Lord Mackay of Drumadoon

Appellant: Collins, Solicitor Advocate; Raymond McIlwham, Glasgow

Respondent: McKenna, A.D.; Crown Agent

28 October 2010

[1] Leave was granted for this appeal to proceed on two grounds; firstly that the starting point of 12 months, which had been selected by the sheriff for the sentence on charge 1, the charge of theft by housebreaking, had been too high, given the period since the appellant had last offended; and secondly that a consecutive sentence of 3 months imprisonment on charge 3, the contravention of section 2 of the Road Traffic Act 1998, was excessive, notwithstanding an acceptance that the dangerous driving involved in that charge had been at the higher end of the summary scale.

[2] In the event the argument advanced before us today, as indeed was focused in the written submission helpfully lodged before the hearing began, focused primarily upon what the sheriff said in paragraph 13 of his report to this court, when he stated that "the housebreaking offence was also aggravated by the appellant's dangerous driving thereafter in an attempt to escape the police". That passage opened up an argument which had not of course been anticipated when the grounds of appeal were lodged, namely that there had been an element of "double counting". It was argued that in selecting the sentence for the housebreaking offence the sheriff had treated the offence as having been aggravated by the subsequent dangerous driving and had increased the sentence accordingly, notwithstanding the fact that when the sheriff came to sentence the appellant on the charge of dangerous driving, charge 3, he had treated that as a separate offence warranting a sentence of 3 months imprisonment to run consecutively to the sentence on charge 1.

[3] It is quite clear that the housebreaking in this case was a serious offence. It was an offence which had been planned by the appellant and the person who accompanied him. It involved their driving from Glasgow to premises which they had been advised about and in the appellant's case it was aggravated by the fact that he was on bail at the time. The sheriff was obviously entitled therefore to take a serious view of that charge, notwithstanding the period of time that had elapsed since the appellant's last conviction. Giving the matter as careful consideration as we can, we cannot exclude the possibility that when he selected a starting point of 12 months for the sentence on charge 1 the sheriff allowed his thinking to be affected to some extent by the fact that following the commission of the theft by housebreaking the appellant had engaged in dangerous driving. However, if the sheriff did so, the impact on his assessment of the gravity of charge 1 in our opinion could only have been minimal. [4] In these circumstances, what we propose to do is to allow the appeal in relation to the sentence on charge 1 and to reduce the sentence of 8 months to one of 7 months, which involves our reducing the starting point for the sentence from one of 12 months to 11 months. We are not persuaded there should be any change in the sentence on charge 3. The dangerous driving involved was serious and warranted a sentence separate from and consecutive to the sentence on charge 1. It will remain as one of 3 months to run consecutively to the sentence on charge 1.