APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Mackay of Drumadoon	[2010] HCJAC 111 XC228/10 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by DALE HIBBARD Appellant; against HER MAJESTY'S ADVOCATE, Respondent: _____________

Appellant: Jackson Q.C., CM Mitchell; John Pryde & Co. SSC (for Ian McCarry & Co., Glasgow)

Respondent: A Miller, Solicitor Advocate, A.D.; Crown Agent

14 October 2010

1. General

[1] On 5 March 2010, after a trial lasting several days at the High Court in Glasgow, the appellant was sentenced to be detained without limit of time in terms of section 205(2) of the Criminal Procedure (Scotland) Act 1995 for the murder of Anthony Ford. The trial judge fixed the punishment part of his sentence at 11 years in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (see section 6(1)(b)(i)). He fixed an identical period for a co-accused, namely David McKenzie, for his part in the murder. A third accused, John Gallagher, was sentenced to 9 years detention for culpable homicide. A fourth, Daryl Barney, was made the subject of a community service order, having been convicted of an assault. A fifth accused was acquitted.

2. The Murder

[2] The circumstances, as explained by the trial judge, were that on the evening of 7 July 2009, the appellant, who was then aged only just 15 years of age, had been engaging in gang violence, involving the use of sticks. He then joined an assembly of other youths, including the four co-accused, at the corner of Golspie Street and Shaw Street, Govan. At this time, the deceased was walking his dog past the group, in the company of a friend. The deceased was aged 32. He had had a long standing heroin addiction, although his family spoke of him in more positive terms. He had been acquitted of the assault and attempted murder of Mr Gallagher's father; an episode which had left the father with serious permanent brain damage.

[3] Mr Gallagher, who was then aged almost 17, made off after the deceased with the appellant in tow. Both had sticks as they pursued the deceased into the pedestrian zone of Nethan Street and onto Harhill Street. The others followed at a more leisurely pace. There was building work in the vicinity and scaffolding equipment was piled on the roadway. The group threw scaffolding clamps at the deceased as they closed in upon him. The deceased picked up a pole and tried to escape through the group. Although he managed to hit Mr Barney with some force, he was disarmed, punched and tripped. He fell to the ground.

[4] The group, including the appellant, then set about assaulting the deceased by kicking him repeatedly on the head and body as he lay on the ground. One of them, probably Mr McKenzie, who was not yet 15, struck him a fatal blow to the head with a scaffolding pole. At this point most of the group broke off the attack; the deceased by this time lying unconscious on the ground. But the appellant continued to attack by punching him repeatedly on the face.

[5] The deceased suffered a depressed and comminuted fracture to the top of the skull and a fracture of the cheekbone, probably caused by the pole. He had no prospect of survival. He also had extensive bruising to the arms and legs and fractured ribs and facial bones, caused by the other aspects of the assault.

3. The appellant's background

[6] There was a detailed Social Enquiry Report before the trial judge. It had been compiled after several meetings with the appellant, examination of the Social Work Department's records, consultation with his previous social workers and discussions with his teachers. The appellant's parents separated soon after his birth. His mother went on to give birth to his two younger half-sisters to different fathers, whom he knew. He was soon put on the Child Protection Register for physical neglect. His mother was a drug addict. He had once found her unconscious on the floor as a result of an overdose when he was aged 9. He often saw his mother assaulted as a result of neighbourhood disputes.

[7] The appellant's primary education was disrupted because of his moving between a number of schools. Although academically capable, he was disruptive and assaulted other pupils. He was a promising footballer but was not able to take advantage of possible professional opportunities in that field because of lack of money. In July 2004 he was made the subject of a supervision order. That order was still in force at the time of the murder. Meantime, the appellant had had no contact with his own father and no male role model at all throughout his childhood.

