Scottish High Court of Justiciary Decisons

JANETTE CARRUTHERS MAXWELL v. HER MAJESTY'S ADVOCATE [2000] ScotHC 10 (28th January, 2000)

The appellant is Janette Carruthers Maxwell who went to trial on indictment along with a number of co-accused at Kilmarnock Sheriff Court. She appealed against conviction and, by virtue of a proper concession of the Crown, this Court substituted for the verdict of the trial jury a verdict that the appellant on the occasion in question struck the complainer on the head with a metal pipe or similar instrument to her injury. That therefore is the basis upon which we have to consider her appeal against sentence. We should make it clear, however, that, although the actual terms of the verdict returned by the jury were more extensive, in sentencing the sheriff proceeded on the basis of the verdict limited in the manner which we have mentioned.

The report of the sheriff indicates that, for no very apparent reason, there had been a history of feuds between the complainer's family, the Hynds, and their neighbours on the estate where they live. That feuding had given rise to a number of assaults and breaches of the peace in the past. Attempts to mediate between the rival factions had not met with success. On the occasion when this assault took place on 13 March 1998, it appears that the appellant had earlier indicated that she had wanted to fight with the Hynds and that, after the incident, she said that she had been waiting for them at the time. In any event she ran down the street and started to assault the complainer. She struck her on the head and, after a struggle between them, the complainer's father took the metal pipe from the appellant's hand. As a result of the assault the complainer had three or four lacerations on the top of her head consistent with the use of a blunt object. They required the insertion of three stitches. There was no medical evidence of any other injury.

In explaining his sentence the sheriff says that he had had a number of these cases in the past and that he had initially tried to deal with them in a way which would not exacerbate the difficulties between the neighbours that had apparently given rise to the feuding. But more recently he had given a warning that, if this behaviour persisted, disturbances of this kind would be dealt with severely by him. He was of the opinion that the stage for dealing with the matters severely had been reached in this case. He realised that the appellant was in employment at the time and could pay a fine. He was also aware of, and took into account, the fact that she could be considered a suitable candidate for community service. But he took the view that, in the particular circumstances of this case, having regard to the background, only a sentence of imprisonment would serve to deal with what he described as "this lamentable situation".

In presenting the appeal today, Mr Brown submitted that the offence of which the appellant had ultimately been convicted was not so serious that only a custodial sentence was appropriate. He pointed out that, although the matter had been charged on indictment, the sheriff had in the end imposed a sentence of 5 months imprisonment which was in effect a summary sentence, so indicating that he had realised that the matter was not one of undue seriousness. Mr Brown submitted that the sheriff should not have concluded that custody was the only appropriate sentence. He pointed out that, although the appellant had previous convictions, the last of them was in December 1989 and they had all been at summary level. There had been four convictions for breach of the peace and one for police assault in 1981, in relation to which the appellant had been placed on probation. For our part we do not attach any particular importance to the previous convictions of the appellant and we do not understand the sheriff to have done so either.

In relation to the feuding, which was obviously a matter of concern to the sheriff, Mr Brown pointed out that the sheriff acknowledged that he did not really know its background. Mr Brown said that it was a feud between the Hynds, the complainer's family, and the other people who lived on the scheme. Allegations had been made against the appellant in the past and she had been prosecuted but acquitted on two occasions. The local authority had tried to mediate on this matter. The local authority and the police had arranged a meeting between the Hynds and their neighbours, but the Hynds had not turned up. The proper way to look at the situation was therefore to regard the Hynds as being the prime movers in any feuding.

Mr Brown's submission was that in the circumstances a non-custodial sentence would be adequate and, in particular, a sentence of community service. In that connection Mr Brown pointed out that the appellant had served 20 days in prison before being released on interim liberation. It was also relevant to notice that prior to her conviction the appellant had been in employment for 6 years, but that after her conviction she had lost her employment and had been unable to get any further employment. It was therefore proper to have regard to that factor which had had, he said, a punitive effect.

There is no doubt that the factors advanced by Mr Brown are ones which have weight. They are also, of course, matters which were, for the most part, before the sheriff. What we have to consider is whether we can say that the sentence was excessive, having regard to the particular approach which the sheriff took. Mr Brown accepted that, as the local judge with knowledge of the area, the sheriff was entitled to have regard to that knowledge in assessing what sentence was required in a case like this. It is clear that the sheriff has approached his task on the basis that this is a very particular situation where there have been disturbances over a period of time and where the court has issued a warning, in order to try to deter these disturbances, that any future disturbance will be dealt with severely. What he has done in this case has been to give effect to the policy which he indicated that the Court would adopt. Having regard to all the circumstances, including all that was said by Mr Brown in mitigation, we have concluded that we cannot say that the sentence was excessive. We shall accordingly refuse the appeal.

LIN