Crown appeal against sentence by HMA against David Docherty (High Court of Justiciary)

Factual and Procedural Background

This opinion concerns a Crown appeal against a sentence imposed by the High Court in Glasgow for various firearms offences and an attempt to pervert the course of justice. The Respondent was indicted on eighteen charges, of which fourteen were withdrawn at the close of the Crown case. The Respondent was convicted on four charges: (1) culpable and reckless conduct by discharging a loaded shotgun at a residential property, (2) possession of a shotgun without a licence during the same events, (3) possession of a firearm or imitation firearm with intent to cause a police officer to believe unlawful violence would be used against him, and (4) attempt to pervert the course of justice by concealing or destroying evidence related to the vehicle involved in the third charge.

The Respondent was sentenced on 19 April 2024 to a total of 40 months imprisonment, composed of 12 months for charge 1, 9 months concurrent for charge 2, 24 months consecutive for charge 17, and 4 months consecutive for charge 18. The sentences were ordered to commence after any current custodial sentence being served by the Respondent.

The underlying facts include the discharge of a shotgun through a living room window of a residential property on 28 July 2020, without a shotgun certificate, causing property damage but no physical injury as the occupant was absent. On 24 April 2021, the Respondent was involved in an incident where a firearm or imitation firearm was presented to a police officer during a vehicle stop, followed by the destruction of the involved vehicle by fire, with evidence suggesting the Respondent was responsible.

Legal Issues Presented

1. Whether the sentence imposed by the High Court was unduly lenient.
2. Whether the sentencing judge properly assessed the seriousness of the offences and the applicable sentencing purposes.
3. Whether the sentencing judge correctly applied sentencing guidelines and principles, including the calculation of time spent on remand.
4. Whether the sentencing approach, including the order and concurrency/consecutiveness of sentences and the use of a cumulo sentence, was appropriate.

Arguments of the Parties

Appellant's Arguments

• The sentence was unduly lenient and failed to achieve the purposes of sentencing, namely protection of the public, punishment, and denunciation of offending behaviour.
• The sentencing judge underestimated the seriousness of the offences, especially charges 1 and 17, which involved planning, premeditation, and a high degree of recklessness.
• The potential harm from charge 1 was significant, with a risk of death or serious injury, and the presentation of a firearm to a police officer caused alarm and distress.
• The destruction of evidence (charge 18) related to an extremely serious offence and was an aggravating factor.
• The headline sentence of six years was inadequate, with the judge placing undue weight on the Respondent’s existing custodial sentence and failing to consider relevant sentencing guidelines from England & Wales.
• The sentencing judge failed to properly consider aggravating factors such as the Respondent’s extensive criminal record and the victim being a police officer acting in the execution of duty.

Respondent's Arguments

• Senior counsel acknowledged the sentencing judge’s approach was unhelpful and flawed, describing it as “too much arithmetic and too little logic.”
• Conceded that the sentence for charge 1 was unduly lenient but did not concede on other charges without clarity on the judge’s reasoning.
• The correct approach should have involved determining individual sentences, deciding concurrency or consecutiveness, reflecting on totality, considering a cumulo sentence, and then accounting for time on remand, following established case law.

Table of Precedents Cited

Court's Reasoning and Analysis

The court determined that the sentencing judge underestimated the seriousness of the offences, particularly charges 1 and 17, both involving high culpability and potential or actual harm. The discharge of a loaded shotgun at a residential window was reckless and posed a grave risk of death or serious injury, irrespective of the occupant’s absence, which the judge wrongly considered as mitigating. The presentation of a firearm to a police officer was intended to intimidate and alarm, constituting an aggravating factor especially given the victim’s status.

The Respondent’s extensive and violent criminal history, including prior offences involving weapons and assault on police officers, further aggravated the seriousness of the offences and warranted greater punishment.

The court found the sentencing judge erred by focusing disproportionately on rehabilitation, which was deemed of limited relevance due to the Respondent’s age, persistent offending history, and failure to benefit from previous rehabilitative measures.

The sentencing judge’s failure to consider relevant English sentencing guidelines was a significant error. Although these guidelines must be applied cautiously given jurisdictional differences, they provide useful benchmarks. The court identified a “major disparity” between the sentences imposed and those suggested by the guidelines, particularly for charges 2 and 17.

The court also found error in the calculation of credit for time spent on remand, noting that the judge’s doubling of remand time did not align with current sentencing practices as explained in O'Doherty.

Regarding sentencing methodology, the court agreed with the Respondent’s counsel that the judge’s approach was flawed: the judge should have first determined appropriate individual sentences, considered concurrency or consecutiveness, reflected on totality and whether a cumulo sentence was appropriate, and only then accounted for remand time.

The court also considered whether an extended sentence was merited but concluded that the sentence it would impose would adequately protect the public without requiring a Criminal Justice Social Work Report.

Holding and Implications

The court held that the sentences imposed by the High Court were unduly lenient and that the matter required re-sentencing.

The court imposed revised sentences reflecting the seriousness of the offences and the Respondent’s criminal history: 5 years 6 months for charge 1; 4 years concurrent for charge 2; 4 years 6 months consecutive for charge 17; and 18 months consecutive for charge 18. The aggregate headline cumulo sentence was fixed at 10 years to ensure the sentence was fair, proportionate, and reflected the overall criminality, avoiding excessive totality.

The court adopted a pragmatic approach to the time spent on remand, applying concurrency with the existing sentence rather than backdating, to avoid nullifying the current custodial sentence.

There was no indication that this decision sets new precedent beyond reaffirming proper sentencing principles and the application of relevant guidelines and case law. The direct effect is the imposition of a substantially increased custodial sentence on the Respondent.