohol in a public place; CONTRARY to the Sexual Offences Act 2003, Section 113(1)(a)."

The circumstances of the offences

[9 ] The circumstances giving rise to charge (1), according to the narrative placed before the sheriff by the Crown, may be summarised as follows. At about 18.45 hours on the date libelled, the appellant returned home to his parents' house. He was under the influence of alcohol. He became involved in a dispute with one of his parents' grandchildren about a video game that had been a Christmas present. His father intervened, asking him to calm down, but the appellant refused to listen, and the assault took place.

[10 ] After the assault, the appellant removed himself from the house, and stood in the street outside, awaiting the arrival of the police. He was there detained in circumstances which, it was accepted, constituted the offence libelled in charge (3).

[11 ] Before the sheriff the offence was described as a "technical" one. In response to that submission the sheriff pointed out that on the contrary the matter was serious because it could be inferred that the appellant had been drinking in Stirling in contravention of the sexual offences prevention order. That had been made clear by the appellant himself to the social worker who prepared the Social Enquiry Report. On the appellant's behalf, it was submitted to the sheriff that since the appellant's plea of not guilty to charge (2) had been accepted, that part of the Social Enquiry Report was not relevant. The issue of where the appellant had consumed the alcohol that resulted in his commission of the offence in charge (3) should be ignored.

The sheriff's reasons

[12 ] In his report to this court the sheriff explained his sentence in respect of charge (3) in inter alia the following terms:

"I could not accept that the Appellant's breach of the Sexual Offences Prevention Order ('SOPA') was merely technical. ... [T]here was nothing in the Crown narration or the Social Enquiry Report to support the notion that the Appellant's state of inebriation was the consequence of anything other than his consumption of alcohol whilst he had been in Stirling. This led to the inescapable inference that the appellant's state of inebriation leading to charge 3 came about because he had consumed alcohol in a public place in direct contravention of the SOPO. That was the basis on which I proceeded to pass sentence.

The significance of the SOPO against the Appellant is that when he drinks alcohol he becomes disinhibited and liable to engage in violence and inappropriate sexual behaviour, particularly towards lone adult females. On the occasion of the offence leading to charge 1 the appellant was intoxicated through drink and, on his own admission ... so intoxicated that he had little recollection of events. He engaged in violence. ... I could not be persuaded that this was a mere technical breach of the SOPO. On the contrary, the appellant's conviction in relation to charge 3 struck at the very heart of his sexual offending ...

The Appellant was assessed emphatically as 'being at VERY HIGH risk of re-offending sexually'. In particular the Appellant was at risk of committing indecent exposure or assault against an adult female he might meet in an isolated public place. It was reported ... that he had a record of having approached females and made sexualised comments, exposed himself to them and masturbated in their presence, indecently assaulting two women and on one occasion following a woman to her home."

In the light of these considerations the sheriff selected the sentence which he imposed in respect of charge (3).

The submissions for the appellant

[13 ] On the appellant's behalf it was submitted that the circumstances of the offence in charge (3), while they constituted a contravention of section 113(1)(a), did not merit a custodial sentence of the length imposed by the sheriff. The offence to which he pled guilty was being in the street outside his house while intoxicated. That had come about in the aftermath of the assault, and occurred while he waited in the street for the police to arrive. The sheriff had misdirected himself in proceeding on the basis that the appellant had consumed alcohol in public houses, since that was the charge in respect of which his plea of not guilty had been accepted. There was nothing in the narrative before the sheriff to suggest that any person whom the Sexual Offences Prevention Order was designed to protect was at any risk as a result of the offence in charge (3). It was not suggested that a custodial sentence was inappropriate, but the length of the sentence selected by the sheriff was excessive.

Discussion

[14 ] We are not persuaded that the sheriff was wrong to reject the characterisation of the offence in charge (3) as "technical". That the appellant was in the street outside his house while intoxicated was a clear breach of the order. However, we are persuaded that the sheriff did err in his approach to assessing the gravity of the offence. In the first place, it must be noted that in terms of section 107(2), the only legitimate prohibitions to be included in a Sexual Offences Prevention Order are those which are necessary for protecting the public or any particular member of the public from serious sexual harm. The sheriff's reference to the fact that when intoxicated the appellant is liable to engage in violence, and the comment that he engaged in violence (which can only be a reference to the assault on his father), therefore seems to us to be beside the point of the offence under section 113. Secondly, we are of opinion that the sheriff misdirected himself in proceeding on the basis that the appellant must have been drinking in Stirling. Granted that that would have involved a separate contravention of the Sexual Offences Prevention Order, and that his plea of not guilty to charge (2) libelling that offence had been accepted by the Crown, we are of opinion that the sheriff should have attached no weight to his inference as to where the appellant had become intoxicated (however well founded in logic that inference may have been). Thirdly, we are of opinion that, in assessing the gravity of the contravention libelled in charge (3), weight ought to have been attached to the circumstances in which the appellant came to be in the street while intoxicated. There was nothing before the sheriff to suggest that the circumstances were such that there was any appreciable risk to persons whom the order was designed to protect.

[15 ] In all these circumstance, while we agree that the sheriff was right to impose a custodial sentence in respect of charge (3), we consider that the period selected was excessive. We shall allow the appeal, quash the sentence imposed by the sheriff in respect of charge (3), and substitute for that sentence one of six months imprisonment, which we shall order to be served concurrently with the sentence in respect of charge (1).