APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Osborne	[2011] HCJAC 123 XJ990/11 & XJ991/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by ROBBIE BATCHELOR Appellant; against PROCURATOR FISCAL, DUNDEE Respondent: _____________

Appellant: J. Stephenson, Solicitor Advocate; Flynn & Co, Dundee

Respondent: Rodger, AD; Crown Agent

24 November 2011

[1] On 7 September 2011, at Dundee Sheriff Court, the appellant was sentenced to a total of 14 months in respect of two complaints. Having pleaded not guilty and failed to appear at an intermediate diet in respect of the first complaint, he was arrested on 28 March 2010 and pled guilty to two charges. The first was essentially writing graffiti in a close in the city whilst subject to an Anti Social Behaviour Order and the second was a breach of that ASBO by having a can of spray paint with him. He was put on probation for a year, but breached that on two occasions. Eventually, on 7 September 2011, the sheriff revoked the order and imposed a period of 6 months detention. That sentence was made consecutive to the offences giving rise to the breach.

[2] On 10 August 2011, after several intermediate diets, the appellant pleaded guilty to six further charges of graffiti writing at various locations, including the walls of commercial premises, again while subject to an ASBO and on bail. He was also convicted of breaching the ASBO conditions. The total amount of damage in respect of the charges was £1,150. The appellant was sentenced to 8 months detention, which had been reduced from 12 months for the early plea.

[3] It is accepted that a custodial sentence was inevitable, but argued that the total sentence of 14 months was excessive, particularly having regard to the fact that this was the appellant's first custodial term. He does, however, have a history of graffiti writing, hence the ASBO. He is reported to be of some intelligence. Nevertheless, he has paid little attention to court orders.

[4] The court is satisfied that the sentence in respect of the original offences, following upon the breach of probation, was not excessive. However, the court does regard the starting point of 12 months in respect of the subsequent offences as excessive. It will reduce that period to one of 9 months, which will be reduced in respect of the plea to 6 months. The effect is that the total sentence is reduced from 14 months to 12 months.

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