[8] In January 2007 the appellant went to live with his maternal grandmother, who had alcohol problems and argued with him to the point of assault. His half-sisters went to live with paternal relations and he had limited contact with them. In November 2008, he returned to live with his mother, despite her continuing problems. From the age of about 14, he drank alcohol, notably Buckfast and large quantities of cider, to excess. He became involved in anti social behaviour, notably gang violence in Govan, where he was a prominent member of the "Young Crossie Posse".

In relation to the murder, the Social Worker remarks:

"The subject appears to have been motivated by a desire to establish himself as a well liked, popular and confident young man whilst seeking affirmation, warmth and respect. [He] appears to have been of the belief that this was only attainable through involving himself in territorial conflict and violence".

He was appropriately remorseful.

4. The Sentence and the Appeal

[9] Having referred to all the various circumstances, the trial judge reports:

"[27] I took account of the fact that the appellant was only 15 when this incident happened, by reducing the punishment part from what it would otherwise have been. I had regard to such guidance as could be gleaned from Morrison, Sentencing Practice and my own assessment of the evidence... I paid particular attention to what had been said by the court in HMA[dvocate] v Boyle [2010 SCCR 103] at paragraph 14. I also had regard to what the court had said and done in the case of HMA[dvocate] v Clark 2010 SCCR 210".

In the Note of Appeal, it was contended that the sentencing judge had paid insufficient weight (sic) to the fact that the appellant was a juvenile. The complaint was solely that the punishment part was too long. The Note states:

"3. ...Every court in dealing with a child or young person shall have regard to the welfare of the child or young person...

4. Reference is made to:

(i) R v Secretary of State of the Home Department ex p V and T 1997 (HL)

(ii) United Nations Convention on the Rights of the Child (1989) Article 3.1; 40.1

(iii) United Nations Standard Minimum Rules for he Administration of Juvenile Justice - Rule 19.1;".

[10] The trial judge responds as follows:

"I was not invited to consider the materials referred to in paragraph 4 of the grounds of appeal but was aware of the general principles referred to which are implicitly recognised in the case of HMA[dvocate] v Boyle.

[28] I was bound by section 205(2) of the Criminal Procedure (Scotland) Act 1995 to detain the appellant without limit of time. Section 6(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 applied section 2 of that Act to the appellant so that I was obliged to fix a punishment part. Section 2(2)(a) of the 1993 Act obliged me to have regard to the seriousness of the offence in determining the appropriate period to be fixed for the purposes of punishment and deterrence, section 2(2)".

In selecting identical punishment parts for the appellant and Mr McKenzie, the trial judge observed that, although it was Mr McKenzie who probably delivered the fatal blow, Mr McKenzie was younger than the appellant, had no previous history of recidivism and only had a brief, albeit fatal, part in the attack.

[11] At the appeal hearing, the focus of the submission departed from that in the Note of Appeal and fixed first upon a sharp issue of principle. This was that the trial judge had erred in selecting a punishment part on the basis of looking at cases involving adults and then reducing the period by an arithmetical proportion. In murder cases, the sentencing regime was different as between adults and children. The former were sentenced to life imprisonment whereas the latter were made the subject of detention without limit of time. It had been recognised, it was said, in V v United Kingdom [2000] 30 EHRR 121 that the setting of a tariff was a violation of Article 6.1.

[12] Article 3.1 of the United Nations Convention provided that, in all court actions concerning children, "the best interests of the child shall be a primary consideration". Article 40 recognised the right of every child, who had been convicted of an offence, to be treated in a manner consistent with the promotion of the child's sense of dignity and worth and in a manner which takes into account his age and the desirability of his reintegration into society (see also Article 37). These articles echoed the earlier (1985) Beijing Rules (rules 17.1 and 19.1). They indicated that there was a different sentencing regime for children since, in the case of adults, the welfare of the convicted person would not be a primary consideration. Having regard to the Convention provisions, only a nominal punishment part should be set in the case of child offenders. The appellant concluded with a second point that, in any event, the punishment part imposed was excessive having regard to: (a) the appellant's participation in the murder only art and part and as distinct from Mr McKenzie's role; and (b) the appellant's difficult upbringing. It was significant that the appellant's behaviour had improved within the stable environment of St Philip's Secure Unit. A favourable report from the Unit was produced to that effect.

