APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Mackay of Drumadoon Lord Bracadale	[2013] HCJAC 23 Appeal No: XC315/12 and XC317/12   OPINION OF THE COURT   delivered by LORD BRACADALE   in   CROWN APPEALS AGAINST SENTENCE   by   HER MAJESTY'S ADVOCATE Appellant;   against   GQ and MM Respondents:   _______

 

Appellant: J Scullion, AD; Crown Agent

First Respondent: S Hughes; G Keenan & Co, Greenock

Second Respondent: D Nelson; The Robert Kerr Partnership, Paisley

 

19 February 2013

The convictions
[1] The respondents, together with a co-accused, LD, were indicted to a preliminary hearing at the High Court at Glasgow on 6 October 2011. Charges 1, 2 and 4 related to LD alone. Charge 3, as originally libelled against all three accused, was in the following terms:

"on 20 November 2010 at a roundabout in Brown Street near William Street, Port Glasgow, you did assault Thomas David Thruel, c/o Strathclyde Police, Greenock, attempt to punch him, force him to move onto the area of said roundabout, repeatedly punch and kick him on the head and body, cause him to fall to the ground, again repeatedly punch and kick him on the head and body, repeatedly jump and stamp on his head and body, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and did attempt to murder him."

 

At the preliminary hearing each of the respondents offered to plead guilty to the charge under deletion of the words "permanent impairment" and "and you did attempt to murder him". These pleas were not accepted by the Crown.

[2] Between 26 January and 2 February 2012 the case went to trial at the High Court at Glasgow against all three accused. On 31 January 2012, at the close of the Crown case, the advocate depute moved to amend charge 3 by deleting the words "permanent impairment" from the libel. Thereafter, no evidence was led on behalf of the co-accused LD, or the respondent MM; the respondent GQ gave evidence on his own behalf. At the close of the defence evidence LD pled guilty to charges 1, 2 and 3 on the indictment and not guilty to charge 4. These pleas were accepted by the Crown. His plea of guilty to each of charges 1 and 2 was as libelled and his plea of guilty to charge 3, which was under various deletions, was in the following terms:

"On 20 November 2010 at a roundabout in Brown Street near William Street, Port Glasgow, you did assault Thomas David Thruel, c/o Strathclyde Police, Greenock, attempt to punch him, force him to move onto the area of said roundabout, repeatedly punch and kick him on the head and body, cause him to fall to the ground, all to his injury".

 

[3] Counsel for the respondent GQ was permitted by the trial judge, in terms of section 268 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), to call LD as an additional witness.

[4] On 1 February 2012, after the advocate depute had addressed the jury, having heard parties on submissions by counsel for the respondent MM in terms of section 97A(2)(a) and (b) of the 1995 Act, the trial judge upheld the submission in respect of the words "and did attempt to murder him" and directed that the indictment be amended by deleting these words in respect of the respondent MM. The respondent MM then pled guilty to charge 3 on the indictment, as amended. The plea, which was accepted by the advocate depute, was in the following terms:

"on 20 November 2010 at a roundabout in Brown Street near William Street, Port Glasgow, you did assault Thomas David Thruel, c/o Strathclyde Police, Greenock, attempt to punch him, force him to move onto the area of said roundabout, repeatedly punch and kick him on the head and body, cause him to fall to the ground, again repeatedly punch and kick him on the head and body, repeatedly jump and stamp on his head and body, all to his severe injury, permanent disfigurement and to the danger of his life".

 

[5] The trial continued against the respondent GQ and on 2 February 2012 the jury found him guilty of charge 3 under deletion of the words "and did attempt to murder him". The effect of this was that the respondent GQ was convicted by the jury of charge 3 in the same terms as the plea of guilty tendered by the respondent MM and accepted by the Crown.

[6] Thus, the outcome of the trial process was that the respondent MM pled guilty to, and the respondent GQ was convicted by the jury of a charge in the same terms as the plea which each had tendered at the preliminary hearing on 6 October 2011.

Sentence
[7] After continuation for preparation of background reports the trial judge made probation orders in respect of each of the respondents and LD. Each order included a condition to undertake unpaid work in the community. The respondent GQ was made the subject of a probation order for three years with a condition of carrying out 200 hours of unpaid work; the respondent MM was made the subject of a probation order for two years with a condition of carrying out 150 hours of unpaid work; and LD was made the subject of a probation order for two years with a condition of carrying out 120 hours of unpaid work.

[8] We were advised that both respondents have complied well with the probation orders. Each has now completed all his hours of unpaid work. Both had successfully undertaken offence related work and their response to probation had been positive. Both are in full time employment. A motion by the Crown to suspend the remaining part of the sentences in terms of section 121A of the 1995 Act was refused by the court on 3 October 2012.

