APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hardie Lord Mackay of Drumadoon	[2010] HCJAC 87 Appeal No: XC199/10 XC204/10 XC205/10 XC248/10 OPINION OF T HE COURT delivered by LORD HARDIE in NOTE OF APPEAL AGAINST SENTENCE by (FIRST) HUSSNAIN ASHRAF (SECOND) FARIS AHMED (THIRD) RAZA MALIK (FOURTH) MOHAMMED MOHAMMED Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: Shead; Capital Defence Lawyers

Second Appellant: M. MacKenzie; Drummond Miller

Third Appellant: C.M. Mitchell; Aamer Anwar & Co, Glasgow

Fourth Appellant: Scott, Solicitor Advocate; Capital Defence Lawyers

Respondent: G. Henderson, Advocate depute; Crown Agent

26 August 2010

Background

[1] On 28 January 2010, the appellants appeared at a first diet at Glasgow Sheriff Court in respect of an indictment containing the following charges:

"(1) On 15 February 2009 at Brand Street near to Lorne Street, Glasgow you MOHAMMED MOHAMMED, RAZA MALIK, FARIS AHMED and

HUSSNAIN ASHRAF did assault Colin Miller, c/o Govan Police Office, 923 Helen Street, Glasgow did seize him by the body, pull him to the ground, repeatedly punch and kick him on the head and body to his injury and did rob him of a bag containing a quantity of alcohol, medications, cigarettes, personal effects and a mobile telephone;

(2) on 16 February 2009 at Brand Street near to Lorne Street, Glasgow you MOHAMMED MOHAMMED, RAZA MALIK, FARIS AHMED and

HUSSNAIN ASHRAF did assault Dean Sagar-Hill, c/o Govan Police Office, 923 Helen Street, Glasgow and did seize hold of him by the body causing him to fall to the ground and did thereafter repeatedly kick and punch him on the head and body to his injury and did rob him of a bag containing a mobile phone, games equipment, a quantity of medications, a wallet, bank cards and £45 of money; and

(3) you FARIS AHMED being an accused person and having been granted bail on 18 February 2009 at Glasgow Sheriff Court in terms of the Criminal Procedure (Scotland) Act 1995 and being subject to the condition inter alia you remain within your domicile of citation at 8 Percy Street, Glasgow between the hours of 7pm until 7am the following day and present yourself at the front door when requested to do so by Strathclyde Police, did on 31 July 2009 at 8 Percy Street, Glasgow fail without reasonable excuse to comply with said condition in respect that you were not within your domicile of citation during the specified hours:

CONTRARY to the Criminal Procedure (Scotland) Act 1995, Section 27(1)(b)."

The case was adjourned to a continued first diet on 2 February 2010 when the first and second appellants each pled guilty as libelled to charge (1) but maintained their plea of not guilty to the remaining charges upon which they appeared. On the same date, the third and fourth appellants each pled guilty as libelled to charge (2) but maintained their pleas of not guilty to charge (1). All of the pleas were accepted by the procurator fiscal.

[2] The circumstances of charge (1) are that, on Sunday 15 February 2009 at about 8.30pm, the complainer, a 30 year old school teacher, was walking along Paisley Road West when he saw a number of males including the first and second appellants who were on the other side of the street. As the complainer reached the entrance to Festival Park, he was approached and then assaulted by the first and second appellants. The complainer was unable to say who did what but he was seized by the neck, pulled to the ground and thereafter punched and kicked repeatedly on the head and body. Whilst he was lying on the ground, his bag with its contents, including his mobile telephone, was taken from him. The complainer was shocked but shouted for help. His cries were heard and members of the public came to his assistance. The complainer did not sustain serious injury and did not require medical treatment. The police were contacted, but the first and second appellants were not apprehended that evening. Eventually all of the complainer's property was recovered apart from his mobile telephone. When the first and second appellants were interviewed by the police on 17 February 2009 each of them made admissions.

