2007HCJAC 13
APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lord Nimmo Smith
Lord MacLean
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XC690/06
OPINION OF THE COURT
delivered by
LORD JUSTICE GENERAL
in
CROWN APPEAL AGAINST
SENTENCE
by
HER MAJESTY'S ADVOCATE
Appellant
against
JOHN ANDERSON
Respondent
_____________
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26 January 2007
[1] This
is an appeal by the Crown against a disposal by the sheriff at Arbroath by
which she sentenced the appellant to 300 hours of community service and a
compensation order of £1,500 to the victim following a restricted plea of
guilty to the indictment which had been served upon him.
[2] The
respondent was served with an indictment which originally comprised three
charges, the first of committing a breach of the peace at a date between 1 and
31 July 2005, the second of contravention of Section 52(1) of the Criminal
Law (Consolidation) Scotland Act 1995 on 11 September 2005 and lastly, and
by far the most serious charge, of assault to severe injury, permanent
disfigurement and danger of life on the latter date. The plea of guilty was under deletion of the
first and second charges and under restriction of the third charge to the
extent of removing from it the alleged aggravation of permanent
disfigurement.
[3] The
circumstances of this offence were that the respondent and the female victim of
his attack were living together, having done so for some six to eight weeks
prior to the incident in question. She
was then some 50 years of age and he a few years younger, about 44. In the course of 11 September 2005 both of
them appear to have consumed a substantial amount of drink and then returned to
the house which they were sharing. There
it was that the offence in question took place.
It involved the kicking and punching of the victim on her head and body
as well as seizing her by the arm and leg.
The victim did not obtain help in early course but ultimately left the
house wearing only a dressing gown and was found by a friend covered in blood
and extremely distressed. A passing
police vehicle stopped, an ambulance was summoned and the complainer was taken
to the Accident and Emergency Department at Ninewells Hospital where she
was found to have suffered five broken ribs to her right side. The broken ribs had caused a puncture to her
lung and various complications which resulted in difficulty in breathing. A chest drain was inserted and the lung
re-inflated. The surgeons required to perform a tracheotomy to allow her to
breathe more easily. She subsequently
developed pneumonia during which the surgical wound also became infected. She was in hospital for just over a month
receiving treatment, at some stages in the Intensive Care Unit and then in the
High Dependency Unit. The treating
surgeon advised that the complainer's life was not in danger as a result of the
rib injuries but that the subsequent pneumonia, which was a direct result of
those injuries, could have been life threatening. That last comment justifies the aggravation of danger to
life which was referred to in the charge to which the plea of guilty was
tendered. It appears also that, as was
described to the sheriff, the complainer suffered psychological consequences of
the assault, having difficulty in sleeping, being prescribed anti-depressants
and being transformed from a person with a happy and out-going nature to one
who was a recluse, afraid to answer the telephone and the door. Unsurprisingly the relationship between the
complainer and the respondent came to an end immediately following that
incident.
[4] The
Advocate Depute submitted that in these circumstances there had been an
extremely serious incident of domestic violence and that there was a complete
absence of mitigation. Drink having been
consumed was no excuse, albeit it might be an explanation. He also drew attention to the circumstance
that the respondent had a number of previous convictions. Two of these were for
assault although these were relatively elderly, the first in 1993 and the
second in 1994, when he had been put on probation for two years with 150 hours
community service order and a £400 compensation requirement. He had also on one further occasion, in
relation to an unrelated matter, also been put on community service.
[5] The
sheriff has referred in her report to various aspects which bore on mitigation
of this offence. These were elaborated
to us by Mr McDonald on behalf of the respondent. He submitted that what had happened was not
outwith the range of the disposals reasonably appropriate to the sheriff and that
accordingly this was not an unduly lenient sentence, albeit it might be
described as lenient. He properly drew
our attention to the circumstance that, because the respondent had not
previously served a term of imprisonment, a custodial sentence was legitimate
under Section 204(2) of the Criminal Procedure Act (Scotland) 1995 only
where no other method of dealing with the respondent was appropriate. He accepted the narration, as had been accepted in the court
below, of the circumstances of this offence.
He drew attention to the plea having been tendered at a continued first
diet. That plea had been tendered only
at that stage because of a number of circumstances which required
investigation. One of these was that,
because the respondent had only limited recollection of the offence in
question, further investigations required to be made, including the obtaining of
police statements of admissions which he had apparently made to officers
shortly after the events in question.
These had taken some time to come to hand. There was also a question as to whether or
not there was any defence to any of the aggravations. As noticed, one of the aggravations was
deleted from the indictment and it was only after advice had been obtained and
considered from a consultant surgeon, and also advice from counsel, that the
view was taken that it was appropriate to give the advice which had led to the restricted
plea being tendered. Mr McDonald also
drew attention to a factor which he described as peculiar to the respondent's
position, namely, that he held a position of importance, that being described
as of a "crucial" employee, in the firm where he had for some time been
employed and that a number of employees might be affected if he were sentenced
to a custodial term. The sheriff was
told about this matter and she refers to it in her report to us - although it
does not appear that she regarded it at the time as of sufficiently striking
importance to refer to it in the course of her sentencing statement.
[6] We
are satisfied by the submissions made on behalf of the Crown that this sentence
was truly an unduly lenient sentence. It
undoubtedly was a very serious incident of domestic violence and involved very
severe injuries and other sequelae to
the complainer. In the respondent's case
the offence is further aggravated by his previous convictions for violence,
albeit some time ago. He appears not to have
learned from the non-custodial orders then made. As the Advocate Depute indicated, there was
not only an absence of mitigation but also a need to deter others from domestic
violence. We take into account all that
has been said in mitigation including the question of the possible affection to
the employment of others - although it is not clear from the information that was
placed before the sheriff or us that such employment would necessarily be
imperilled if a custodial term were imposed on the respondent.
[7] We
are satisfied in the whole circumstances that the only method of dealing
appropriately with the respondent in this case was by a custodial sentence. On the other hand we recognise that, although
his plea of guilty was tendered only at a continued first diet, necessary
investigations required to be made before the requisite advice could be given. In all the circumstances we have come to the
view that, before taking into account the circumstances of the early plea, an
appropriate disposal would have been a custodial sentence of three years
imprisonment. Having regard to the early
plea we shall discount that sentence by six months. Accordingly we shall allow
this appeal, quash the order below and impose a sentence as from today's date
of 30 month's imprisonment.
HR