 

The appeal
[9] By notes of appeal in terms of sections 108 and 110 of the 1995 Act the Crown appealed against the disposals in respect of each of the respondents GQ and MM as being unduly lenient. The disposal in the case of LD is not the subject of appeal. Essentially, the ground of appeal in each case was to the effect that the cctv footage of the incident showed a sustained, brutal and life threatening attack involving repeated kicking, stamping and jumping on the complainer's head whilst he lay prone on the ground, and in those circumstances a substantial custodial sentence was inevitable.

 

The circumstances
[10] Much, though not all, of the incident was captured on street cctv cameras. The available footage was played before us and we also had the benefit of the trial judge's report. In his report the trial judge noted that certain parts of the action took place off-camera because the camera view was obstructed by buildings, trees or steel girders and other sequences were simply too obscure because of poor light, distance, camera angle etc. to allow a clear impression of what was happening to be formed. He went on to explain that the whole of the cctv footage was spoken to by the complainer, Mr Thruel, and by LD, as well as by others who had no, or limited, first-hand knowledge of the events depicted. Each gave his own version of what had happened, what was shown in the footage, and what were their perceptions, fears and intentions at the time certain things happened.

[11] The trial judge went on to record that the circumstances which emerged from the evidence were as follows:

"They [the respondents and LD] had been drinking. They were later seen on camera coming out of the local Tesco store. A short time later, at the roundabout they encountered Mr Thruel. There came a point when the three accused were on the roundabout, behind a small fence (perhaps about knee or thigh height), looking out towards the road, while Mr Thruel was on the road, on the other side of the fence, facing them. They were arguing. An altercation ensued. According to the Crown, though this was disputed, one of the accused went through a gap in the fence to one side with a view to coming round behind Mr Thruel. At about this time Mr D grabbed a mobile phone from Mr Thruel's girlfriend and threw it away onto the road. A fight broke out between the three accused and Mr Thruel. They moved away from the island in the middle of the roundabout and onto the road. The cctv showed the three accused and Mr Thruel circling each other on the road, moving in and out of camera shot. Mr Thruel had his right hand behind his back, in the waistband of his trousers. In due course Mr Thruel was brought to the ground, whereupon Mr Q, and Mr M to a lesser degree, set about kicking and punching him as he lay helpless. This part of the incident occurred just as a car approached the roundabout. LD pushed the girlfriend away but did not otherwise hit her or appear to land any blows on Mr Thruel. He walked towards the car, which had stopped and reversed a short way, as if to warn the driver off from coming closer. GQ kicked and punched Mr Thruel repeatedly as he lay on the ground, some of the kicks and punches being to his head. MM offered a few (somewhat desultory) kicks at Mr Thruel before walking away. When another car approached, Mr M went back to try to stop Mr GQ punching and kicking, and eventually succeeded in pulling him away [this is an error in the trial judge's report: it was LD who pulled GQ away]. The three accused disappeared, leaving Mr Thruel lying on the road. By this time cars had appeared on the scene and Mr Thruel was taken to casualty. His face was battered and covered in blood. At casualty he received stitches for his wounds. He discharged himself against advice early the next morning and went home. The injuries looked in the photographs worse than they in fact were. According to Mr Thruel they healed within a couple of weeks. The medical evidence was that the injuries were not life-threatening; and, indeed, Mr Thruel would have made a full recovery within the same sort of timescale without any medical intervention."

 

The trial judge made this comment:

"It should be emphasised that the repeated and painstaking frame by frame examination of the cctv footage made it seem as though the incident lasted for a long time. In fact, the whole incident from beginning to end lasted no more than a few minutes, and the period when Mr Thruel was lying helpless on the ground while being punched and kicked lasted perhaps no more than ten seconds or so."

 

[12] It appears from the trial judge's report and from the notes of evidence taken at the trial on behalf of the respondents that in the early stages of the incident Mr Thruel instructed his girlfriend to call for reinforcements and she started to make a call on her mobile telephone. The telephone was taken from her by LD who stated in his evidence that the call had connected and he reacted by throwing the telephone away. In addition, there was some evidence which may have led the respondents and LD to think that the complainer was armed with a knife. The trial judge reported:

"At one point during the early stages of the altercation, Mr Thruel is seen to lunge at the three accused, specifically towards Mr GQ with his arm raised. It was put to Mr Thruel in cross-examination that he had a knife in his hand or that it might have seemed so to the accused. Mr LD, at one point in his evidence (though he was not entirely consistent on this) said that he saw Mr Thruel take a swipe at Mr GQ as though he had a knife. He thought he did have a knife. He also said that Mr Thruel called to his girlfriend to 'Gie's that knife'. It is not clear whether in fact Mr Thruel had a knife, and there is no evidence that one was found at the scene. However, it appears that Mr Thruel was wearing a 'ring' (in reality three rings all joined together with a bar and bearing a passing resemblance to a knuckle duster). The flash of light on this might have suggested a knife. Given the background which I have described, it is likely that the accused genuinely believed that Mr Thruel had a knife which he was using or going to use to attack them.

