|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lady Cosgrove
Lord Philip
|
[2006] HCJAC 15
Appeal Nos: XC829/05; XC816/05;
XC865/05
OPINION OF THE COURT
delivered by LADY COSGROVE
in
APPEALS
by
(1) LEE MASON, (2) CHRISTOPHER DUNN and (3) PAUL LAING
Appellants;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Appellant: (1) Scott, solicitor
advocate; Caird Vaughan, Dundee: (2) Renucci;
Muir Myles Laverty, Dundee: (3) Brown, solicitor advocate; Bruce Short, Dundee
Respondent: G. Henderson, A.D.; Crown Agent
31 January 2006
[1] The
appellants pled guilty at a pre-trial hearing at Dundee
Sheriff Court on 24 October 2005 to a charge of assault to
severe injury by knocking a fifty year old man to the ground and repeatedly
punching and kicking him. The
circumstances of the offence are fully described in the sheriff's Report. It appears that the complainer is the father
of a youth who was one of a group involved in an altercation with another group
of youths which included the appellants.
The complainer came out of his home to confront the appellants' group
and was set upon by them. He succeeded
in chasing them away from outside his property.
He then pursued them into the next street. As he turned to go back home the group set
upon him. They laid into him and when he
had been knocked to the ground, they continued as a group to punch and kick
him. The group then ran off leaving the
complainer lying injured on the ground. He
was taken to hospital, where he was found to be suffering from extensive
bruising all over his body. He also had
a number of lacerations to his head and face.
The bruising to his back and chest was particularly extensive and it was
found that he had a number of fractured ribs and that his left lung had
collapsed. He also had a fracture of his
left hand. He was detained in hospital
for two weeks.
[2] All
three appellants were fifteen years old at the time of the commission of the
offence in October 2004, and were sixteen when sentenced by the sheriff. The sheriff took the view that it was wholly
unacceptable for a gang of young men to set upon a middle aged man whose
purpose was to remonstrate with them about their behaviour and to persist in an
attack upon him to the extent of causing broken ribs and a collapsed lung. He considered that no disposal other than a
custodial one was appropriate for such a deliberate and violent offence
notwithstanding the age and first offender status of the appellants.
[3] The
sheriff explains his approach to deciding the appropriate length of sentence as
follows. In the first place, he
concluded that, in view of the nature of the assault and both the actual and
potential consequences, the appropriate punishment was a custodial sentence of
five years. A discount of 30% was
applied to that figure to reflect what was acknowledged to be the considerable
utilitarian value of the plea. That had
the effect of reducing the sentence from 60 months to 42 months. He then reduced the penalty by a further six
months to reflect the youth of the appellants and their first offender
status. In the case of Less Mason and
Christopher Dunn the sheriff discounted the sentence imposed by a further six
months to reflect the efforts made by them since the offence to change their
ways and demonstrate remorse. The
sentence imposed on each of these appellants was accordingly 30 months
detention. In the case of Paul Laing the
sheriff applied a three month discount to take account of the fact that he sustained
some kind of injury during the incident.
The sentence imposed on him was accordingly 33 months detention.
[4] It
was submitted in the course of the appeal hearings before us that the sheriff
erred in his approach to sentence. We
agree with that submission. The
sheriff's view that a custodial sentence was inevitable having regard to the
serious nature of this offence of assault that involved a group of youths
punching and kicking a middle aged man who was lying helpless on the ground and
causing severe injury is not one that can be faulted. Where the sheriff erred was in selecting as
his starting point a sentence of 5 years detention, the maximum sentence
available to him, and then proceeding to discount that figure to take account
of the age of the appellants and their personal circumstances. The proper approach to deciding the
appropriate length of a custodial sentence is for the sentencer to take into
consideration the whole circumstances of the offence and all the personal
circumstances of the individual offender.
These will include his age and previous record of offending, if
any. Where, as in the present case, a
significant period of time has passed since the commission of the offence, the
offender's behaviour in that intervening period may also be a pertinent
consideration. Once an appropriate
starting point that takes proper account of all of the relevant considerations
has been identified, the sentencer can then apply any discount appropriate to
reflect the fact that a plea of guilty has been tendered.
[5] Since
the sheriff has erred in his approach, the matter of sentence of these
appellants is at large for this court.
We consider that, having regard to the circumstances of the offence and
the whole personal circumstances of the appellants, the appropriate starting
point for a custodial sentence is 3 years detention. That figure will be discounted on account of
their guilty pleas to 2 years in the case of the appellants Christopher Dunn
and Paul Laing. In the case of the
appellant, Lee Mason, we have been persuaded that his personal circumstances
are highly exceptional, and that he can be distinguished on that basis. We have continued his appeal against sentence
for a period of eight months when the matter of disposal will be considered in
the light of his whole circumstances.
