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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Mason & Ors v. Her Majesty's Advocate [2006] ScotHC HCJAC_15 (31 January 2006)
URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_15.html
Cite as: [2006] HCJAC 15, [2006] ScotHC HCJAC_15
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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lady Cosgrove

Lord Philip

 

 

 

 

 

 

 

 

 

 

 

[2006] HCJAC 15

Appeal Nos: XC829/05; XC816/05; XC865/05

 

OPINION OF THE COURT

 

delivered by LADY COSGROVE

 

in

 

APPEALS

 

by

 

(1) LEE MASON, (2) CHRISTOPHER DUNN and (3) PAUL LAING

Appellants;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

Appellant: (1) Scott, solicitor advocate; Caird Vaughan, Dundee: (2) Renucci; Muir Myles Laverty, Dundee: (3) Brown, solicitor advocate; Bruce Short, Dundee

Respondent: G. Henderson, A.D.; Crown Agent

 

31 January 2006

 

[1] The appellants pled guilty at a pre-trial hearing at Dundee Sheriff Court on 24 October 2005 to a charge of assault to severe injury by knocking a fifty year old man to the ground and repeatedly punching and kicking him. The circumstances of the offence are fully described in the sheriff's Report. It appears that the complainer is the father of a youth who was one of a group involved in an altercation with another group of youths which included the appellants. The complainer came out of his home to confront the appellants' group and was set upon by them. He succeeded in chasing them away from outside his property. He then pursued them into the next street. As he turned to go back home the group set upon him. They laid into him and when he had been knocked to the ground, they continued as a group to punch and kick him. The group then ran off leaving the complainer lying injured on the ground. He was taken to hospital, where he was found to be suffering from extensive bruising all over his body. He also had a number of lacerations to his head and face. The bruising to his back and chest was particularly extensive and it was found that he had a number of fractured ribs and that his left lung had collapsed. He also had a fracture of his left hand. He was detained in hospital for two weeks.

[2] All three appellants were fifteen years old at the time of the commission of the offence in October 2004, and were sixteen when sentenced by the sheriff. The sheriff took the view that it was wholly unacceptable for a gang of young men to set upon a middle aged man whose purpose was to remonstrate with them about their behaviour and to persist in an attack upon him to the extent of causing broken ribs and a collapsed lung. He considered that no disposal other than a custodial one was appropriate for such a deliberate and violent offence notwithstanding the age and first offender status of the appellants.

[3] The sheriff explains his approach to deciding the appropriate length of sentence as follows. In the first place, he concluded that, in view of the nature of the assault and both the actual and potential consequences, the appropriate punishment was a custodial sentence of five years. A discount of 30% was applied to that figure to reflect what was acknowledged to be the considerable utilitarian value of the plea. That had the effect of reducing the sentence from 60 months to 42 months. He then reduced the penalty by a further six months to reflect the youth of the appellants and their first offender status. In the case of Less Mason and Christopher Dunn the sheriff discounted the sentence imposed by a further six months to reflect the efforts made by them since the offence to change their ways and demonstrate remorse. The sentence imposed on each of these appellants was accordingly 30 months detention. In the case of Paul Laing the sheriff applied a three month discount to take account of the fact that he sustained some kind of injury during the incident. The sentence imposed on him was accordingly 33 months detention.

[4] It was submitted in the course of the appeal hearings before us that the sheriff erred in his approach to sentence. We agree with that submission. The sheriff's view that a custodial sentence was inevitable having regard to the serious nature of this offence of assault that involved a group of youths punching and kicking a middle aged man who was lying helpless on the ground and causing severe injury is not one that can be faulted. Where the sheriff erred was in selecting as his starting point a sentence of 5 years detention, the maximum sentence available to him, and then proceeding to discount that figure to take account of the age of the appellants and their personal circumstances. The proper approach to deciding the appropriate length of a custodial sentence is for the sentencer to take into consideration the whole circumstances of the offence and all the personal circumstances of the individual offender. These will include his age and previous record of offending, if any. Where, as in the present case, a significant period of time has passed since the commission of the offence, the offender's behaviour in that intervening period may also be a pertinent consideration. Once an appropriate starting point that takes proper account of all of the relevant considerations has been identified, the sentencer can then apply any discount appropriate to reflect the fact that a plea of guilty has been tendered.

[5] Since the sheriff has erred in his approach, the matter of sentence of these appellants is at large for this court. We consider that, having regard to the circumstances of the offence and the whole personal circumstances of the appellants, the appropriate starting point for a custodial sentence is 3 years detention. That figure will be discounted on account of their guilty pleas to 2 years in the case of the appellants Christopher Dunn and Paul Laing. In the case of the appellant, Lee Mason, we have been persuaded that his personal circumstances are highly exceptional, and that he can be distinguished on that basis. We have continued his appeal against sentence for a period of eight months when the matter of disposal will be considered in the light of his whole circumstances.

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