APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lady Cosgrove	[2010] HCJAC XJ1035/10, XJ1036/10, XJ1037/10, XJ1038/10, XJ1039/10, XJ1040/10, XJ1041/10, XJ1042/10 & XJ1043/10 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by EMMA FERNS Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _____________

Appellant: J Keenan, solicitor advocate; Lavery Smith, Glasgow

Respondent: Henderson AD; Crown Agent

23 November 2010

[1] On 25 August 2010, at Glasgow Sheriff Court, the appellant appeared, at the age of 19, for sentence on eleven complaints. She appeals against sentences on nine of them. The complaints were as follows: (1) on 3 October 2009 behaving in a racially aggravated manner to staff at a shop in Glasgow, from which she was barred, whilst on bail, and on 7 October 2009 assaulting a female member of staff at the same shop by striking her on the head, again on bail; (2) on 19 October 2009 kicking a police officer on the legs after the appellant had been asked to stop shouting and screaming in a public call box; (3) on 6 November 2009, in Sauchiehall Street, giving the police a false name, whilst on bail, and then struggling violently with the police in the vehicle transporting her to the local police office, whilst on bail; (4) on 17 December 2009 stealing £40 from the flat of her mother and grandfather, whilst on bail, and being in that flat contrary to a bail condition; (5) on 21 January 2010 assaulting a male in a flat by repeatedly slapping and scratching his face, vandalism in the same flat by smashing a television and a breach of the peace at the same location; (6) on 29 January assaulting a security guard at Lidls in Jamaica Street by punching him on the face, whilst on bail, and in a racially aggravated manner and, at the same time, behaving in a racially aggravated manner by abusing staff, again whilst on bail; (7) on 28 January 2010 at a shop in Hope Street, from which she was also barred, assaulting the shopkeeper by throwing a box of chocolates at him to his injury, whilst on bail; (8) on 3 July 2010 at Inglefield Street Hostel threatening a female, again whilst on bail, and giving a false name to the police; and finally (9) on 17 August 2010 at a flat in Kingsway Court obstructing the police by refusing to open the door whilst on bail.

[2] The appellant had failed to appear in respect of complaints 1, 2, 3 and 6 and warrants were issued for her arrest on 17 December 2010. She had appeared from custody on 30 December and was remanded until 20 January, when the Sheriff imposed a 2 year probation order on complaints 1 and 6, admonished her on the two other complaints, the sentences on which have not been appealed, and deferred sentence on a further four. Meantime, on 27 May, the appellant appeared from custody and pled guilty to complaint 7, but she was still allowed bail. After several failures to appear, she pled guilty to complaint 8 on 5 July. She was yet again granted bail and once more failed to appear, finally being arrested on 17 August. Notwithstanding that, she was given bail again and required to be re-arrested on 23 August 2010.

[3] The appellant had been placed on probation for 18 months from July 2009 in respect of charges of theft by shoplifting, assault and breach of the peace, whilst on bail. She was regarded as not suitable for a DTTO, having walked out on her medical assessment. Prior to her period of probation she had been the subject of a supervision order with a requirement of residence in a secure unit from September 2007 to March 2008. This was as a result of alcohol misuse, escalating offending and involvement with older males. She had become addicted to heroin, although she attempted to stabilise herself on a methadone programme in March 2010. However, she missed probation appointments and resumed heroin use.

[4] Against the whole of that background, the Sheriff, not surprisingly, determined that only a custodial sentence was appropriate. No issue is taken with that decision. He revoked the probation order accordingly. He took into account certain periods of remand in November 2009 and January 2010, applied generous discounts for pleas of guilty in all but one of the complaints and, in respect of the complaints, sentenced the appellant to the following totals in respect of each complaint: on complaints 1, 3, 4, 5 and 6 to 3 months detention, 1 month being attributable to the bail aggravation; on each of complaints 2 and 7 to 1 month; on complaint 6 to 5 months; on complaint 8 to 4 months; and on complaint 9 to 2 months. The practical effect of all this was a total sentence of 25 months running from 23 August 2010.

[5] Although certain criticisms were made about making the various sentences within each complaint consecutive, that is not a ground of appeal and the court makes no comment on it. The main submission, which the court considers does have force, is that the cumulative effect of the sentences at 25 months was excessive, having regard to the relative minor nature of the offending, albeit repetitive. The court agrees with the submission and will reduce the overall effect of the sentence to one of 18 months. It will do that, in a practical manner, by making the sentences on complaints 1, 2 and 3 concurrent. The total for these complaints will be 3 instead of 7 months. It will do the same in respect of complaints 5 and 7, resulting in a sentence of 3 instead of 4 months. It will make the sentences on complaints 8 and 9 also concurrent, creating a sentence of 4 rather than 6 months.

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