 

The impression that Mr Thruel was armed would have been reinforced by the events which followed, where the three accused and Mr Thruel were circling around on the road. Throughout the course of this episode, Mr Thruel kept his right hand behind his back, in the vicinity of his waistband, as though clasping a knife. Mr LD said that he thought that Mr Thruel had picked up the knife from his girlfriend's bag. This had been thrown on to the road and Mr Thruel was shown on the CCTV footage bending down and possibly taking something from it. Again, given the background, it would not be surprising if the accused inferred from his actions that Mr Thruel was armed with a knife."

 

 

The trial judge's reasons
[13] The trial judge advanced a number of reasons for deciding that a custodial sentence was not appropriate: first, because the circumstances of the offence and the background information placed before him prior to sentence seemed to disclose significant mitigating circumstances; second, because of the young age of the accused and their lack of any criminal record; third, because of their apparent good character; and fourth, because of the provisions of section 207(3) of the 1995 Act.

[14] The trial judge had particular regard to material which was placed before him in the course of the pleas in mitigation on behalf of each of the respondents. In his report the trial judge recorded the following in relation to the respondent GQ:

"In the case of Mr GQ, affidavits from his older brother and his mother showed that Mr Thruel was a member of a gang known as 'The Young Port Team'. The members of the gang were older than GQ. Their bullying had initially been directed at another older brother of the accused, and then at Mr Q. It started when he was in second year at St Stephen's School in Port Glasgow, and continued thereafter when he went into third year, even though some of the members of the gang had left the school. It went on for about 18 months. The bullying involved physical attacks on Mr Q and the gang would come into the school looking for him even when the members of the gang had ceased to be pupils. This created a climate of fear in which GQ would, for a while, only go out if accompanied by his mother. The fear was aggravated by on-line video footage of some members of the gang in possession of knives and machetes though it is not suggested that these weapons were used to attack GQ. There was a long period when he had to be taken to and picked up from school by his mother, father or brother to avoid him having to take the bus where he did not feel safe. For a period of about a month he had to be escorted from class to class by a teacher, and for his own safety he was told to stay in the canteen at lunchtime since there would always be members of staff there to look out for him. By the time of the incident Mr GQ, albeit only 16, had acquired considerable strength and become an accomplished boxer (see below), but I am satisfied nonetheless that he continued to be in fear of the gang."

 

In relation to the respondent MM the trial judge recorded:

 

"In the case of Mr M, the history of bullying is set out in a supplementary criminal justice social work report dated 18 April 2012 for which I called before sentencing the accused. The report is based on consultations with Mr M, his mother and his doctor. In summary, the bullying was by a group of 10 to 15 boys, six or seven of whom attended his school. It is clear that this is a reference to The Young Port Team gang referred to above. It started in his second year at St Stephen's School in Port Glasgow. It was reported to the head teacher, and teaching staff were made aware of it. At the beginning of the third year, the family moved to Greenock and Mr M moved to the Academy there. The bullying stopped in school but continued in the community. It appears that it was having a negative effect on Mr M's behaviour and school attendance record. In due course, after a brief period at another school, Mr M returned to St Stephen's. After a while the bullying resumed. In January 2009 while in his fourth year at St Stephen's, he was attacked and physically assaulted in the school corridor and sustained injuries. I was shown records and a photograph from A and E at Inverclyde Royal Hospital which appear to confirm this. This was reported to the police and the perpetrators were convicted. This incident is noted also in the affidavit of JQ, GQ's older brother, who says that on one occasion when the gang were looking for GQ but could not find him, MM got beaten up. Mr M was moved away again, back to Greenock Academy, but bullying continued in the community. The social work report notes that Mr M attempted suicide in 2006 and 2007. It is not clear whether these attempts related to an inability to cope with what was going on around him. According to the report, the doctor treating Mr M suggested that the second attempt at least was impulsive, not planned and may have been related to family and relationship difficulties. I had the advantage of being shown a report by a consultant clinical psychologist (Dr Lisa Cameron) dated 20 August 2011 and a supplementary report from her dated January 2012. She mentions one suicide attempt, and appears (at p. 2 of her first report) to link it as well to the bullying. Ultimately it may not matter. What is clear is that over an extended period leading up to this incident Mr M was the victim of bullying from a gang which included Mr Thruel and was in fear of them."

 

The trial judge concluded:

 

"This background is, to my mind, relevant in two distinct ways. First, it makes it improbable that this group of three boys would have wanted to seek out Mr Thruel and pick a fight with him... Second, and of greater importance, it informs the reaction of Mr Q and Mr M to what occurred when they encountered Mr Thruel. When he shouted them over they would have been anticipating trouble."

