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Scottish High Court of Justiciary Decisons


You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Bennett v. Her Majesty's Advocate [2006] ScotHC HCJAC_3 (15 December 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_3.html
Cite as: [2006] ScotHC HCJAC_03, 2006 SCCR 62, 2006 GWD 9-172, [2006] ScotHC HCJAC_3, [2006] HCJAC 3, [2006] HCJAC 03

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Osborne

Lord Johnston

Lord Carloway

 

 

 

 

 

 

 

 

 

 

 

[2006HCJAC3]

Appeal No: XC169/05

 

OPINION OF THE COURT

 

delivered by LORD OSBORNE

 

in

 

APPEAL AGAINST SENTENCE

 

by

 

WILLIAM BENNETT

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

 

Appellant: MacLeod, Q.C.; Jim Friel & Co.

Respondent: Turnbull, Q.C., A.D.; Crown Agent

 

15 December 2005

 

The background

[1] The appellant, along with five other persons, Muir MacLeod, Lee Warren Burgun, Charles Blades, James McInally and Lewis Rodden, were indicted together in an indictment which contained three charges. Charge (1) affected all six accused persons; charge (2), brought under section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 and alleging having in a public place an offensive weapon, namely a sword, was brought against Lewis Rodden alone. Charge (3), also brought under the same section of the same act, alleging having in a public place offensive weapons, namely a baseball bat, two hammers, a socket extension bar and a wrench, was brought against Muir MacLeod alone.

[2] Charge (1) in the indictment took the form of an allegation that, between 1 November 2002 and 30 November 2003, at a number of places the accused persons had conspired with each other and with others to extort money and compel persons to enter into contracts with West Coast Group and WCG (Scotland) Limited for the provision of security and protection services at construction sites, building sites and business premises in Ayrshire and to take over existing contracts for the provision of security and protection services at construction sites, building sites and other premises in Ayrshire from other persons, by criminal means, namely threats, menaces, assaults, malicious damage to property, and wilful fireraising and in furtherance of said conspiracy had done a wide range of acts specified. It is fair to say that the catalogue of acts alleged to have been committed in pursuance of the conspiracy was of a very serious nature.

[3] On 27 January 2005 the appellant appeared at the High Court in Kilmarnock, along with the five other accused, when he pled guilty to certain parts of charge (1). Those parts were:

"(1)(o)(ii) On 15 September 2003 attend at the construction site of Alexander

Morton Homes at South Crescent Road, Ardrossan, conduct yourselves in a disorderly manner, shout, swear, utter threats to Gordon Wylie, care of Strathclyde Police, Helen Street, Govan, an employee of Guardwise Security and place the lieges and said Gordon Wylie in a state of fear and alarm;

(iii) On 15 September 2003 at a car park situated at Arran Place,

Ardrossan, assault Gordon Wylie, care of Strathclyde Police, Helen Street, Govan, slap him on the head and kick him on the body to his injury;".

[4] The appellant's pleas of not guilty to the remaining parts of charge (1) were accepted by the Advocate depute. In moving for sentence, the Advocate depute tendered to the sentencing judge a schedule of previous convictions in relation to the appellant, which disclosed that he had five previous convictions. One of these was in the High Court at Aberdeen on 29 June 1979 when he was convicted of assault to severe injury and permanent disfigurement and sentenced to detention for a period of 6 years. Another in Glasgow Sheriff Court, under solemn procedure, dated 6 December 1993 was a conviction under section 21(1) and (4) of the Firearms Act 1968, in respect of which he received a sentence of imprisonment for 1 year. The sentencing judge was informed that the appellant had appeared on petition in connection with the present matter on 16 September 2003 and had been admitted to bail. He had appeared on a second petition on 15 December 2003 and had again been admitted to bail. He had been indicted for trial on 30 August 2004, but the trial had been adjourned to Kilmarnock High Court on 18 October 2004. On 15 October 2004, the trial had been postponed to 22 November 2004 at Kilmarnock High Court. On 24 November 2004, the trial was further adjourned to the sitting at Kilmarnock commencing 10 January 2005.

[5] It was explained to the sentencing judge by the Advocate depute that the background to the offences was intense rivalry between companies seeking to provide security services to the building and construction industry and to other business in the west of Scotland. The appellant and each of his co-accused had been employed by or associated with a company called West Coast Group, a security company based in St. Cuthbert's Business Centre, Maybole. It was a division of West Coast Group (Scotland) Limited, which had its headquarters in Kirkintilloch.

