APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lord Bonomy	[2012] HCJAC 82 XJ91/12 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in NOTE OF APPEAL AGAINST SENTENCE by SHAWN ERNEST DIVIN Appellant; against PROCURATOR FISCAL, DUNDEE Respondent: _______

Appellant: McKenzie; Drummond Miller

Respondent: Hughes AD; Crown Agent

1 June 2012

Introduction

[1] The appellant was born on 17 March 1995. He was charged on a summary complaint in Dundee Sheriff Court with charges of breach of the peace and contravening section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. On 27 August 2010, the appellant tendered pleas of not guilty to both charges and a diet of trial was fixed. At a continued intermediate diet on 24 November 2010, the appellant pled guilty to both charges. Sentencing of the appellant on those charges did not take place until 5 May 2011. That delay occurred because several months elapsed before other of his five co-accused pled guilty.

[2] The offences were committed on 26 May 2010. The appellant was one of a gang of 20 to 30 youths, who attacked a bus in Dundee. One of the assailants immobilised the bus, by opening its engine cover and pulling the emergency fuel gauge. The gang then threw large stones at the bus, shattering windows and showering passengers with glass. The appellant was fully involved in the attack. He entered the bus through the rear emergency door, brandishing a metal pole.

[3] The sheriff who originally dealt with the case sought a Criminal Justice Social Work Report and the advice of the Children's Hearing. The Children's Hearing advised that the sheriff should use the disposals available to him, when he dealt with the appellant. The Children's Hearing observed that the appellant displayed a lack of remorse regarding his involvement in this case and his own ongoing involvement in violent behaviour.

Probation order imposed by sheriff

[4] On 5 May 2011, the sheriff made a probation order of 12 months duration in respect of the appellant. In addition to the standard conditions, the sheriff imposed a condition that the appellant be subject to electronic monitoring over a period of 5 months, requiring the appellant to remain in his home between the hours of 7pm and 7am.

[5] The sentencing sheriff held the first probation progress review on 8 June 2011. A further probation progress hearing took place on 4 August 2011, when the sheriff allowed the order to continue, despite the terms of the progress report that was before the court. That report disclosed a failure on the part of the appellant to attend appointments with his supervising officer, that the appellant had interfered with the electronic monitoring equipment, and that he had been charged with assaulting his grandparents, following an altercation at the family home on 28 May 2011.

Breach of probation

[6] On 23 August 2011 the sentencing sheriff received a breach report relating to the probation order imposed on 5 May 2011. The breach was founded on the appellant having pled guilty on 21 July 2011 to three charges, including two of assault, arising out of the incident involving his grandparents; and six infringements of the electronic monitoring condition between 1 July 2011 and 19 July 2011. The breach report also reported that on 11 August 2011 the appellant had been remanded in custody, following his appearance at Dundee Sheriff Court facing further charges. On receipt of the breach report, a warrant was issued for the appellant's apprehension. On 28 September 2011 the appellant appeared again in Dundee Sheriff Court and admitted the breach of probation.

[7] On 12 December 2011, another sheriff sentenced the appellant in respect of a serious charge of breach of the peace. That charge arose out of the appellant's use of Facebook to incite members of the public to take part in a riot within the City of Dundee. A sentence of 3 years 3 months detention was imposed. That sheriff then set aside the probation order made in respect of the appellant on 5 May 2011 and imposed, in its place, a sentence of 12 months detention in respect of the two charges on the original complaint. She ordered that the 12 months sentence should run consecutively to the sentence of 3 years 3 months detention. It is against the sentence of 12 months detention that this appeal is directed.

Submissions on behalf of the appellant

[8] It was argued on behalf of the appellant that the sheriff had erred in imposing the maximum sentence that had been competent on the summary complaint the appellant had faced. It was accepted that following the breach of probation the imposition of a custodial sentence was inevitable. That was because the appellant was now serving the sentence of 3 years 3 months detention. It was also accepted that any custodial sentence on the original complaint would require to run consecutively to the longer sentence.

[9] It was submitted that the sentence of 12 months detention had been excessive. The appellant was 15 years of age when the offences were committed. He had experienced a troubled upbringing, as was clear from the Criminal Justice Social Work Reports. He had pled guilty, at an intermediate diet, to the two charges that had given rise to the probation order. The sheriff had accordingly erred in concluding that the utilitarian value of the appellant's plea of guilty to the two charges on the complaint had been completely negated by his subsequent behaviour (see Gemmell and Others 2011 HCJAC 129, para.[52]). Furthermore the appellant had been subject to electronic monitoring between 5 May 2011 and 25 July 2011. That had constituted an element of punishment, which he had served.

Discussion

[10] The charges that led to the imposition of the probation order on the appellant were serious charges. As the sheriff correctly observed, had the appellant been an adult offender, there is little doubt that the charges would have been prosecuted on indictment and attracted a significant custodial sentence. It is perfectly clear from the papers relating to the probation progress hearings that the appellant failed to co-operate with the supervising officer and those responsible for the electronic monitoring. Furthermore, the assaults on his grandparents and the appellant's involvement in the serious breach of the peace that gave rise to the sentence of detention of 3 years 3 months constituted further serious breaches of that probation order.

[11] We are quite satisfied that since the probation order was imposed, the utilitarian value of the appellant's plea of guilty has been substantially negated by the appellant's conduct. When the appellant was made the subject of the probation order, he will have been advised that he required to co-operate with his supervising officer. He will also have been advised that he required to be of good behaviour. It is clear that the appellant paid little attention to the conditions of the probation order. He failed to co-operate with the supervising officer. He interfered with the monitoring equipment and ignored the monitoring regime. He also committed further offences. Not only has he frustrated the purposes of imposing the probation order, further court proceedings have been necessary as a consequence. In all these circumstances we are not persuaded that the sheriff erred by imposing a sentence of 12 months detention. In particular, we are not persuaded that the sentence should be reduced on account of the very limited extent the appellant complied with the electronic monitoring condition. For these reasons, the appeal is refused.