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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 40
HCA/2021/000168/XC
Lord Pentland
Lord Doherty
OPINION OF THE COURT
delivered by LORD DOHERTY
in
APPEAL AGAINST SENTENCE
by
COLIN MARSHALL
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: A Ogg (Sol Adv); Gilfedder and McInnes
Respondent: Prentice QC (Sol Adv) AD; the Crown Agent
17 August 2021
[1]
The appellant is now aged 35. He was convicted after trial of three offences of
violence committed on 19 and 20 May 2020. The victim in charges 1 and 3 was his friend,
Calvin Whorlow. The appellant was heavily intoxicated with alcohol at the time of the
offences involving Mr Whorlow. Charge 1 was an assault to injury involving repeated
punching of Mr Whorlow's head, knocking him to the ground, and rendering him
unconscious. Charge 2 was an aggravated assault to injury on Ms Hornby, whom the jury
2
found was the appellant's partner at the time, by punching her to the head and body, and
pushing her causing her to fall down stairs. By far the most serious offence was charge 3,
the attempted murder of Mr Whorlow. That assault involved repeatedly punching Mr
Whorlow's head and body and stabbing him in the neck with a knife, all to his severe injury,
permanent disfigurement, and to the danger of his life. After the attack Mr Whorlow was
left unattended, unconscious and bleeding, in the common close outside the appellant's flat.
It was only by good fortune that he was discovered by police officers soon after and an
ambulance was summoned. The penetrative injury to Mr Whorlow's neck was in an area
carrying major blood vessels and it was fortuitous that no major vessel was cut. Had one
been cut it is more likely than not that Mr Whorlow would have bled to death. In fact, the
actual injury sustained to his neck would not have resulted in death through bleeding even
if medical attention had not been obtained when it had been. The laceration was 2.5cm in
width and of uncertain depth. It did not require suturing and it was closed by using a
steristrip.
[2]
The appellant has 34 previous convictions (between 2002 and 2020) encompassing 80
offences. Ten of those offences were for assault, of which one was for assault to severe
injury, one was for assault to injury and robbery, and several were for assault to injury and
assault causing actual bodily harm. He has committed two domestically aggravated
offences. He has convictions for abduction, and for culpable and reckless fire-raising, and he
has numerous convictions for assaulting or impeding the police. He has had many custodial
sentences, the lengthiest of which was 18 months. His longest sentences for crimes involving
violence were 15 months for assault to injury and robbery, 9 months for assault to severe
injury, and 182 days for assault. He has also been convicted of several serious breaches of
3
the peace, some of them aggravated, for which he has received custodial sentences of up to
12 months' imprisonment.
[3]
The Criminal Justice Social Work Report ("the CJSWR") assessed the appellant as
having a very high risk of reoffending. Numerous risk factors were identified. There were
no protective factors.
[4]
It is not in dispute that the trial judge was right to conclude that an extended
sentence was necessary. He imposed a cumulo extended sentence of 18 years, with a
custodial part of 12 years and an extension period of 6 years. The factors which influenced
him most were the gravity of the attempted murder conviction, the appellant's record and
the high risk of further offending, and the need to protect the public.
[5]
Ms Ogg submits that the sentence is excessive, for three reasons. First, while the
assault with the knife created a potential danger to life, in fact the neck injury sustained was
not life-threatening and had been relatively minor. The sentence imposed was more
appropriate to cases where the injury inflicted had in fact endangered life. Second, while the
appellant has a lengthy record of previous convictions none of them had been in the High
Court. None was for crimes of violence of anything like the gravity of the attempted murder
conviction, and none of them had resulted in a sentence of more than 18 months
imprisonment. The sentence imposed here had been too great a leap from the previous
sentences. Third, the CJSWR suggested that the appellant was not predatory and that he did
not seek out opportunities to use violence. Rather, in large part his violence was a
disproportionate response to personal difficulties when under the influence of alcohol. The
report also suggested that the appellant had some insight into the causes of his offending
and that he was motivated to try and change. He was aware that unless he changed he ran
4
the risk that he might kill someone in the future. He had behaved well in prison where he
worked in a trusted position. A lesser sentence would achieve the purposes of punishment
and rehabilitation.
[6]
We emphasise that any attack on the neck with a knife requires to be viewed very
seriously indeed. The attack here was wickedly reckless and the jury concluded that it was
of a murderous nature. However, we accept that, fortunately, the laceration's consequences
appear to have been relatively minor. We also accept that although the appellant has a
lengthy record the attempted murder offence is very much graver than any crime of which
he has previously been convicted. We recognise too that the author of the CJSWR saw at
least some indications that the appellant may have some insight into his offending and that
he may be amenable to working towards reducing the very high risk which he currently
represents. That would be likely to involve acceptance that he abstains from alcohol, and
probably also acceptance of the need for work to address personality traits which may be
directly related to his impulsivity and violence. If there is to be progress it is likely to be
very gradual (and the appellant's continued denial of responsibility for the charge 2 and
charge 3 offences may prove to be an impediment to moving forward).
[7]
Section 210A(2) of the Criminal procedure (Scotland) Act 1995 makes clear that an
extended sentence is a sentence of imprisonment which is the aggregate of its two parts. It is
important to view the extended sentence as a whole, comprising a custodial part followed
by the extension period. We are in no doubt that the gravity of the offence of attempted
murder, the appellant's record, and the risk of further offending all point to the need for a
substantial extended sentence. However, we are satisfied that when due account is taken of
the other factors which we have outlined it is evident that the totality of the extended
5
sentence which the trial judge imposed is excessive. In our view the appropriate cumulo
sentence is an extended sentence of 15 years imprisonment with a custodial part of 10 years
and an extension period of 5 years. Accordingly, we shall allow the appeal, quash the
sentence imposed by the trial judge, and substitute that sentence.
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