[6] Charge (1)(o)(ii) and (iii) had occurred on 15 September 2003. Alexander Morton Homes (Scotland) Limited was a small company run by James and Alexander Benson, who were brothers. In September 2003, the company had been involved in two developments in Ardrossan. On one site the company had been constructing detached dwellinghouses, whereas at another site it had been renovating the former Ingledean Hotel in Ardrossan. Security for both sites had been provided by Guardwise Security and the employee of Guardwise Security who was responsible for supervising the security arrangements at both sites, was Gordon Wylie. Since February 2002, the Benson brothers had been obtaining security services from different companies, but security had always been under the management of Mr. Wylie. They had always used the company for which he had been working, because they had confidence in him. Early in August 2003 each of the Benson brothers had received "cold calls" from representatives of West Coast Group, asking about the security arrangements for Alexander Morton Homes (Scotland) Limited and enquiring if any work was available. The Benson brothers had replied to the effect that they had satisfactory arrangements in place for security. Representatives of West Coast Group had called at the site on three separate occasions, namely 13 August, 8 September and 11 September 2003, and on each occasion a sales pitch had been put to the Benson brothers. On each occasion, the Benson brothers had fobbed them off by saying that the existing arrangements were "all right". However, they had indicated that there might be something in the future which West Coast Group could do and they had promised to bring up the West Coast Group offer at a forthcoming board meeting, although, in fact, this was never done. James Benson had become concerned about the possibility of potential difficulties arising between different security companies and although, by that time, there had only been sales pitches, he contacted the police. An arrangement was made that the police would fit an alarm system at the site operated by Alexander Morton Homes (Scotland) Limited at South Crescent Road, Ardrossan. This site was the site of the former Ingledean Hotel. The alarm system would have enabled the police to be summoned in the event of any difficulties.

[7] On 15 September 2003, CID officers came on-site to conduct a test of the system just mentioned with the assistance of James Benson. The police officers got into an unmarked police vehicle and drove away from the site for the purposes of conducting the test. At that stage, two Mercedes vehicles arrived on the construction site. The first was a dark coloured Mercedes saloon, driven by the co-accused Muir MacLeod and occupied by Lee Burgun and another man. The second vehicle was a Mercedes 4-wheel drive, driven by the co-accused Lewis Rodden, in which the appellant and James McInally were passengers. At almost the same time as their arrival, Gordon Wylie walked onto the site with Alexander Benson. As they did so, all six occupants of the vehicles alighted. Voices were raised and abusive shouts were directed at Gordon Wylie by the group of men. Amidst the shouting and swearing, Mr. Wylie and Mr. Benson realised that an accusation was being made that Mr. Wylie, or someone from his company, had damaged a vehicle on a site guarded by West Coast Group. This had been denied strenuously by Mr. Wylie at the time and was still denied by him. Mr. Benson was concerned at the scene and had said that he wanted everyone off the site. Mr. Wylie indicated that he would leave the site and discuss matters with the men from West Coast Group. He had been embarrassed at the disturbance in front of his employers. He had driven off in his van, but one of the six men had got into the van with him. The other five had followed the van in the two vehicles. Mr. Wylie had been becoming concerned for his safety at this time and drove to a car park in Arran Place, Ardrossan. This was an open space close to the sea front. The two police officers in the unmarked police vehicle had observed the convoy driving away from the site. They had been suspicious and had decided to follow the vehicles. They had summoned assistance from another unmarked police vehicle in the area and had been joined by it. They had followed the convoy to the car park at Arran Place. At the car park, the two Mercedes vehicles parked close to the van and everybody, including Mr. Wylie, got out of the vehicles. When he had got out of his van, he had been standing with his back to one of the Mercedes vehicles. He had been surrounded by all six men who had been shouting at him. He had become apprehensive that violence would follow. While he had been standing there, James McInally had stepped in front of him and slapped him on the mouth and had thereafter kicked him on the left shin. McInally had been wearing workman's boots which had steel toe caps. Mr. Wylie had taken a conscious decision not to retaliate in case something worse happened. At that stage, the two police vehicles had driven up and stopped at the Mercedes vehicles and Mr. Wylie's van. The police officers had witnessed the assault. It was clear that Mr. Wylie was bleeding from an injury to his left shin. The officers had detained all of the six men and had attempted to provide first aid for Mr. Wylie.

