A sheriff’s failure to set out why he considered that no disposal other than a short custodial sentence was appropriate despite the statutory presumption against such sentences, did not invalidate the sentence imposed, the Sheriff Appeal Court has ruled.
Sheriff Principal Mhairi Stephen and Appeal Sheriff Thomas McCartney gave the decision in refusing an appeal by Timothy Humphreys against a cumulo sentence of six months’ imprisonment (discounted from nine months) for driving an articulated lorry dangerously and with a breath alcohol count of 98, the offences having been committed while he was on bail. His record included an analogous drink driving offence in 2010 and a custodial sentence for burglary in 1982.
For the appellant it was argued that the sheriff had not stated in sufficiently clear and informative terms why no disposal other than a short custodial sentence was appropriate, nor had he recorded his reasons for passing a custodial sentence of short duration in the minute or record as required by the Criminal Procedure (Scotland) Act 1995, s 204(3A) and (3B). This vitiated the sentence. The gravity of the offending and sentencing objectives could have been met by “a tough community based disposal”.
Giving an extempore opinion of the court, Sheriff Principal Stephen said the drink driving offence was “eloquent of a high degree of negligence and culpability”. The absence of any accident was fortuitous. The sheriff had stated that a custodial sentence was required to mark the court’s disapproval, deter others from such behaviour and punish the appellant for his dangerous and irresponsible actions; and the sheriff was entitled to take an approach based on punishment and deterrence.
Although s 204(3B) required the court to comply with certain procedural requirements, there was “no absolute rule as to the effect of failure to comply with these requirements”. There was no indication that it would invalidate the sentence; the policy memorandum stated that judicial discretion “remains intact”, and there would be “significant public concern” if serious offenders could escape a custodial sentence for entirely technical reasons. The court followed and applied Heywood v SJSB 1994 SCCR 554 and R v Soneji  1 AC 340. The accused’s remedy was to exercise the right of appeal.
The existence of the requirement did not mean it was never appropriate to impose a custodial sentence of 12 months or less; rather that such a sentence required to be justified on the facts and circumstances of the case. Here, if the reason for imposing a short custodial term was not minuted nor specifically and separately addressed, “it was hiding in plain sight”.
The sheriff principal concluded: “Nonetheless, it is important that when the clerk in a summary criminal court minutes a custodial disposal brief reasons must be given for a sentence of 12 months or less (and indeed for a first prison sentence). Section 204(3A) certainly does not prohibit a court from imposing a custodial sentence on summary complaint even where there is no aggravation libelled. The imposition of such a sentence requires to be justified by reference to the facts and circumstances of the case.”