[3] The circumstances of charge (2) are that on Monday 16 February 2009 at about 7.30pm the complainer, a 28 year old sales executive, was walking in the same locality. He was walking away from the city centre. At Festival Park, he noticed a number of individuals, including the third and fourth appellants. He ignored them but was approached by the third and fourth appellants who seized hold of him by the body and pulled him over. He was knocked to the ground without warning. While this was happening, he was punched and kicked repeatedly on the head and body. The complainer had a bag with him containing a wallet, mobile telephone and certain games equipment. The bag also contained the complainer's medication, namely his insulin, as he is diabetic. He was robbed of his bag and, as he lay on the ground being assaulted, he asked his assailants for his house keys and his medication. His assailants laughed at him. The complainer was left feeling frightened and worried about the effect of failing to take his insulin. The prosecutor advised the court that the complainer suffered from type 1 diabetes. The assailants ran off, leaving the complainer at the locus. He remembered having seen a marked police car before the incident and he went to where he had seen it. Fortunately the police were there and he made them aware of the incident. The police officers radioed for assistance and a short time later another police vehicle saw the assailants in a motor car. The car was stopped. Police officers recovered the stolen items from the car and there was full recovery apart from £45 in money. The occupants of the car were apprehended. The complainer sustained injury consisting of redness and bruising to his leg. When the third and fourth appellants were interviewed by the police on 17 February 2009, each of them made admissions.

[4] The sheriff adjourned the diet until 2 March 2010 for each appellant for the purpose of obtaining social enquiry reports, community service reports and reports as to the possibility of a restriction of liberty order. On 2 March 2010, the sheriff had available the said reports in relation to all of the appellants except the fourth appellant. He heard pleas in mitigation of behalf of the first to third appellants inclusive and continued consideration of sentence upon them until 3 March 2010 to enable him to consider the submissions made in mitigation of sentence. As regards the fourth appellant, he further adjourned the diet until 30 March 2010 to enable the Social Work Department to provide the necessary reports. On 3 March 2010, the sheriff sentenced each of the first and second appellants to detention in a young offenders' institute for a period of 509 days and he sentenced the third appellant to detention in a young offenders' institute for a period of 24 months. On 30 March 2010, he sentenced the fourth appellant to detention in a young offenders' institute for a period of 24 months. Each of these sentences had been discounted by 20% to reflect the pleas of guilty.

Submissions on behalf of the first appellant

[5] Mr Shead, on behalf of the first appellant, outlined the procedural background. An earlier indictment had been served but it contained drafting errors. Accordingly a fresh indictment was served specifying the date of the first diet as 28 January 2010 and the trial diet as 15 February 2010. On 27 January the solicitor for the first appellant had a meeting with the procurator fiscal at which he gave an indication that the first appellant intended to tender a plea of guilty to charge (1). At the first diet the case was continued to 2 February to enable the procurator fiscal to explore the possibility of guilty pleas with the representatives of the other appellants.

[6] In inviting the court to allow the appeal, Mr Shead advanced three submissions. The first was that while he acknowledged that the crime was a serious one, nevertheless the sheriff had erred in reaching the conclusion that there was no other suitable method of disposal apart from a custodial sentence. The first appellant was aged 17 and was a first offender. The social enquiry report contained many positive features. Moreover, he had been on bail since his first appearance and it was a condition of bail that he was subject to a curfew requiring him to remain at home between the hours of 7pm and 7am. There had only been one breach of the order which had resulted in an admonition. He had not been in trouble since the commission of the offence. Mr Shead submitted that the sheriff had failed to give adequate weight to these features in this case. If he had looked at the matter "in the round", the sheriff would have reached the conclusion that a non-custodial sentence was appropriate. The second submission was to the effect that even if it was appropriate for the sheriff to impose a custodial sentence in this case, the period selected by him was excessive, having regard to the factors already mentioned. The curfew pending his appearance in court resulted in a restriction of his liberty and was effectively the equivalent of a custodial sentence in the community. Finally, Mr Shead criticised the discount of 20% allowed by the sheriff to reflect the plea of guilty and submitted that there may be room for the view that the overall sentence was excessive because the sheriff did not allow an adequate discount.

