APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
OPINION OF THE COURT
THE LORD JUSTICE GENERAL
NOTE OF APPEAL AGAINST SENTENCE
GARY KEITH HENRY HARRISON
HER MAJESTY'S ADVOCATE
Appellant: Bain; Drummond Miller
Respondent: Mulholland; Crown Agent
4 June 1999
The appellant is Gary Keith Henry Harrison who pled guilty at the High Court at Edinburgh to a charge of assault and robbery. He was sentenced to four years detention backdated to 3 November 1998 and against that sentence he has now appealed.
The circumstances of the offence were as follows. Up until the latter part of 1997 the appellant, who at the time was aged 17, had been living with his mother, though, as counsel explained, life with her had never been easy because of financial difficulties and because of various illnesses from which she suffered. His father had been convicted of abusing his half sister and had been imprisoned and, although he had returned to the family, he had never been a constant presence after that.
The appellant obtained work as a trainee chef and kitchen porter in an establishment in his home area. In October 1997 he became friendly with a group of young men whom he got to know through his half brother and it appears that he became impressed by these young men. The group included Paul Parker and Philip James Alexander Smith. Parker was, at that time, aged 17 and Smith was aged 20. Both of these young men had previous convictions and we shall have occasion to refer to that matter. Three days before the incident the appellant had an argument with his mother and went to live in the flat of his half brother which was a place where the group of young men met and spent time so that, as counsel pointed out, on the evening in question there were no less than nine young men hanging around in the flat. From the general conversation it was known that Parker and Smith were up to something. In the afternoon of the day in question the appellant was on his way to meet friends whom he knew from school and, by chance, he met Parker and Smith who asked him to act as a look-out in a robbery which they had planned. On the spur of the moment he agreed to do so and thus it came about that in the early evening the three men, including the appellant, went into a shop in St Andrews. The appellant was wearing a cap and had his t-shirt pulled over part of his face. The other two were wearing balaclavas. One of them produced a knife and pointed it at the shop assistant. The other man went behind a counter. Both of them demanded that the assistant open the till. They took £88 of money and in addition a quantity of cigarettes, cigarette papers and lighters. All this while, as had been agreed, the appellant stood inside the shop and acted as a look-out. The sentencing judge was told that the shop assistant was, not surprisingly, very distressed as a result of the incident and had become nervous. All but £50 worth of the stolen items were later recovered.
On behalf of the appellant Miss Bain stressed today, as had been stressed to the sentencing judge, that the appellant had known nothing about the knife until it was produced. He had merely expected the others to threaten the shopkeeper. Although he was shocked by this escalation of the incident, he had admittedly continued to keep a look-out. She stressed to us that his role should be seen as being rather passive, that he had not been aware of a knife and had not in particular known that it was going to be used.
When the appellant was arrested he initially denied his involvement but later gave a voluntary statement admitting his guilt and Miss Bain explained that he had at all times intended to plead guilty.
The sentencing judge had previously sentenced each of the co-accused to five years detention in respect of the same charge and the appeal against the sentence by Parker was refused. We note, however, that although Parker was only 17 years of age at the time he had already accumulated a number of previous convictions, at summary level but nonetheless involving theft of a motor vehicle, theft, breach of the peace, various breaches of community service orders and assault. In the case of Smith, who was 20, he had a record which extended back to 1993 and which is really quite substantial involving assaults, breaches of the peace and various crimes of dishonesty. There is therefore a material difference between the position of the appellant as a first offender and the position of both Parker and, in particular, Smith who had records of previous convictions which were of significance in this overall context.
On behalf of the appellant Miss Bain argued that we should take the view that this was a young man of only 17 who had been in work, who had lived essentially a normal life, who had no previous convictions and who had simply been led astray by these older figures on this particular occasion. There was no risk, she said, of him re-offending. His involvement in the offence itself had been relatively limited. She added that while in the Young Offenders Institution he had settled down and the report from there was in favourable terms. For all these reasons the sentence imposed upon the appellant could properly be regarded as excessive both in absolute terms and also in particular by reference to the sentences imposed on his co-accused.
The offence in question is clearly a very serious one and would often, of necessity, attract a substantial custodial sentence. Nonetheless we have borne in mind here that the appellant has already been in custody since November 1998. The question for us in those circumstances is whether or not we can properly regard the sentence as excessive and can now substitute a non-custodial sentence, as Miss Bain urged.
We have come to the view that, having regard to the previous good character of the appellant and to his age and to the various other factors relating to his particular involvement in the offence, we can indeed take the view that the sentence was excessive and that we can substitute for it a period of probation coupled with a requirement to do 100 hours of community service.