APPEAL AGAINST SENTENCE BY JB AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST SENTENCE BY JB AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_35 (25 August 2020) URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_35.html Cite as: [2020] HCJAC 35, [2020] ScotHC HCJAC_35, 2020 GWD 27-364, 2020 SCCR 376

[1] The appellant appeared at the High Court at Glasgow on 6 January 2020 and

tendered a plea in terms of the section 76 procedure to an indictment which libelled that on

14 April 2019 at an address in Edinburgh he did assault Adam Shafie and did repeatedly

strike him on the body with a knife, to his severe injury, permanent disfigurement and to the

[2] At an adjourned diet at the High Court at Glasgow on 7 February 2020 the appellant

was sentenced to 4 years detention (backdated to 6 January 2020), this being discounted

from a starting point of 6 years to reflect the early plea of guilty. It is against this sentence

that the current appeal is directed. It was submitted on behalf of the appellant that the

sentencing judge erred in imposing a custodial sentence in all the circumstances – most

importantly because of the appellant’s youth (he was aged 16 at the date of the offence as

was his victim), the fact that he had no previous convictions and had never been in any

trouble and the offence was quite out of character. Alternatively if the court concluded that

the sentencing judge was correct to take the view the offence was so serious that only a

custodial sentence was appropriate, it was submitted that the starting point of 6 years

detention before discount was excessive in all the circumstances.

[3] The facts of the incident were set out in an agreed narrative, the salient features of

“At 1700 hours on 14th April 2019, the complainer and a friend were walking on

Gilmerton Road, Edinburgh across from Aldi. The appellant was in the house at

403 Gilmerton Road (his friend’s house). He and his friend ran out of the house. The

appellant was carrying a pink kitchen knife. He ran to the complainer and attacked

him by stabbing him repeatedly with the knife. The appellant then left and went back

to the house and then ran towards the woods at Ellen’s Glen.”

The complainer collapsed at the side of the road and a number of passers-by stopped to help

him. Police with dogs conducted a search of the woods near to Ellen’s Glen but did not find

the appellant. The incident was captured on CCTV footage, a detailed synopsis of which

was given in the narrative of facts. This showed the appellant running with his hands in his

pockets, on the roadway towards the complainer. He removed his hands from his pockets

just prior to reaching the complainer. The knife could be seen in the appellant’s right hand.

It was held in the fist and pointed towards the ground. It was pulled back prior to striking

the complainer. The appellant could clearly be seen holding the knife at head height and

[4] The complainer was treated by paramedics at the scene and then taken to Edinburgh

Royal Infirmary. He sustained three penetrating stab wounds to his left anterior chest (5cm),

left flank (15cm) and a superficial wound to his left back. He sustained a

haemopneumothorax, a splenic laceration, injury to the tail of the pancreas, bronchopleural

fistula, and left upper lobe collapse. He required surgery, from which he will have a scar. It

is anticipated he will make a full physical recovery without any significant impairment, but

[5] At the diet on 6 January 2020 counsel for the appellant told the court that the

appellant was aged 17 and had been aged 16 at the time of the offence. He had never been

in trouble and lived with his mother, who was present in court with him. He was in

employment. At school he had obtained a qualification to become a mechanic and had been,

at the time of the incident libelled, in the process of qualifying to become an electrician. He

had acted impulsively as a teenage boy who now bitterly regretted his actions. The

appellant knew that there was only one sentence which the court would impose. A sentence

of detention was inevitable, the appellant’s counsel observed, and the appellant had faced

[6] At the adjourned diet for sentence on 7 February 2020 the criminal justice social work

report was available, and in addition there was provided on behalf of the appellant a

psychological report from Dr Suzanne Zeedyk, a developmental psychologist who

considered whether the appellant had experienced childhood trauma. Dr Zeedyk concluded

that he had indeed experienced significant childhood trauma resulting in toxic childhood

stress which altered the body’s self-regulatory system, leaving individuals less able to

manage strong emotions. In light of the CJSWR and Dr Zeedyk’s report, and on the basis of

the well-known authorities regarding the principles to be applied when sentencing a child,

all as helpfully set out in a very detailed and full written plea-in-mitigation, counsel

submitted that in the particular circumstances of this case a robust community disposal as

an alternative to custody was an appropriate and proportionate sentence that reflected all

that is required by society but that has, as a primary consideration of sentencing, the best

[7] The sentencing judge has provided a very careful and balanced report to this court,

which includes his sentencing remarks. He has clearly taken account of everything said to

him in mitigation, and the terms of the CJSWR and Dr Zeedyk’s report. His sentencing

“[4] In the whole circumstances I have concluded nevertheless that the gravity of

the index offence in your case requires, in the public interest and having regard to

the sentencing objectives of deterrence, punishment and community safety, the

imposition of a significant custodial sentence. In the light in particular of your young

age at the time of this offence and indeed today, however, and having regard also to

the favourable terms of the reports to which I have referred, and further bearing in

mind the sentencing principles of proportionality in general and your own welfare in

particular, I consider that I can reduce the usual range of starting-point or headline

custodial sentence that would normally be imposed for such a conviction in respect

of a first offender adult in your position to a period on this indictment of 6 years. A

plea of guilty was of course offered on your behalf and accepted by the Crown at the

earliest opportunity in these proceedings and you are therefore properly entitled to a

[5] You will therefore serve a sentence of 4 years detention, duly discounted

from that period of 6 years. That period will be backdated to 6 January 2020, being