Submissions on behalf of the second appellant

[7] On behalf of the second appellant, Miss MacKenzie submitted that the sentence imposed was excessive. A custodial sentence was inappropriate. The appellant was aged 16 at the date of commission of the offence and is a first offender. The offence was out of character for him. He had a supportive family. He was studying for a Higher National Certificate in business studies and working part-time for his uncle. He had a substantial amount of empathy for his victim and had expressed shame and regret at his actions. Since the curfew had been imposed upon him in February 2009, there had been no breaches of the curfew and the appellant had not committed any offences. Miss MacKenzie tendered references from the Youth Community Support Agency and the appellant's uncle. While counsel accepted the gravity of the offence, she submitted that this was not a case where custody was inevitable. Taking into account all of the factors and applying the test in Kane v HMA 2003 SCCR 749, counsel invited the court to conclude that the sheriff had erred in determining that a custodial sentence was inevitable in this case. As an alternative counsel submitted that, if custody was appropriate, the starting point of 21 months selected by the sheriff was excessive.

Submissions on behalf of the third appellant

[8] On behalf of the third appellant, Miss Mitchell adopted the submissions on behalf of the first and second appellants in relation to the sheriff's conclusion that he had no other option apart from imposing a custodial sentence. Her alternative submission was that, if custody was appropriate, the period of 30 months selected by the sheriff as a starting point was excessive. The appellant had been on bail and subject to a curfew. The duration of the curfew had been longer than one year and exceeded the period which the sheriff could have imposed following conviction. Counsel for this appellant relied upon the terms of the sheriff's report at paragraphs 8 and 9 which were to the following effect:

"[8] I considered the matter of sentence overnight. I was very conscious that the appellant was a first offender and was only 16 years of age at the time when he committed this crime. The terms of the social enquiry/community service assessment were favourable and it appeared that the appellant deeply regretted his involvement in this matter and recognised that he had brought shame upon his family. The appellant came from a good family background and had obvious academic potential. He had made admissions to the police when first questioned. He had been subject to a curfew as a condition of bail for about one year. He had not been in any trouble since. Using the assessment tools applied by the Social Work Department, he was regarded as being at low risk of re-offending.

[9] Having considered all the circumstances, including the many positive factors advanced relating to the appellant, I concluded that the only appropriate disposal was a custodial one. No other disposal was appropriate having regard to the gravity of this crime. Assault and robbery is a most serious crime. In this instance the complainer was going about his lawful business. There was no provocation. This 28 year old sales executive was walking along the road carrying a bag at 7.30pm on a Monday night. I concluded that this sort of crime simply could not be tolerated and that where a number of people become involved in an attack on an innocent citizen, it was necessary for the court to do all it could to discourage this type of behaviour. I regarded this as a particularly nasty assault and robbery and the assailants' reaction to the complainer's plea for his medication was simply disgraceful."

From these paragraphs, counsel submitted that the sheriff had been influenced by the gravity of the crime and had been concerned with issues of punishment, protection of the public and deterrence. Nevertheless, however serious a crime may be, the personal circumstances of an accused must be weighed in the balance. In the case of young offenders, Parliament has required sentencers to be satisfied that no disposal other than custody is appropriate before imposing a custodial sentence. In this case the sheriff had not had proper regard to that requirement. Apart from the commission of a serious offence, nothing more positive could have been said on behalf of this appellant. He hoped to start studying pharmacy at Robert Gordon's University, although he recognised that the conviction would always be with him. Counsel further submitted that the question of deterrence was less significant in the context of a first offender (Kane v HMA). The sheriff should not be making an example of a first offender. The sheriff had erred in giving more weight to the nature of the offence than to the youth and other mitigating factors relating to the appellant.

