Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. MARK ALEXANDER PATERSON [2000] ScotHC 13 (2nd February, 2000)

In this Crown appeal against sentence the respondent is Mark Alexander Paterson who pled guilty in the Sheriff Court at Glasgow to assaulting the complainer by striking him on the face with a knife or similar instrument to his severe injury and permanent disfigurement. The Sheriff imposed a probation order for a period of two years (including a condition that the respondent attend alcohol counselling) and made a community service order requiring him to do 300 hours of unpaid work.

It appears that, on the occasion in question, the complainer was in the company of three male friends in Kirkintilloch between 12.30 and 1 a.m. As they were going along Highfield Road, they became aware of a car stopping behind them. Four young men, including the respondent who was 23 years of age, got out. The complainer's group became concerned because they thought that there might be trouble. One of the young men from the car chased the complainer's friends and the respondent approached the complainer whom he knew. He shouted at the complainer to "Come on then". The respondent was staggering and drunk. The complainer put up his hands and said that he had had nothing to do with fighting which had, apparently, gone on earlier that evening. The respondent pulled a knife from his pocket and struck the complainer across the nose and lip before running away. The complainer was able to summon help from a nearby householder who happened to be a nurse. She described the complainer as having a three-inch wound from the bridge of his nose to his mouth. The tip of his nose was hanging off.

An ambulance was called and the complainer was taken to hospital where he was found to have a deep-incised laceration of the nose across his nostril to the right upper lip, penetrating through the full thickness of the skin on the nose and lip and into the membrane inside. The complainer underwent surgery which was successful, though he was left with "a neat scar". Some further surgery might be required. The complainer does not understand why he was the subject of the attack. He was frightened to go out for about six months and his sleep was affected.

The knife carried and used by the respondent was about 31.5 cm. in length. It had a serrated blade 20.2 cm. long and 3.5 cm. wide.

In her report to this court the Sheriff expressly recognises that the offence warranted a significant custodial sentence. In that connexion she mentions the fact that the assault was unprovoked, the need to have regard to the safety of the public, the requirement for retribution and the need to deter others from committing a type of offence which had become all too common in the Glasgow area. Perhaps most significantly, she refers to the fact that the respondent had been convicted of assault to severe injury on indictment in the Sheriff Court in Glasgow in December 1991 when he was sentenced to a total of 260 hours of community service. The Advocate Depute accepted that the Sheriff had apparently had regard to the various relevant factors. His criticism was that she had given undue weight to the factors relating to the respondents' personal circumstances and insufficient weight to the public factors which meant that only a custodial sentence could be regarded as appropriate in this case, even though the respondent had not previously served a custodial sentence.

The reports available to the Sheriff and to this court indicate that the respondent is in regular employment and lives with a lady by whom he has three children. While these factors may have played a part in the Sheriff's choice of disposal, it is plain from her report that she selected a non-custodial sentence because she considered that the underlying cause of the appellant's behaviour on this occasion had been his difficulty in controlling his drinking. It had been said on his behalf that the respondent was remorseful and had recognised that the problem of his drinking required to be tackled. After the offence, in early 1999 the respondent had been referred to a psychiatrist who gave him advice and arranged to see him again. The respondent had attended on one further occasion but had failed to keep subsequent appointments.

Since being sentenced, the respondent has performed his obligations under the probation order satisfactorily. The report from his probation officer is in favourable terms and indicates that he has attended regularly on Sundays to perform work under the community service order. The Crown had sought to have that order suspended pending the appeal, but the court had refused that motion and the respondent had accordingly gone on to complete 104 out of a total of 300 hours of work required by the order. The Advocate Depute acknowledged that, if the court decided to allow the appeal and substitute a custodial sentence, we could properly have regard to the fact that the respondent had performed work in terms of the community service order when deciding what period of imprisonment should be imposed.

On behalf of the respondent Mr. Shead submitted that, even if the sentence could be regarded as lenient, it could not be regarded as unduly lenient in the sense of being outside the range which the Sheriff could reasonably have imposed in the circumstances. The favourable terms of the probation reports gave a proper basis for believing that the probation order was working effectively and so providing protection for the public. In all the circumstances the court could not hold that only a custodial sentence would have been appropriate.

We are satisfied that, having regard to the unprovoked nature of this serious attack with a large knife, the sentence is properly to be regarded as unduly lenient and that only a custodial sentence was appropriate. In reaching that view we bear in mind that the respondent was carrying the knife on the evening in question and that he had a previous conviction for assault to severe injury. The fact that he had been drinking heavily is no kind of mitigating factor. In our view, the Advocate Depute was correct when he submitted that the Sheriff had failed to give due weight to the factors of deterrence and punishment. On the other hand, we recognise that the respondent has apparently performed well during the period of probation and that he has been diligent in carrying out the community service order. We have taken these factors into account and, in the light of them, we have felt able to restrict the sentence to one of eighteen months imprisonment.

We shall accordingly allow the appeal, quash the sentence imposed by the Sheriff and substitute a sentence of eighteen months imprisonment.