[8] Mr. Wylie had been taken to the accident and emergency department at Cross House Hospital, where he had required six stitches to his left shin. All of the men from the Mercedes vehicles, including the appellant, had been conveyed to Saltcoates Police Station. The Mercedes vehicles had also been taken there and searched by police officers. On the rear seat of the 4-x-4 vehicle driven by Lewis Rodden, the officers had seen a sword lying in plain view. They had taken possession of it. The sword was an ornamental sword of a kind described as a samurai sword. In the boot of the Mercedes saloon driven by Muir MacLeod, police had recovered a baseball bat. At a subsequent interview with police officers, the appellant had stated that he was the Area Manager for West Coast Group.

[9] On 27 January 2005, the sentencing judge deferred sentence until 18 February 2005, for the purpose of obtaining a social enquiry report. The appellant was remanded in custody. On this latter date, the Advocate depute addressed the sentencing judge further, because counsel for the co-accused, Muir MacLeod, had taken issue with some of his narrative and, otherwise, it might have been necessary to have had a proof in mitigation. Further enquiries had been made since the previous hearing and the Advocate depute had provided a more detailed account of what had occurred on 15 September 2003 in relation to charge (1)(o)(ii) and (iii). The Advocate depute stated that, although the last visit to the site had been on 11 September 2003, there had been a further contact by telephone some days before 15 September 2003, asking the Benson brothers for business. The Benson brothers had expected someone from West Coast Group to call again at the site on 15 September, but precise details were not clear. Nevertheless, West Coast Group had not been hired by Alexander Morton Homes (Scotland) Limited. Accordingly, on 14 September, on of the Benson brothers had contacted Mr. Wylie and asked if he could be on the site on 15 September 2003. The purpose of this was to enable the Benson brothers to discuss the general arrangements with Mr. Wylie, but also to show West Coast Group that they already had security. On 15 September 2003 six individuals from West Coast Group had appeared in the two vehicles and had immediately begun shouting and making allegations about Mr. Wylie. James Benson had accepted that he wanted everybody off the site and said words to the effect of "Would you go off and sort this out between you". The reason for his doing so was that, having heard the accusations being made against Mr Wylie, he wanted everybody to leave his site and have their row somewhere else. The Benson brothers had confirmed that at no time were West Coast Group promised the security contract for Ingledean Hotel and at no time were they hired to guard that site. Equally, as new sites became available, the Benson brothers looked at the security requirements and, although Mr. Wylie had always been responsible for such requirements in the past, it would not automatically have followed that he would have been responsible for all future sites. Subsequently, security for their sites, including Ingledean, was transferred to another company unconnected with Mr. Wylie or the West Coast Group. One reason for that was the trouble which had occurred on 15 September 2003.

[10] The sentencing judge explains in his report that, in mitigation he had been referred to the social enquiry report and reminded that the appellant was a 45 year old man, married with three children. Although he had the criminal record already described, it had been contended that he appeared to have reformed since the time of his convictions. He had worked in various employments and, in January 2002, had been employed as an Area Manager in the Glasgow area for West Coast Group (Scotland) Limited. His excursion out of Glasgow in September 2003 had been unusual. He had been going to Ayrshire to assess damage caused at a site. He had been told to do that by a Mr. McCabe, who had formed and was a Director of the company. He had been under the impression that he and the co-accused Rodden were to assess a new site. They had travelled in Rodden's car. When they had arrived at the site, Gordon Wylie had been surprised to see the appellant and, according to the appellant, had started shouting and swearing. The appellant had pled guilty on an art and part basis to being part of an intimidating crowd involved in a breach of the peace at the site and thereafter in the assault upon Mr. Wylie. The attack had been spontaneous.

[11] The sentencing judge narrates that it appeared to him that the appellant had been involved in a breach of the peace and an act of violence, committed in an attempt to persuade a company to alter its security arrangements by using a particular firm. In his view, this could only be considered as an aggravated crime. In sentencing the appellant he acknowledged that he had to do so on the basis of the much reduced charge to which he had pled guilty. Nevertheless, he considered that he had been entitled to take into account the background of rivalry between security companies in the west of Scotland. He also considered it relevant that the appellant had been the Area Manager and, as such, the most senior employee, along with the co-accused Rodden, who held a similar position, who was present at the incident. The sentencing judge states that the appellant could have exercised his authority to prevent the commission of the crimes. Instead he had accepted responsibility for being involved in the breach of the peace and the assault upon a representative of a competitor.