Submissions on behalf of the fourth appellant

[9] On behalf of the fourth appellant, Mr Scott adopted the submissions made on behalf of the third appellant. This appellant had only been subject to a curfew for several weeks because in March 2009 he moved to London and the special condition of bail was removed. This appellant was aged 16 at the date of the offence. He had not been in trouble previously or since. He was aged 17 at the date of sentence and would be 18 on 31 July 2010. The reports in respect of this appellant were extremely positive. He had attended college studying joinery and carpentry. The next part of his course was due to commence in September 2010. However, if he is returned to custody, it was acknowledged that he may not lose the opportunity of continuing with his studies. The appellant regretted his behaviour which followed his consumption of alcohol. In his report the sheriff stated that he had considered the reported decisions in Morrison Sentencing Practice at paragraphs F12.0045-F12.0058. Mr Scott submitted that the sheriff should have considered cases beyond that, particularly Caroll v HMA at F12.0070.2

Discussion

[10] This appeal concerns the appropriateness of the imposition of a custodial sentence on young offenders. As the sheriff and counsel representing the appellants recognised, Parliament has imposed restrictions upon imposing custodial sentences on young persons. Section 207(1) of the Criminal Procedure (Scotland) Act 1995, provides that it is not competent to impose imprisonment on a person under the age of 21. However, section 207(2) enables a court to impose detention upon a person aged between 16 and 21 in circumstances where imprisonment would be appropriate for someone aged 21 or more. Section 207(3) is in the following terms:

"The court shall not under sub-section (2) above impose detention on an offender unless it is of the opinion that no other method of dealing with him is appropriate and the court shall state its reasons for that opinion, and, except in the case of the High Court, those reasons shall be entered in the record of proceedings."

Section 207(4) requires the court to obtain a report, or such other information as it can, about the offender's circumstances and to take into account any information before it concerning the offender's character and physical and mental condition to enable the court to form an opinion under section 207(3). These are undoubtedly important provisions in relation to the sentencing of young offenders. Clearly there will be many cases where the personal circumstances of an accused are such that notwithstanding the gravity of the particular offence, it could not be said that only the imposition of a period of detention would be appropriate. Equally, there will be cases involving offences of similar gravity where detention will be inevitable. We have in mind cases where an offender has a number of previous convictions which disclose an escalating record of offending. Having said that, we would not wish to give any support to any suggestion that it is never appropriate to impose a custodial sentence upon a young offender who is also a first offender. That was not the intention of Parliament in enacting the statutory provisions to which we have referred. Nor do we consider that the determining factor should be the favourable background and personal circumstances of the accused. In some respects, it is more difficult to comprehend the criminal acts of a first offender who has had a caring and privileged upbringing, as each of the appellants in this case have enjoyed, than those of an accused who has had a neglected or abusive childhood. What is required in each case is for the sentencing judge to consider all of the circumstances relevant to the offender as well as to the offence and to determine whether, in the case of a young offender, there is an appropriate disposal other than detention.

[11] The circumstances in Kane were significantly different from the present case. In that case it is clear from the opinion of the court delivered by the Lord Justice Clerk that the sheriff was erroneously of the opinion that the guidance of this court was to the effect that there was only one possible sentence for robbery, namely a lengthy custodial sentence. Accordingly, the sheriff had failed to take into consideration the personal circumstances of the appellant in determining sentence. Moreover, the court observed:

"He [the appellant] has a disturbed family background. He suffers from alcoholism, a condition for which, it appears, his father is largely responsible. He has the opportunity to receive treatment for his problems and to reform his life. There are encouraging reports on his motivation to give up drinking. A community-based disposal, in our view, offers reasonable grounds for hope that, under suitable guidance, he will overcome his drink problem, acquire a sense of responsibility and get a steady job." (Para [12])

[12] In the present case, the sheriff did not repeat the error made by the sheriff in Kane. Rather he balanced the circumstances of each appellant against the nature and circumstances of the offence committed by him and reached the conclusion that detention was the only appropriate disposal.

