Dewar and McLean v HM Advocate [2021] HCJAC 29

Following an appeal heard by the Appeal Court at the High Court of the Justiciary,  the appellants – Gordon Dewar and Gary McLean – have had their sentences reduced.

The Appellants appeared at Perth Sheriff Court in February 2021, where they both pled guilty to assaulting police officers, along with behaving in a threatening or abusive manner. At sentencing, the Sheriff gave significant weight to the fact that the appellant’s had ‘spit’ on the police officer, an aggravating factor given the current pandemic.

Both appellants were given custodial sentences, with Mr Dewar sentenced to 22 months imprisonment and Mr McLean receiving a sentence of 3 years in total, including a discount they received for their pleas.

The appellants sought to appeal the sentences as excessive. Mr Dewar argued that, under the decision in HMA v Lindsay, the situation in his case was markedly different. In the aforementioned case, the action of coughing in the face of a police officer was seen to be reckless and aggravated by potential danger to life. In the current case at hand, no such aggravation was included in the plea. Mr Dewar submitted that having a sentence almost double the length imposed on him than was given in Lindsay was excessive. 

In determining Mr Dewar’s appeal, the opinion of the Court, as delivered by Lord Pentland, was as follows: “The sheriff was undoubtedly right to take a serious view of the appellant’s conduct in assaulting a police officer by spitting at her in the face from close range. As the sheriff aptly observes, such conduct is all the more deplorable in the course of the pandemic.” Lord Pentland observes, however, that: “We consider that there is force in the submission that the sentence selected by the sheriff was excessive when compared with that imposed by this court in Lindsay.”

Accordingly, giving weight to the disparity in Mr Dewar’s conduct with that in Lindsay, his sentence was reduced to 10 months, inclusive of his sentence discount.

The second appellant, Mr McLean, also sought to argue that his sentence was excessive based on Lindsay. He argued that both the length of the spitting charge and the fact that it was set to run consecutively to the other assault charge. It was argued that this sentence was more serious than the one handed down in Lindsay, despite the charges being seen as less serious and Mr McLean having a relatively less serious previous criminal record. 

In giving the opinion of the Court in relation to Mr McLean, Lord Pentland said: “We have no difficulty in agreeing with the sheriff that assaulting police officers by spitting at them during the pandemic amounts to a serious offence. Nonetheless, we consider that the starting point of 2 years’ imprisonment selected by the sheriff was too high, having regard to the guidance provided by this court in the case of Lindsay…we are persuaded that the sheriff erred in deciding to make the sentence for the assault by spitting a consecutive one”.

Accordingly, Mr McLean’s sentence was reduced to 9 months imprisonment, with all 3 sentences to run concurrently.