Summary of Opinion — Appeal Court, High Court of Justiciary [2025] HCJAC 52

Factual and Procedural Background

This opinion concerns an appeal by the Appellant against the non-custodial sentence imposed on the Respondent following convictions at a second trial diet on 16 June 2025. The Respondent pleaded guilty to an indictment alleging two offences: (Charge 3) threatening or abusive behaviour, including entering the complainer's home without consent and causing damage to a laptop on 15 April 2024, committed while on bail; and (Charge 5) forcible entry to the same address on 10 November 2024, followed by a sustained assault involving strangulation, threats to kill, theft-related conduct and other violent acts, also committed while on bail.

On 21 July 2025 the sentencing sheriff imposed an 8-month Restriction of Liberty Order (ROLO) and a Community Payback Order (CPO) with an 18-month supervision requirement. The Lord Advocate appealed those components of the disposal as unduly lenient; a non-harassment order imposed at sentence was not challenged. The Respondent admitted breaches of the ROLO in August 2025 and remained in custody on separate charges by mid-August 2025. The appeal was heard by a three-judge bench, and the opinion was delivered by Judge Matthews.

Legal Issues Presented

1. Whether the sentencing sheriff misapplied the Principles and Purposes of Sentencing by giving excessive weight to the Respondent's personal mitigation and rehabilitation, resulting in a sentence that was unduly lenient.
2. Whether the sentence imposed (an 8-month ROLO and an 18-month CPO with supervision) fell outside the range which the sentencing judge could reasonably have considered appropriate, such that the appellate court should quash it and substitute a custodial sentence.
3. If the sentence is unduly lenient, what custodial sentence and ancillary orders should be substituted to reflect culpability, aggravations (including offending while on bail and repeated strangulation), mitigation, and public protection needs.

Arguments of the Parties

Appellant's Arguments

• The sheriff underweighted key aggravating features: force used to enter the complainer's home, the sustained and repeated assault, strangulation, the humiliating acts (pouring cola), repeated threats to kill, and the fact the offences formed part of a course of conduct.
• The sheriff wrongly treated voluntary intoxication as a mitigating factor.
• The sheriff attached excessive weight to rehabilitation and the Respondent's personal mitigation (trauma and mental health), despite a history of breaching community supervision and the Respondent committing the more serious offence while on bail for the earlier offence.
• Because of these errors the overall disposal fell outside the range of sentences a reasonable sentencing judge could have considered appropriate (relying on the test in HM Advocate v Bell), amounting to a miscarriage of justice; the Appellant invited substitution of a custodial sentence.

Respondent's Arguments

• Acknowledged the seriousness of the offences, particularly Charge 5, but submitted the sheriff provided cogent reasons for a non-custodial disposal despite the custody threshold being met.
• Emphasised the actual physical injuries were relatively minor, the Respondent's engagement with the CPO and treatment, and her acceptance of responsibility.
• Argued the Respondent's substance misuse and intoxication were manifestations of significant trauma and mental-health difficulties, and these personal circumstances were rightly given weight by the sheriff; the sentence, while perhaps lenient, was not unduly so.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by restating the applicable appellate principle from HM Advocate v Bell: appellate intervention is permitted only where a sentence is unduly lenient, meaning it falls outside the reasonable range available to the sentencing judge. The court recognised the gravity of the Respondent's personal history and the mitigation it provided, and accepted the sentencing sheriff had correctly identified that the offences met the custody threshold.

The court then analysed aggravating and mitigating factors as found by the sheriff and advanced by the parties. It emphasised that Charge 3, while less serious, formed part of a course of conduct relevant to Charge 5 and that the commission of Charge 5 while on bail for Charge 3 was an aggravation beyond the generic bail aggravation. The court accepted the sheriff was correct to note the potential for far more serious harm, particularly given the repeated strangulation in Charge 5.

However, the court determined that the sheriff placed excessive weight on the Respondent's personal mitigation — her traumatic background, mental-health diagnoses, substance misuse and apparent engagement with supervision — and insufficient weight on the high culpability of the offences, the sustained nature of the attack, the risk to life from repeated strangulation, and the course-of-conduct/bail aggravations. The court also noted the significance of the Respondent's prompt breach of the ROLO, which, while not dispositive, was relevant in hindsight to the assessment of risk and the weight to be given to rehabilitation.

Applying the Bell test, the court concluded the sentence imposed fell outside the range of sentences which the sentencing judge could reasonably have considered appropriate because of the balance the sheriff struck between mitigation and aggravation. Accordingly, appellate substitution was justified.

Holding and Implications

Holding: The appeal was allowed to the extent that the sentence imposed by the sheriff was quashed and substituted. The court substituted a sentence of imprisonment for 3 years and 8 months (reduced from 4 years to reflect the timing of the guilty plea at a second trial diet), of which 4 months were attributable to breaches of bail. The court further ordered a Supervised Release Order for 12 months with a special condition requiring the Respondent to attend drug and alcohol counselling as directed by the supervising officer. The appeal was allowed "to that extent."

Implications: The direct effect is that the Respondent's non-custodial ROLO and CPO were replaced by a custodial sentence and subsequent supervised release with a treatment requirement. The court emphasised that its decision did not establish a new legal principle; it applied established appellate standards (HM Advocate v Bell) to the facts and concluded the sentencing balance reached by the sentencing judge was outside the reasonable range. No broader precedent beyond that application was pronounced.

Panel and representation (anonymized): The court was constituted by Judge [Last Name], Judge Matthews and Judge Armstrong. The Appellant was represented by Attorney Dickson; the Respondent was represented by Attorney Brannigan.