[12] The sentencing judge explains that, having regard to the appellant's previous convictions for violence, particularly his conviction in 1979 in Aberdeen High Court, his subsequent conviction for two charges of assault and two charges of breach of the peace in 1989 and his conviction under the Firearms Act in 1993, as well as the position which he held in the company and the background of rivalry between various security firms, he considered that the appropriate sentence would have been 5 years imprisonment, but it was restricted to one of 4 years to reflect the plea of guilty. The sentence was backdated to commence on 27 January 2005.

 

The submissions

[13] Senior counsel for the appellant drew to our attention that the present appeal was associated with a number of other appeals arising out of the sentencing judge's decisions in relation to co-accused. He emphasised the limited extent to which the appellant had pled guilty to certain parts of charge (1). He emphasised that no weapon of any kind had been involved, so far as the appellant was concerned. It was submitted that the sentencing judge had lost sight of the limited nature of the offences in which the appellant had been involved. The assault, of which the appellant was guilty upon an art and part basis only had been a spontaneous reaction on the part of the actor to a heated situation. There had been no premeditation. That was demonstrated by the fact that the locus of the assault was an open public place. The injury suffered by the complainer had not been severe, although, no doubt, it had been painful.

[14] Senior counsel drew our attention to the terms of the social enquiry report relating to the appellant. His attitude to the offences committed was disclosed there. It was evident from that report that the appellant was remorseful about his involvement in this matter. The appellant was a family man who was concerned for the welfare of his wife and children. Senior counsel submitted references concerning the appellant from former employers of the appellant, which were complimentary. The social enquiry report contained a risk assessment which indicated that the appellant was at a low to medium risk of re-offending in the near future. While it had to be accepted that the appellant had certain serious previous convictions, it was evident from the records relating to them that his offending was confined to the quite distant past. The appellant had offered to plead guilty in the terms which were subsequently accepted at an early stage in November 2004. However, the Crown had not been in a position to accept the plea then, on account of the involvement of other accused persons. Senior counsel reminded us of the decision which we had already taken in the appeal at the instance of Lee Burgun, who had also been sentenced to 4 years imprisonment. The court had reduced that sentence to one of 2 years imprisonment. It was pointed out that Mr. Burgun had had no criminal record but his offending conduct had been more extensive than that of the appellant. He had offended after 15 September 2003. In all these circumstances, it was submitted that the sentence imposed on the appellant was excessive.

 

Decision

[15] In the light of the submissions made to us, we have reached the conclusion that the sentencing judge lost sight of the limited extent of those parts of charge (1) to which the appellant pled guilty. It is evident from the remarks of the sentencing judge which preceded the imposition of his sentence on the appellant that he took into account a range of matters which appear to us to be irrelevant to the decision which he had to make. He expatiated upon the evils of aggressive competition between providers of security in other parts of the United Kingdom and the United States, which appear to us to have nothing whatsoever to do with the position of the appellant. In any event, he was not addressed by the Crown or counsel for the appellant on such alleged evils. While the background to the appellant's offences, which we have described, must plainly be taken into account in any decision as to an appropriate sentence in his case, we consider that the sentencing judge went far beyond that. Furthermore, for reasons which we do not understand, he entered upon a consideration of the completely hypothetical issue of what sentence might have been appropriate if the conspiracy charge, or a significant number of incidents specified in that charge, had been established. Conspiracy was not established, nor were what the sentencing judge calls a significant number of the incidents specified in it. In our view the sentencing judge appears to have distracted himself by consideration of this hypothetical matter from a proper consideration of the appropriate sentence in the case of the offences to which the appellant had pled guilty.

[16] In these circumstances we have come to the conclusion that the sentencing judge's exercise of his discretion in the case of the appellant's sentence was flawed and that that sentence is now a matter at large for the exercise of our discretion. Having regard to the whole circumstances of the appellant himself and the limited involvement which he had in the matters averred in charge (1), we have come to the conclusion that an appropriate starting point in his case would be one of 3 years imprisonment. Having regard to the early stage at which the appellant offered to plead guilty in the terms that were ultimately accepted, we consider that a discount of one third would be appropriate. Accordingly, we shall quash the sentence imposed and substitute for it a sentence of 2 years imprisonment to run from 27 January 2005. In our view, such a disposal would be consistent with the approach which we took in the appeal of Lee Burgun. While the present appellant has serious previous convictions and the appellant Lee Burgun did not, the most recent of the appellant's previous convictions is dated 6 December 1993. It is evident from that that his offending, apart from the present matter, has been very much in the past. Having regard to that and to the fact that Lee Burgun pled guilty to offences more extensive than those in which the present appellant was involved, we think it appropriate that the same sentence should be imposed in each case.


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