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Cite as: [2004] ScotHC 64

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JA v. Her Majesty's Advocate [2004] ScotHC 64 (22 October 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Mackay of Drumadoon

Appeal No: XC972/03

OPINION OF THE COURT

delivered by LORD HAMILTON

APPEAL AGAINST SENTENCE

J.A.

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Keenan, solicitor advocate; Gilfedder & McInnes

Respondent: Hughes, A.D.; Crown Agent

22 October 2004

[1] On 16 July 2003, at a continued first diet at Falkirk Sheriff Court, the appellant pled guilty, in restricted terms, to the single charge on the indictment against him. On 21 August 2003 the sheriff, having considered a social enquiry report, sentenced the appellant, under section 208 of the Criminal Procedure (Scotland) Act 1995, to 3 years detention. He also purported to make, under section 209 of the Act, a supervised release order of 18 months. At the time of sentencing, the appellant was aged 15 years and 9 months; at the time of the offence he was 15 years and 5 months.

[2] The offence to which the appellant pled guilty was that on 21 April 2003 he had assaulted a boy aged 14 years and "did stab him on the body to his severe injury, permanent disfigurement and to the danger of his life". On that date the appellant was living with his grandmother, his legal guardian. At about 7.15 p.m. he told her that he was going out to "murder someone". She did not take the remark seriously, but the appellant armed himself with a kitchen knife with a four and a half inch blade before leaving the house. Later that evening he came upon the victim who was with some young friends. The victim, who regarded the appellant as a troublemaker, started to walk away but the appellant told him to stay "to see a trick". The boy having knelt down in compliance with the appellant's instructions, the appellant then drew the knife and without warning plunged it into the boy's thigh. He then withdrew the blade and said "Ha ha. I got you". He then ran off.

[3] Having ultimately been caught by the police, the appellant was interviewed under caution. Having admitted the assault he said -

"I cannae say anything else. That was the knife I used. See, to be truthful with you, I thought I was going to go out and stab somebody. Before I left the house I said to my Nana I was going to murder somebody. The murder thing was only a joke, though".

The police described the appellant's attitude throughout the interview as blasé and unconcerned. No motive for the assault was ever identified.

[4] The victim was rushed to hospital where, on admission, no pulse or circulation in the injured leg was found and it was suspected that there was internal bleeding. Because of the gravity of the injury and because a specialist emergency operation was required, he was immediately transferred by ambulance to Edinburgh Royal Infirmary. On arrival there the surgeon's diagnosis was that the boy's life was in serious danger and that, even if an emergency operation succeeded in saving his life, there was a high possibility that the injured leg would require to be amputated. In the event, after a prolonged and complex operation which involved, inter alia transplanting veins from the uninjured leg to the injured one, the boy's life was saved. Furthermore, as the transplants were subsequently found to be successful, it did not become necessary to amputate his leg, albeit he required to walk with crutches for some time thereafter. By the time the matter was before the sheriff the boy had made a good recovery, although both his legs were permanently disfigured with scars caused partly by the stab wound and partly by the consequential surgical intervention.

[5] Following his apprehension, the appellant was detained in Rossie School. The sheriff, having considered the whole material before him, was initially minded to remit the appellant to the High Court for sentence but ultimately decided that the case could be dealt with by him if he imposed a period of 3 years detention as from the date of sentencing (that is, without backdating it) and if that sentence was accompanied by a supervised release order of 18 months. In the social enquiry report the making of a supervised release order had been referred to as an option.

[6] The appellant appealed against his sentence, initially on grounds unrelated to the imposition of the supervised release order. In the course of the appeal procedure, leave to appeal was granted on the additional ground that a supervised release order could not, having regard to the terms of section 209 of the Act, competently be imposed on a child under the age of 16 years. The Crown conceded that contention, which is clearly well-founded. Section 209(8), while extending the application of section 209 to persons sentenced under section 207 (young offenders between 16 and 21 years of age), does not extend it to children sentenced under section 208. Nor does it appear to have been appreciated that, under section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, a child sentenced to detention under section 208 would, on release, be subject to a licence even though the period specified in the sentence was less than four years.

[7] In the course of the appeal procedure, a report was obtained from Rossie School. That disclosed that, because of threatening and aggressive behaviour on the part of the appellant, he had on 16 March 2004 been moved from that school to the Young Offenders Institution at Polmont. For the purposes of a continued hearing of the appeal, there were obtained further social enquiry reports (dated 29 April 2004 and 20 October 2004) and a report, dated 29 April 2004, from Mr. Gary Macpherson, Consultant Forensic Clinical Psychologist.

[8] The appellant has had a troubled childhood. When he was very young he and his sister were abandoned by their mother. Following an incident in November 1999 his case was, under section 56(4) of the Children (Scotland) Act 1995, referred by the Reporter to the local authority with a view to the making of arrangements for advice, guidance and assistance. In 2002 he was referred to the Reporter in respect of his commission of a number of offences. Numerous further charges, most of which were accepted, were referred to the Reporter in the early part of 2003. While at one stage there was some indication of a willingness on the appellant's part to co-operate with the Freagarroch Project (a joint venture among Bernardo's and various public authorities), his behaviour while detained at Rossie School gave serious cause for concern. There are some indications from the more recent social enquiry reports that, since his transfer to the Young Offenders Institution, he has shown an increase in maturity; but he has been assessed repeatedly at a high risk of re-offending. Mr. Macpherson, who carried out a thorough analysis of the appellant's history and character, concluded that he was "an unusual young man whose behaviour is at the extreme end in comparison to his delinquent peers". He expressed the view that the appellant "would present a high risk of future violence if he were to be released from prison at this time without further intervention or supervision". Mr. Macpherson also noted the importance of custody-based programmes in addressing the behaviour of such a person. No such programmes have yet been initiated with the appellant.

[9] Mr. Keenan for the appellant, recognising that in the whole circumstances this court might find it necessary, if the present sentence were quashed, to impose a more severe sentence, urged us simply to substitute a sentence comprising the custodial element imposed by the sheriff, namely 3 years detention. He submitted, in the alternative, that, having regard to the fact that the appellant had already been detained for some 18 months, the imposition now of a probation order would provide an opportunity for longer term supervision of him in the community.

[10] Having regard to the nature of the offence and the consequences for the victim, we are satisfied that only a substantial custodial disposal could appropriately be made in this case. While the appellant is young and is, in terms of the criminal justice system, a first offender, his mindless use of a knife on another boy could not properly have been dealt with otherwise. The concerning nature of the appellant's character and the risk of serious harm which he presents to the public, have, since he appeared before the sheriff, been confirmed by his behaviour and by subsequent reports. In our view the appropriate form of disposal in this case is an extended sentence. That will contain (1) a custodial element which reflects both the appropriate element of punishment and the need, both by confinement itself and by the provision of training in confined conditions, to protect the public and (2) an extension period which allows for supervision of the appellant for an extended period following his release into the community. That extended sentence is one of 6 years detention, of which the custodial term is 4 years and the extension period 2 years. In fixing the custodial term we have taken into account the fact that the appellant promptly admitted to the police what he had done and tendered a plea of guilty at an early stage. In arriving at the figure of 4 years, we have allowed a discount of about 9 months to reflect that factor. We have, in all the circumstances, acceded to Mr. Keenan's motion that such a sentence should be backdated to 22 April 2003 when the appellant was taken into custody. The extension period selected reflects the fact that by its expiry the appellant, by then 21 years of age, will have passed through adolescence and, hopefully, have accepted the responsibilities of adult life.