APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Smith Sheriff Principal Lockhart QC	[2013] HCJAC 133 XJ608/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEAL AGAINST SENTENCE   by   WILLIAM SIMPSON Appellant;   against   PROCURATOR FISCAL, DUNDEE   Respondent:   _____________

 

Appellant: Gilfedder; Paterson Bell, Edinburgh

Respondent: Pike AD; Crown Agent

 

27 September 2013

 

[1] William Simpson pled guilty at Dundee Sheriff Court at a trial diet to a charge of having assaulted the complainer by punching him on the head, knocking him to the ground and repeatedly punching him on the head and kicking him on his body to his injury. He was sentenced to a period of 11 months detention reduced from 12 months in the light of his plea. The sheriff also imposed a Football Banning Order for 30 months which is not appealed against, the relevant ground not having passed the sift.

 

The Assault

[2] The background is that the assault occurred after a Scottish Premier League football match between the Dundee and Aberdeen teams. The match had taken place in Dundee and the Aberdeen team won. The complainer was an Aberdeen supporter. He made his way to the railway station after the game. The appellant approached him as he was doing so, asked if he was an Aberdeen supporter and, when he responded in the affirmative, punched him, kicked him, knocked him to the ground, straddled him and punched him at least six times on his head. He then stepped to one side of the complainer, drew his foot back and kicked him hard in the body, by which time the complainer had already been rendered defenceless. The injuries to the complainer included that he had a painful, swollen and bleeding nose. The sheriff was shown the relevant CCTV recording and in his report he described the appellant as having approached the locus in a "swaggering and aggressive" manner, walking down the middle of the street towards the railway station with his arms outstretched.

[3] The description of events that the appellant provided to the social worker who prepared a report for the court sought to minimise matters to an extent that did not accord with what was shown on the CCTV. Also, the appellant asserted that the event was not football related. The sheriff did not accept that assertion and we can see that he had good grounds for refusing to do so.

[4] The appellant was a first offender. He had been drinking at the time of this offence. The court report assessed him as being of low risk.

 

The Sheriff's Reasons

[5] The sheriff explains in his report at paragraph 6 what view he took of this assault. He said this:

"I took the view that this was a very serious offence for summary procedure. As narrated by the procurator fiscal it was obviously a significant assault. When viewed on the video recording it was my opinion that it was a particularly unpleasant incident in which a man, on his own, in a public place was assaulted with no immediately obvious reason except for the fact that he was an Aberdeen supporter, was knocked to the ground and was there punched several times and kicked. Notwithstanding the fact that the appellant is a first offender I consider that that was so serious to merit not only a custodial disposal but a starting point at the maximum of 12 months. I discounted that to take account of the stage at which the plea was tendered."

 

 

The Appeal

[6] Before us today, Mr Gilfedder submitted, on behalf of the appellant, that that sentence was excessive. Although it was recognised that this was a serious matter and it was an offence that entitled the sheriff to impose a custodial sentence, it was not a sentence which ought in the circumstances to have been imposed. The appellant was a first offender. He was of low risk. He had a supportive girlfriend. He has given up drinking alcohol. He and his girlfriend have moved into a new flat. He has no outstanding cases. He has shown genuine remorse. Although custody was a possible sentence, it could not be said that there was no other way of dealing with him. Mr Gilfedder indicated that the appellant was still unemployed. He had been due to attend an off-shore training course, which his father had given to him as a present on his 21^st birthday. That course had been due to take place starting in July of this year but his attendance was cancelled because of the imposition of the present sentence. The course having been paid for the appellant would be able to resume attendance on it now.

[7] Mr Gilfedder submitted that the appellant had had a short sharp shock of detention. He had served almost eight weeks of his sentence before being released on interim liberation. This court should, he submitted, consider imposing a community payback order with a condition of unpaid work as an alternative to detention. If that was not the appropriate disposal then he submitted that the sentence imposed was excessive given that the maximum available to the sheriff had been selected and given that the appellant was a first offender.

 

Decision

[8] Turning to our decision, we agree with the sheriff that this was a very serious offence. The assault by the appellant was wholly unprovoked, vicious and motivated by allegiance to a football team. That context was of particular significance. Experience has shown that there is serious and real risk of any violence that occurs between football supporters escalating. The sheriff was right to consider that, notwithstanding the fact that the appellant was a first offender of low risk, a custodial sentence required to be imposed and that no other sentence was appropriate. We do accept, however, that, given that fact that the appellant was a first offender and also the other positive factors referred to by Mr Gilfedder, the sheriff erred when it came to determining the length of the period of detention.

[9] We will accordingly quash the sentence that was imposed and, in its place, impose a sentence of 5 months; we would have imposed a sentence of 6 months if the appellant had not pled guilty.