[13] There can be no doubt in this case that the sheriff obtained more than the minimum information required under section 207(4) to enable him to form an opinion as to whether any disposal other than detention was appropriate in this case. Not only did he obtain a social enquiry report, but he obtained a community service report and a report about the suitability of each of the appellants for a restriction of liberty order. In addition, he was addressed in mitigation of sentence on behalf of each of the appellants by their respective solicitors. Moreover, it is clear that the sheriff gave the case anxious scrutiny. In the case of the first three appellants, he considered matters overnight before sentencing each of them to a period of detention. He could not deal with the fourth appellant on that occasion because the necessary reports were not available through no fault of the fourth appellant.

[14] In addition to considering the various reports and the information provided to him in mitigation of sentence, the sheriff also had regard to the nature and circumstances of the charge to which each appellant had pleaded guilty. Although the charge to which the first and second appellant pled guilty occurred on 15 February 2009 and the charge to which the third and fourth appellant pled guilty occurred on the following day, essentially each of the charges involved an assault and robbery of a complete stranger in a public street at the same location. Each of the assaults was carried out by two people acting in concert. In each case, the complainer was walking along the street when he was attacked by two of the appellants, who forced him to the ground and thereafter repeatedly punched and kicked him on the head and body to his injury and robbed him of a bag containing various items. The second incident involving the third and fourth appellants was further aggravated by the fact that the complainer was diabetic and asked them to return his house keys and medication but they merely laughed at him and refused to do so. It is clear that the sheriff gave this case very careful consideration and sought to balance the personal circumstances of each of the appellants against the serious nature of the offence committed by him. That was the nature of the exercise that Parliament enjoined him to undertake in order to determine whether a disposal other than a period of detention was appropriate for any or all of the appellants.

[15] We do not understand there to be any criticism of the fact that the sheriff undertook such an exercise. Rather the criticism was that in undertaking the exercise, he had not attached sufficient weight to the personal circumstances of each appellant. Conversely, he had attached too much importance to the gravity of the offence. As Miss Mitchell observed in her submissions to the court on behalf of the third appellant:

"Save for the gravity of the offence nothing more positive could be said in favour of him."

That observation recognises that the gravity of an offence could, in certain circumstances, offset any positive features favourable to an accused. It seems to us that in relation to each of the appellants the question that arises is whether the circumstances of the offence to which the appellant pled guilty were sufficiently serious as to entitle the sheriff to reach the conclusion that a period of detention was the only appropriate disposal, notwithstanding the positive features relating to that appellant. We acknowledge, as did the sheriff, that there are many positive features in favour of each appellant. Each of them was aged 16 at the date of the offence and was a first offender. Each of them came from caring and supportive families and the social enquiry report in each case was favourable. Moreover, each of them had been subject to a curfew while on bail, although in the case of the fourth named appellant, this had been for a much shorter period due to his relocation to London. As regards that latter issue, we note that the sheriff took into account the fact that the appellants had been subject to curfew orders and we agree that it was appropriate for him to do so. However, such restrictions should be viewed in the context of a bail order enabling the accused to be at liberty pending the final disposal of his case and should not be equiparated with a custodial sentence, as appeared to be suggested in the submissions on behalf of the first appellant.

[16] We have given careful consideration to the approach adopted by the sheriff and in particular to the question whether he erred in reaching the conclusion that he did about the inevitability of custody in this case. Having done so, we are quite satisfied that the sheriff gave very full consideration to all the relevant factors. We fully understand and agree with his view that unprovoked assaults upon members of the public, who are walking in a public street, for the purpose of robbing them are very serious crimes. In this case each of the assaults included repeated kicks to the head and body of the complainer. Even although no serious injury was sustained, the act of kicking someone on the head is inherently dangerous and the lack of serious injury as the consequence of such an assault is the result of good fortune rather than the intention of the assailant. The perpetration of such an assault of such a nature to enable the assailant to rob his victim is an aggravation of the crime.

