APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 116
Lady Paton Lord Bracadale	Appeal No: XC133/13   OPINION OF THE COURT   delivered by LORD BRACADALE   in   APPEAL AGAINST SENTENCE   by   CONNOR MICHAEL WISHART   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: Jackson QC, Duling; John Pryde & Co SSC

Respondent: R Clelland, ad hoc, AD; Crown Agent

 

2 October 2013

Introduction

[1] On 11 January 2013 at a trial diet on an indictment at the Sheriff Court at Edinburgh the appellant pled guilty to a charge in the following terms:

"On 9 February 2012 at Dalkeith Road, Edinburgh you did assault Tom Piddock, c/o Lothian and Borders Police and did repeatedly punch and kick him on the head and body, causing him to fall to the ground and did push him on his head causing his face to strike against an iron fence spike, all to his injury and permanent impairment."

 

In addition, the offence was racially aggravated.

[2] The appellant, who was aged seventeen years at the time of the commission of the offence, had no previous convictions.

 

Sentence

[3] On 22 February 2012 the Sheriff (McColl) sentenced the appellant to 27 months detention discounted from 30 months to reflect the stage at which the plea was intimated. He was released on interim liberation on 4 March 2013.

 

Circumstances

[4] The agreed narrative disclosed that the assault was committed in a number of stages. The complainer and his friend were walking in Dalkeith Road at about 11.15pm. They became aware of the appellant and his co-accused behind them. The appellant and the co-accused were wrapped in Scotland flags and chanting football related songs. The complainer and his friend tried to ignore the appellant and the co-accused and continued walking. The appellant and the co-accused were shouting at the complainer and his friend. They shouted, "You cunt on the left turn round" and made reference to "you fucking English cunts".

[5] When the appellant and the co-accused caught up with the complainer and his friend the appellant punched the complainer on the back of the head. The complainer and his friend walked away and were pursued by the appellant and the co-accused. The complainer and his friend began to run. They went to the front door of a bed and breakfast property where they rang the doorbell to try to get help. The appellant and the co-accused continued to pursue them into the garden of the premises. The appellant pinned the complainer to the wall of the building by his shoulders and punched him on the face several times, while encouraging the co-accused to do likewise. The co-accused declined to do so, as he was punching the complainer's friend.

[6] The complainer got away from the appellant. He made his way onto the pavement in Dalkeith Road where he tried to stop passing taxis. Because his face was covered in blood the taxis would not stop. The appellant chased after the complainer and again caught up with him. The appellant punched the complainer on the back of the head and knocked him to the ground. He kicked him several times to his torso, face and the rear of his head. The complainer covered his face with his hands to protect his face. The complainer took hold of a cast iron fence to try and help pull himself to his feet. When he was slumped over the fence the appellant pushed him on the back of the head causing his face to move on to a spike which entered his nose.

[7] The complainer managed to free himself from the spike and ran further along Dalkeith Road. The appellant and the co-accused chased after him and his friend once more. The appellant or the co-accused grabbed at the rucksack and jacket of the complainer who managed to slip these off his back and ran on. Eventually, the complainer and his friend encountered passers-by in Dalkeith Road as a result of which they were given assistance and some protection from further assault. One passer-by called the police. The complainer and his friend took refuge in a Chinese restaurant. The restaurant staff flagged down the police when they arrived.

[8] The complainer was taken to hospital where he was found to have sustained minor facial injuries. Some days later he attended at the Eye Pavilion complaining of reduced vision in his left eye. In the agreed narrative it was stated that as a result of the assault he had lost 20-25% vision in the left eye.

 

Sheriff's conclusion as to a custodial disposal

[9] On page 9 of her report the Sheriff records that it appeared to her that the nature and severity of the assault was such that the available alternatives to a custodial disposal by means of community-based disposals such as a community payback order with a requirement of unpaid work and a compensation order were not appropriate and that a custodial sentence was the only appropriate disposal.

 

Submissions

[10] Mr Jackson QC, who appeared on behalf of the appellant, stressed that the appellant was a person to whom section 207(3) of the Criminal Procedure (Scotland) Act 1995 applied. He made reference to the personal circumstances of the appellant and the positive terms of the criminal justice social work report. The appellant was seventeen years of age at the time when the offence was committed. He had no previous convictions. He had accepted full responsibility. He had shown remorse. His personal circumstances were that he came from a good family. There were no risk factors. The author of the report had followed up with subsequent letters which were supportive of a non-custodial sentence.

[11] Mr Jackson drew attention to the circumstances leading up to the commission of the offence. On the date of the offence the appellant went to a concert with friends. He drank more alcohol than usual, as he normally drank very little. His behaviour was affected. He was also suffering a low mood as a result of the recent suicide of his 21-year-old cousin, to whom he had been very close. The appellant had not drunk at all since the offence. The offence was totally out of character.