[6] In the interests of clarity I should add that I consider that to impose any

community-based disposal such as that commended to the court by your counsel

and by the author of the background report, or indeed to impose a lesser custodial

sentence than the one I have selected in your case would be inappropriate and

unrealistic given the gravity of the crime to which you have pled guilty on this

indictment. Finally, it is to be hoped that the period of licence which this sentence

will inevitably permit will assist you in your re-integration into the community in

[8] In her written and oral submissions to this court counsel for the appellant argued

that, having regard to the favourable terms of the CJSWR and to Dr Zeedyk’s report, the

sentencing judge had erred in concluding that a non-custodial sentence was not appropriate

in all the circumstances. In any event, if the court was not with her in this submission she

argued a starting point of 6 years detention was, in all the circumstances, too high. Her

submissions in relation the CJSWR are summarised in paragraphs [03] and [04] of her

“[03] The appellant is now aged 17 years of age. He had no previous convictions

and had never been trouble before. The commission of the offence was out of

[04] The criminal justice social work report was in positive terms for the appellant.

The appellant accepted full responsibility for the offence and described his response

to what he perceived to be a threat from the victim as disproportionate and

unacceptable. He described his behaviour as impulsive. He showed a good deal of

insight into the negative impact that his actions had upon the victim and his family.

He recognised the impact on the local community and those who witnessed his

actions. He was noted to have demonstrated a positive attitude towards intervention

and authority through his engagement with the criminal justice social work report

writing process. The author of the report noted that she had received positive

feedback about his conduct in custody and that he had demonstrated resilient

personality traits. He was noted to have demonstrated that he adheres well to rules

and had been given the trusted position of “pass man” while on remand. He

exhibited positive attitudes such as viewing risky behaviour such as substance abuse

and violence as being negative and harmful. He was assessed as suitable for a

community based disposal. The author of the report identified what form a

community based disposal could take, recommending supervision, unpaid work and

[9] Counsel for the appellant also relied on the report from Dr Zeedyk. She set out in

her report what the science of Adverse Childhood Experience is and how toxic stress in

childhood causes biological alterations in the body. She highlighted that toxic childhood

stress alters the body’s self-regulatory system, leaving individuals less able to manage

strong emotions and the behaviour that results from emotional states. Dr Zeedyk’s report

set out the childhood factors that, in her opinion, were relevant to the commission of the

offence. She concluded that the appellant had suffered from a childhood affected by adverse

childhood experience. She identified specific adversities in the appellant’s life as acrimony

in the family, family chaos, substance use, sudden disappearance of his father, erratic

disappearances of his mother, erratic housing and care, his mother’s mental health, bullying,

hospital stay, observing life-threatening violence and intergenerational trauma. Dr Zeedyk

noted demonstrable empathy and remorse from the appellant. She gave recommendations

[10] Counsel for the appellant relied on the well-known line of authorities giving

guidance on the principles to be applied to the sentencing of children, and in particular

Kane v HM Advocate [2003] SCCR 749 and McCormick v HM Advocate [2016] SCCR 308. We

have given careful consideration to these authorities, and also to others, including Greig v

HM Advocate [2012] JC 115, VE v HM Advocate [2018] HCJAC 12, R (Smith) v SSHD

[2006] 1 AC 159 particularly per Lady Hale at para [25], Campbell v HM Advocate [2019] SLT 1127

and Green v HM Advocate [2020] JC 90, particularly per the Lord Justice General at para [80].

[11] We have found this a particularly difficult sentencing exercise, and any remarks we

make should not be interpreted as being critical of the sentencing judge. We begin by

agreeing with his observations as to the seriousness of this crime. Notwithstanding the

youth of the appellant, this was such a serious crime that we consider that only a custodial

sentence was appropriate in all the circumstances. Without anything which might be

reasonably described as provocation by the complainer, the appellant saw him walking in

the public street past the house in which the appellant was situated; he seized a large

kitchen knife, ran out into the public road and carried out a murderous attack on the

complainer, inflicting several blows with the knife and causing severe injury. It was only by

good fortune that death did not ensue. We are in complete agreement with the sentencing

judge that only a custodial sentence was appropriate to mark the seriousness of this crime.

[12] Was a starting point of 6 years (then discounted to 4 years) detention excessive

having regard to the appellant’s age? We have reached the conclusion that it was indeed

excessive, having regard to the very supportive terms of the CJSWR and the careful report

by Dr Zeedyk. Unlike some other cases involving young accused, this is not a case in which

there is no glimmer of hope; it appears to us possible that the appellant will be successfully

re-integrated into society. He has shown some maturity and considerable empathy. He

appears to have progressed well in detention, and it is to be hoped that this progress will

continue. It is clear from the authorities to which we have referred that the exercise of

sentencing a child such as the appellant does not involve a direct or arithmetical equation

with sentences which might be appropriate for adult offenders. From paragraph 4 of his

sentencing remarks it appears that the sentencing judge has carried out a form of

discounting exercise, taking as his starting point the sentence that would be appropriate for

an adult offender. To that extent we consider that the sentencing judge erred in the

approach he adopted. Taking all the factors in this case together, including the seriousness

of the offence, the difficulties highlighted in the appellant’s background by Dr Zeedyk’s

report, and the supportive features highlighted in the CJSWR, we have reached the

conclusion that a starting point of 6 years is indeed excessive and does not pay adequate

attention to the best interests of the appellant and his re-integration into society. We

consider that a starting of 5 years detention is appropriate in the particular circumstances of

[13] We shall accordingly quash the sentence of 4 years detention (discounted from a

starting point of 6 years) which was imposed at the High Court at Glasgow on 7 February

2020 and substitute therefor a sentence of 40 months detention which is discounted by the

same discount as previously awarded, from a starting point of 5 years detention.

Scottish High Court of Justiciary Decisons