(5) Decision

[13] The court is immediately conscious that the main thrust of the submission made was not foreshadowed anywhere in the Note of Appeal. There is therefore no report from the trial judge dealing with the point of principle now raised. It is true that it featured in the written case and argument lodged in advance of the appeal hearing. However, the provisions relative to that argument (Act of Adjournal (Criminal Procedure Rules) 1996, rule 15.16) are not intended to provide an appellant with an opportunity to raise matter for which leave to appeal has not been granted. If there is to be a submission which departs radically from the grounds contained in a Note of Appeal, the proper course is to apply to amend the grounds so that the court can consider whether: (a) that should be permitted at all; and (b) if so, whether the case should be remitted to the trial judge for a report prior to the amended ground being considered by the sifting process.

[14] However, that having been said, the court considers that there is some force in the general contention that the fixing of a punishment part in the case of a child may involve different considerations, or at lease a different method of weighing the relevant considerations, from those in the case of an adult. The starting point is, of course, the legislation itself. Section 6 of the 1993 Act applies Part I of the Act, in so far as it deals with persons sentenced to life imprisonment, to children detained without limit of time. That being so, in the case of both adults and children, the punishment part selected must, in terms of section 2(2), reflect the period of custody which the court considers:

"to satisfy the requirements for retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public), taking into account -

(a)   the seriousness of the offence...".

The court must apply the law as set out in the statute even if, in construing how that might be done, it can have regard to the terms of an International Convention not incorporated into domestic law (T, Petitioner 1997 SLT 724, per Lord President (Hope) at 734). But even without that regard, the court has no difficulty with the proposition that, when sentencing a child for any offence, the sentence selected ought to take into account, as a primary consideration, the welfare of the child and the desirability of his reintegration into society. It is not the only primary consideration, since the legislation requires that the seriousness of the offence be taken into account and that the period selected satisfies the requirements for retribution and deterrence. But it is one. In this way, the sentencing of a child will differ in the degree of emphasis or weight placed on the welfare of the person sentenced. With an adult, it is also a consideration, but it may not always be categorised as a primary one, at least where murder is concerned.

[15] In a sense therefore, it is correct to say that the sentencing process should not simply involve an exercise of looking at past cases involving adult offenders committing similar crimes and then deducting a percentage, which is deemed appropriate to differentiate adult from child, from the level of the adult sentence. Nevertheless, if precedents for similar crimes involving adults on the one hand and children on the other are analysed, there is bound to be a recognisable arithmetical difference in the two levels. Those for a child will be proportionately lower, even if the exercise has not involved a direct comparison. It is not illegitimate, therefore, for a court to look at the sentences for adult offenders, since by doing so it will gain some knowledge of the recognised levels. With that information, it will realise that any sentence imposed on a child, with his welfare as a primary consideration, ought normally to be significantly below those levels. The court does not consider that the trial judge did other than perform that type of exercise before selecting the punishment part.

[16] The issue for the court is whether the period selected by the sentencing judge was excessive. The court is unable to reach that conclusion. The trial judge has explained why he considered that the appellant should receive the same punishment part as Mr McKenzie. His reasoning cannot be faulted. Although Mr McKenzie probably delivered the fatal blow, he was younger and had no history of gang involvement. His participation in the attack appears to have been limited to the one blow, whereas the appellant, with his prominence in the gang scene, was involved from beginning to end.

[17] Even with a child offender, the minimum period of custody for the crime of murder is likely to be significant in recognition of the need for retribution for the deliberate or wickedly reckless taking of another person's life and, to a degree, for the deterrence of, in a case such as this, wanton gang violence by youths on the city streets.

[18] The appeal must therefore be refused.