Scottish High Court of Justiciary Decisons

ROBERT WALLACE v. HER MAJESTY'S ADVOCATE [1999] ScotHC 4 (7th January, 1999)

The appellant was sentenced to eight years' imprisonment on a charge of assault to severe injury and permanent disfigurement. The sentence was made to run concurrently with twenty one months of an unexpired portion of an earlier sentence. That latter part, however, appears to be incompetent because the original sentence was imposed prior to 1 October 1993. Accordingly, the order made under section 16 of the 1993 Act will be quashed.

The circumstances of the offence as set out by the sentencing Judge were that the appellant met a man and a woman who were neighbours. They went drinking, obtained a carry out and proceeded to the house of one of them. In the evening the female said that she required to go elsewhere but the appellant wanted to stay. A dispute then arose and then the complainer intervened. The appellant picked up an ornament and struck the complainer repeatedly on the head, face and arm with the ornament. The complainer ran out of the house and the police were called. At hospital the complainer was found to have sustained an 8 cm laceration on his face which was deep and ran from the eye to the lip. This cut required thirteen stitches. Other cuts on the face, arm and back of the head also required three stitches and an X-ray revealed a fracture to the left zygoma. A permanent scar is likely.

The appellant has a record of previous convictions which is quite deplorable. He has convictions for thirteen offences of assault, one assault and robbery for which he was sentenced to seven years' imprisonment in 1978 and one assault to severe injury and danger of life in 1991 for which he was sentenced to nine years' imprisonment which was reduced to seven years on appeal. It was that sentence which still had twenty one months to run when the present offence was committed.

The Lord Justice Clerk tells us that his reason for imposing the sentence which he did was that he was satisfied that this was a very serious charge involving assault to severe injury and permanent disfigurement and that the appellant had a very bad record. He tells us also that he took into account the matters which were placed before him in mitigation and, in particular, that the appellant had himself sustained injuries including a fractured collar bone. He noted, however, that the jury had rejected the special defence of self-defence. In these circumstances he considered that the appropriate sentence was one of eight years' imprisonment.

Mr Jones, on the appellant's behalf today, has emphasised that this offence was committed against the background of all three persons involved having had a substantial quantity to drink. He said that the defence narrative was that the complainer went to sleep and when he woke up he found the woman making certain allegations about the appellant which led to a fight. The appellant said at the trial that he was assaulted by the complainer initially. There was evidence of injuries sustained by the appellant during the course of the incident and in particular the fractured collar bone. It was suggested by Mr Jones that these matters were perhaps not put fully to the sentencing Judge and if they had been he might have imposed a more lenient sentence.

What was in fact put to the sentencing Judge by counsel for the appellant was that a fight had erupted at the locus but that it was not clear who had struck the first blow. The appellant had sustained injuries and in particular the fractured collar bone. It was said that after the fight the appellant had remained on the premises and had waited for the arrival of the police. It appears, therefore, that there is not a great deal of difference between the account which was put before us by Mr Jones today and the account which was put forward some considerable time ago by counsel for the appellant to the sentencing Judge.

It is quite clear that even for an assault of this nature with the use of a weapon a sentence of eight years' imprisonment is a substantial sentence. However, it has to be noted that the appellant does have a quite deplorable record and that this offence was committed at a time when he was on licence from a sentence of seven years' imprisonment imposed for similar offences.

In these circumstances, while we accept that the sentence may be on the high side, we are quite unable to say that it can be properly regarded as excessive and accordingly this appeal must be refused.