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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Bashir v. Her Majesty's Advocate [2003] ScotHC 37 (17 June 2003)
URL: http://www.bailii.org/scot/cases/ScotHC/2003/37.html
Cite as: [2003] ScotHC 37
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Bashir v. Her Majesty's Advocate [2003] ScotHC 37 (17 June 2003)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Kirkwood Lord Macfadyen
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Appeal No: XC242/03 OPINION OF THE COURT delivered by LORD MACFADYEN in NOTE OF APPEAL AGAINST SENTENCE by MOHAMMED BASHIR Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: A. Brown; Beltrami & Co.
Respondent:
D.J.T. Logan, ad hoc A.D.; Crown Agent17 June 2003
[1] The appellant, Mohammed Bashir, pled guilty to a charge that on 16 October 2001 in their family home he assaulted his wife, Naseem Bashir, to her severe injury, permanent disfigurement and permanent impairment and to the danger of her life. He was sentenced to six years imprisonment, backdated to 15 August 2002, the date on which his plea was tendered. [2] The assault took place while the complainer was asleep in bed. There had been a quarrel two days earlier about the appellant's drinking habits, of which the complainer disapproved, and it appears that there was also some resentment about the complainer's sister's interference between the parties. On the day of the assault the appellant went out in the evening, ostensibly to go to the mosque. The complainer retired to bed at about 10 p.m. At about 1 a.m. she woke to find the appellant striking her on the head with a large butcher's knife. Others in the house came to her assistance, and the assault came to an end. The appellant left the house, and eventually presented himself at a police station. [3] The complainer suffered a considerable number of injuries. These included three facial lacerations, one laceration on the left side of her chest and seven lacerations to the back of her head. These lacerations required varying numbers of stitches to close them. In addition, the complainer suffered traumatic amputation of the left thumb and little finger, and cuts to the back and palm of her right hand. Associated with the wounds to her head there was a fracture of the skull. She had to undergo prolonged surgery to re-attach the amputated thumb and finger, and repair the associated fractures and tendon and nerve damage. After in-patient and out-patient treatment, it was considered by 3 December that she was making good progress. [4] On behalf of the appellant it was submitted that notwithstanding the grave nature of the assault and the injuries caused, as to which there was no dispute, the sentence of six years imprisonment was excessive. Reliance was placed on the fact that the appellant, who has been resident in this country since 1970 and married to the complainer for twenty-seven years, has no material record of previous convictions (the only one libelled being in relation to the misuse of ice cream van chimes). We were invited to view the present crime as a one-off incident which was quite out of character. It could only be accounted for by reference to the appellant's abuse of alcohol along with prescribed medication (coproximal). We were informed that since the incident the appellant has completely given up drinking alcohol, and has sworn to abstain in the future. He was on bail for ten months up to the date on which he tendered his plea, during which time he adhered to the condition not to contact the complainer, although he attempted, unsuccessfully, to have that condition removed. Since August 2002, when he was taken into custody, his family, including the complainer, have visited him regularly. [5] These circumstances formed the background to the consideration on which counsel placed the greatest weight. That was that the complainer has forgiven the appellant and wishes to be reconciled with him. She has sworn an affidavit to that effect, which was before the sentencing judge, and was also placed before us. In addition, there were placed before us testimonials from a long-term neighbour of the parties and from the Imam of the mosque which the appellant attends. These testimonials bear out the good character of the appellant and the fact that his behaviour on the occasion in question was wholly out of character. [6] The sentencing judge described the assault committed by the appellant as a "persistent unprovoked attack upon his wife who was asleep", and concluded that the only appropriate disposal was a custodial one. With that we entirely agree. We are persuaded, however, that when account is taken of the appellant's good character, his abandonment of the abuse of alcohol, and the attitude of the complainer and indeed of his family as a whole, it is possible and appropriate to take a somewhat more lenient view than did the sentencing judge. [7] In the result we are persuaded that we should allow the appeal, quash the sentence of six years imprisonment, and substitute a sentence of four years imprisonment from 15 August 2002.