APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Menzies	[2012] HCJAC 77 XC120/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by SEAN DEMPSEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Party

Respondent: Hughes AD; Crown Agent

9 May 2012

[1] On 14 January 2011, at the High Court in Edinburgh, the appellant, who is aged 29, was convicted of an assault to severe injury and permanent disfigurement, permanent impairment and the danger of life by repeatedly stabbing the complainer on 19 June 2010 on a platform or patio at the appellant's flat in Dundee. He was acquitted by the jury of that part of the charge which alleged attempted murder, no doubt on the basis of provocation. He was sentenced to 7 years imprisonment.

[2] The circumstances were that, on 4 June 2010, some 2 weeks before the incident libelled, there had been an earlier episode in which the complainer, who is described as a 32 year old drug addict, had attacked the appellant with a knife, when the appellant had called at the complainer's house to discuss allegations about him sleeping with the complainer's girlfriend. This episode is documented in medical records, which this court has seen and which reveal that the appellant attended hospital on that date with slash and stab wounds to his back and an injury to his eye. It is recorded that there had been a threat made to the appellant "to take his eye out". The police were called to the hospital and attempted to interview the appellant, but he declined to report the complainer's involvement because, he maintains, of fear.

[3] Returning to the day of the offence, the complainer went to the appellant's address armed with a knife with the admitted intention of attacking the appellant again. He had been given entry into the close by a third party. The appellant had been asleep on the patio and awoke to be confronted by the complainer, who threatened to kill him. The appellant managed to disarm the complainer. Despite a different account being given by the appellant in evidence, and indeed to some extent in person to this court, the jury must have believed the account given by one of the witnesses that, once the appellant had gained the upper hand and when the complainer was already covered in blood, the appellant had slashed the complainer's face repeatedly with the knife. The jury's verdict, which this court proceeds upon, therefore reflected what would have been a murderous attack, but for the provocation. The jury deleted, as has already been noted, the reference to attempted murder in their verdict. On the other hand they rejected the plea of self defence, which had been tendered and which the appellant had spoken to in his testimony.

[4] The appellant has a large number of previous convictions for a variety of different offences including dishonesty, public disorder and the carrying of weapons. He has been sentenced to custody on many occasions, commencing with a period of 1 year residential detention in 1997. Thereafter the disposals are frequent, but tend to be summary sentences of 6 months or less. There are no recent significant convictions for violence.

[5] It has to be accepted that the injuries ultimately inflicted upon the complainer were horrific. The court has seen the relative photographs. It would appear that the appellant had ultimately seized the complainer by the neck and, according to the witness (supra), had repeatedly cut him deeply on the face with the knife rendering him blind in one eye and, presumably, leaving him with scarring of a permanent nature.

[6] In his address to the court, the appellant founded upon a number of matters viz: (1) he had no significant record for crimes of violence; (2) he had been out of trouble for sometime prior to the incident; (3) the complainer had previously assaulted him; (4) the complainer had been the aggressor in coming to his house, overcoming security to gain entry and had done so with the intention of causing the appellant serious harm; (5) this was not an unprovoked attack by the appellant; (6) the complainer had been charged with offences of attempted murder between the first and second incident; and (7) the full extent of the appellant's injuries, particularly those stemming from the initial episode, were not revealed to their full extent to the jury. The appellant also brought to the court's attention that he had an injury to his buttocks, caused by a knife, which was not covered in the medical evidence at trial. The appellant dealt with a number of statements in the reports from the trial judge, to which he took exception.

[7] This court accepts that the injuries to the complainer were indeed horrific. It proceeds on the basis that the appellant's actions were done under real and substantial provocation, notably that the complainer had gone to the appellant's flat with the intention of doing him serious harm with a knife. The appellant had been attacked effectively in his own home. His retaliation, the jury must have accepted, was excessive and the court can readily understand why the jury reached their verdict. Having regard to the level of provocation, the court considers that the period of custody selected by the trial judge was excessive. It will therefore substitute one of 4 years imprisonment.

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