[12] After leaving school, the appellant had gone to work for Bibby, a Financial Services Provider. He had done extremely well there and references were provided indicating that he was highly thought of and had a high chance of promotion. A number of other character references were placed before the court, one from the Holyrood Amateur Boxing Club in which the appellant was an active participant.

[13] Mr Jackson submitted that the victim impact statement prepared by the complainer painted a very extreme picture of the level of impairment. The complainer had described total loss of vision in the left eye. That was to be contrasted with the terms of the agreed narrative in which reference was made to a loss of vision in the left eye of 20-25%, based on medical evidence. That was very different from the effective loss of sight claimed in the victim impact statement. The sheriff had sentenced in a way that was heavily influenced by the terms of the victim impact statement and was inconsistent with the terms of the agreed narrative. The Sheriff had regard to an earlier case, cited in Morrison's Sentencing Practice, in which a first offender of otherwise good character who had made an attempt to save money to compensate the victim was sentenced to 3 years imprisonment in respect of an assault in which he struck the victim on the face with two glasses which shattered on impact causing severe injury and permanent disfigurement and effectively loss of sight in one eye. That offence had been described as dreadfully serious and completely unprovoked, with ruinous consequences to the victim's prospects of employment and enjoyment of life. Mr Jackson submitted that in the circumstances of this case that was an inappropriate comparison.

[14] The sheriff had erred in coming to the conclusion that the only appropriate disposal was a custodial one. If due weight had been given to the extent of the complainer's injury as set out in the agreed narrative, the appellant's circumstances and to the alternatives to custody presented for consideration in the social work report, then an alternative to custody could have been selected as the appropriate sentence. He submitted the interests of justice would be served by the imposition of a non-custodial disposal.

 

Decision

[15] We fully recognise that having regard to his age the appellant was a person to whom section 207(3) of the 1995 Act applied. The sheriff could not impose detention unless she was satisfied that no other method of dealing with the appellant was appropriate. The personal circumstances of the appellant were good. We note that he was aged seventeen years at the time of the commission of the offence; he had no previous convictions; the assault was out of character; there was an unfortunate background in the life of the appellant at the time; he had shown genuine remorse; he has worked since leaving school and has a good job; he produced a number of very positive references; the criminal justice social work report was very positive; and the appellant was suitable for the making of a community payback order with conditions of unpaid work and the making of a compensation order. All these considerations were before the sheriff.

[16] It was clear from the agreed narrative that this was an unprovoked attack on a complete stranger. It was a sustained and prolonged attack comprising a number of stages of physical assault followed by pursuit when the complainer and his friend tried to escape. The first and second chapters of the assault involved punching on the head; the third stage involved repeated kicking on the head and body; the fourth stage involved the iron fence spike. Even after that the appellant continued to pursue the complainer.

[17] In our opinion the sheriff carefully addressed the considerations relating on the one hand to the nature of the assault, and, on the other, the positive factors in favour of the appellant. Having regard to the very serious nature of the assault, even leaving aside the question of the extent of the permanent impairment, we are unable to say that she erred in her approach. In our opinion she was entitled to conclude that the only appropriate sentence was a custodial one.

[18] We accept that it may be inferred from her report that in assessing the length of the sentence, the Sheriff proceeded on the basis of the victim impact statement which on the face of it appeared to be inconsistent with the agreed narrative. The Sheriff had drawn attention to the matter and invited the solicitor for the appellant to consider whether a proof in mitigation might be necessary. This was declined. In a letter to this court the solicitor who represented the appellant before the Sheriff states that in the course of the discussions prior to tendering the plea the procurator fiscal depute told her that the position of the complainer in the victim impact statement was not consistent with the medical evidence. The procurator fiscal depute indicated that that did not present a difficulty to an agreed narrative as the Crown accepted and relied on the medical evidence which was the basis on which the plea was negotiated and tendered and the narrative drafted.

[19] Whatever the precise nature of the discussions between the Crown and the defence, it appears that no such explanation was placed before the sheriff, who was left in a difficult position when assessing the extent of the injury sustained by the complainer. In the light of the information now before us we have come to the view that the length of the sentence imposed by the sheriff in these circumstances was excessive. We shall quash the sentence of 27 months detention. Approaching the matter on the basis of the agreed narrative and having regard to the various factors in favour of the appellant we consider that the appropriate disposal, leaving out of account the stage at which the plea of guilty was intimated, would be 20 months detention, of which 2 months is apportioned to the racial aggravation. We shall allow a discount of 2 months to reflect the stage at which the plea of guilty was intimated and impose a period of detention of 18 months.