[17] Issues of retribution and deterrence are relevant considerations, although not by any means the dominant considerations, in determining the appropriate sentence in any case of assault and robbery, including those where the accused are young offenders and first offenders. We reject the submission on behalf of the third appellant that deterrence is invariably of less significance in such cases. Kane v HMA is not authority for that proposition. In that case the court observed:

"The sheriff thought that considerations of retribution and deterrence were decisive. These are material considerations; but there is more to sentencing than sending messages to society, particularly in the case of a young offender. The court has to consider the personal circumstances of such an offender; his home background; the extent to which he may not be solely responsible for his behavioural problems; and the opportunities that a non-custodial sentence may give for rehabilitation before he becomes trapped in a cycle of crime."

These observations must be read in the context of the sheriff's error mentioned above (para [11]). Moreover they recognise that retribution and deterrence are relevant, even in the case of young offenders. In Kane the court was simply emphasising the need to take into account the whole circumstances of the case, including the personal circumstances of the offender. The court recognised that, in the case of young offenders, there may be special circumstances affecting the culpability of the offender and his prospects of rehabilitation. Unlike the appellant in Kane none of the appellants was able to suggest that he was not solely responsible for his behavioural problems resulting in the commission of his crime. No explanation was advanced for the behaviour of any of the appellants. In all the circumstances we are not persuaded that the sheriff erred in his conclusion that no other method of dealing with each appellant was appropriate apart from detention.

[18] Having concluded that the sheriff did not err in determining that a period of detention was appropriate in each case, the next issue for our determination is whether the periods selected by him were excessive. At the outset, we note that the sheriff distinguished between the first and second appellants on the one hand and the third and fourth appellants on the other. The sentence imposed in the former case was a sentence of 509 days detention in respect of each of them, being 21 months detention reduced by 20% to reflect the plea of guilty. In the latter case, the sentence imposed was 24 months detention, being 30 months detention reduced by 20% in respect of the plea of guilty. That distinction was intended to reflect the additional aggravation of the refusal to return the insulin to the complainer, when he explained that he was ill and required it. No point was taken in the note of appeal about this distinction. Moreover, when clarification of this matter was sought during the hearing of the appeal, the court was advised that no point was being taken in this respect. However, taking into account the circumstances of the offence and the personal circumstances of each of the appellants, we have reached the conclusion that the sentence selected by the sheriff in each case as a starting point was excessive, particularly the starting point chosen for the third and fourth appellants. In our opinion, the starting point in the case of the first and second appellants should not have been in excess of 18 months and that for the third and fourth appellants in excess of 20 months and we propose to adopt these figures..

[19] Mr Shead was alone in submitting that 20% was inadequate as a discount. Although the first appellant was first to canvass the possibility of a guilty plea, he only did so on the day before the first diet. It is of no moment that he, and the other appellants, made admissions to police officers when they were detained. What is relevant for the purpose of discount is the stage at which the guilty plea is offered to the Crown. The discount allowed by the sheriff was appropriate having regard to the fact that no such offer was made until the day before the first diet, especially as a previous indictment had been served, albeit one which contained errors. It is well established that, in order to receive the benefit of the maximum discount, an accused should tender his guilty plea at the earliest opportunity. If, as seems to underlie this submission on behalf of the first appellant, he admitted his involvement when interviewed by the police, he ought to have instructed his solicitor to tender a guilty plea in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 as soon as he appeared on petition. Had he done so, he would have received a greater discount.

[20] In all the circumstances, we shall allow each of these appeals and quash each of the sentences. In respect of the first and second appellants we shall substitute sentences of 14 months detention and in respect of the third and fourth appellants sentences of 16 months detention. The sentences in respect of the first, second and third appellants will run from 3 March 2010 and that in respect of the fourth appellant from 30 March 2010.