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Procurator Fiscal, Hamilton v John Donnelly

The Sheriff Appeal Court in this case has imposed a community payback order in place of an admonishment, following a Crown appeal.
The respondent, John Donnelly, was convicted in February 2020 of assaulting his ex-wife. Following the two day trial, the summary Sheriff admonished Mr Donnelly and decided not to impose any kind of non-harassment order against him. The Crown appealed this on the basis that such a sentence was unduly lenient and that the ordering of a non-harassment order was appropriate. At sentencing, the Sheriff took the view that Mr Donnelly had lost his temper after being told that the complainer wanted a divorce.

However, it was later determined that the summary Sheriff has not seen a Criminal Justice and Social Work report that had been prepared. Despite this, the summary sheriff determined that as the respondent was a first-time offender and had been stressed whilst awaiting sentencing, that admonishment was the appropriate sentence.

The Crown submitted, as part of their appeal, that the sheriff had little to no knowledge of the actual facts surrounding the respondent’s relationship with the complainer, considering there had been police involvement prior to Mr Donnelly being prosecuted. This, along with the fact that offence was too lenient with regards to the fact that it had aggravated under section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, formed the basis of the Crown appeal.

The opinion of the Sheriff Appeal Court was delivered by Sheriff McFadyen. In delivering the opinion of the court, he concluded that: “This was a case where the sentencing sheriff was simply not in a position to pass sentence, having taken no steps to inform herself of the facts of the case”. It was also determined by the appeal court that as the summary sheriff was different from the trial sheriff, there should have been a greater effort made by the summary sheriff to “ascertain the facts”.

The court further decided that in light of this, that: “What happened in this case was unacceptable and seems to us to have been irregular, but the question for us is whether it resulted in an unduly lenient sentence on the one hand and an inappropriate decision not to impose a non-harassment order on the other.”

In addressing the leniency of the respondent’s sentence, the Appeal Court held that due to the domestic aggravation and due to the respondent’s clear anger issues which were “by no means at
the lowest end of the spectrum”, that a more demanding sentence would be more appropriate, in the form of a CPO.

Finally, in addressing the lack of a non-harassment order being made, the appeal court held that: “We consider that the sentencing summary sheriff has failed to justify her decision in this matter and, especially bearing in mind what is said in the criminal justice social work report about events since the offence and the business relationship between the respondent and complainer and what we are told about the complainer’s continuing attitude, an order should have been imposed.”

Accordingly, the court quashed the admonition and imposed a CPO of 160 hours of unpaid work, along with 18 months’ supervision. A non-harassment order relating to the respondent’s ex-wife is also in place for two years.

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