 

[15] At the time of the commission of the offence the respondents GQ and MM were respectively 16 and 17 years of age. Neither had any criminal record, nor any appearance before the Children's Panel. The trial judge considered them to be of good character. Both had succeeded in obtaining steady employment. Mr Q built up a promising career as an amateur boxer and had won a number of medals. The trial judge received testimonials from persons involved in boxing. There was also material placed before the trial judge as to voluntary work carried out by Mr Q, in respect of which he was nominated for a Young Quality Scot Award. His employers provided a positive reference.

[16] The trial judge had regard to the terms of section 207(3) of the 1995 Act. From the terms of the social enquiry reports in respect of each of the respondents he concluded that there was nothing to be taken from the reports to suggest that there was no suitable alternative to custody. Several alternatives were advanced. The trial judge said that having regard to considerations of retribution, deterrence and the protection of the public, he started from the assumption that the offence was of a type which would normally attract a custodial sentence. He noted that given the risk assessment for the appellant M, and the revised risk assessment for Mr Q, protection of the public did not appear to require a custodial sentence. As to retribution and deterrence, he said that he required to balance these against the other factors mentioned and the statutory presumption against a custodial sentence unless it was necessary.

 

Submissions
Crown
[17] The advocate depute's submissions came to be advanced on three fronts. First, he submitted that in his report the trial judge had made a number of factual errors which had affected his assessment of the seriousness of the assault. Two of these were of particular note. In his account of the final stages of the assault the trial judge described Mr Thruel being kicked and punched while he lay on the ground, but made no reference to stamping and jumping which were included in the libel and which could be clearly seen on the cctv footage. In addition, the trial judge had significantly underestimated the length of the final part of the incident, describing it has having been over in about 10 seconds, whereas the cctv footage indicated that this part of the incident lasted for 42 seconds.

[18] Secondly, the trial judge had failed to appreciate that the assault developed in stages. In analysing the cctv footage before us, the advocate depute sought to break events up into three stages. He submitted that the first stage was covered by that part of the libel which alleged that the respondents had assaulted the complainer by attempting to punch him and forcing him onto an area of the roundabout. The second stage was reflected in that part of the libel that alleged that they repeatedly punched and kicked him on the head and body and caused him to fall to the ground. The third stage was reflected in that part of the libel which alleged that they again repeatedly punched and kicked him on the head and body, repeatedly jumped and stamped on his head and body, all to his severe injury, permanent disfigurement and to the danger of his life.

[19] Thirdly, the advocate depute submitted that the trial judge had placed undue weight on the material placed before him prior to sentence in support of the history of bullying of the respondents by a gang which included Mr Thruel. This had led him to assess the evidence in a way that was inconsistent with the evidence of the cctv footage.

 

Respondents
[20] While recognising that there were factual errors in the trial judge's report, counsel for the respondents submitted that many of these were irrelevant to the question of sentence and pointed out that at page 7 of his report the trial judge recognised the serious nature of the assault:

"On any view, in its latter stages at least, this was a brutal attack on Mr Thruel, an attack which would, in most cases, have led almost inevitably to the imposition of a custodial sentence."

 

And, later, at page 13, he referred to the assault ending "on any view, with a sustained, brutal and life threatening attack."

[21] In relation to the second point made by the advocate depute, counsel for the respondent GQ, whose submissions were adopted by counsel for the respondent MM, pointed out that in indicting the case the Crown had not broken the libel up into three charges or sub-heads. The charge reflected a narrative leading up to the final serious assault. He submitted that the approach of the advocate depute before us was somewhat artificial. He submitted that the material on the cctv footage was not considered in isolation at the trial but in the context of evidence as to what happened, spoken to by, among others, LD, whose evidence the trial judge preferred to that of the complainer or his girlfriend.

[22] In relation to the third submission of the advocate depute, both counsel submitted that the trial judge was entitled to take into account the important background placed before him prior to sentence and had not placed undue weight on it.

 

Discussion
[23] In deciding whether the sentences imposed in this case were unduly lenient we bear in mind two important considerations. First, each case must turn on its own particular facts and circumstances. Secondly, the question is not whether this court might have imposed a different sentence in the circumstances. We require to be satisfied that the sentence is unduly lenient. In HM Advocate v Bell 1995 SCCR 244 the Lord Justice General (Hope) delivering the Opinion of the Court stated at p 250:

"It is clear that a person is not to be subjected to the risk of an increase in sentence just because the appeal court considers that it could have passed a more severe sentence than that which was passed at first instance. A sentence must be seen to be unduly lenient. This means that it must fall outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate. Weight must always be given to the views of the trial judge, especially in a case which has gone to trial and the trial judge has had the advantage of seeing and hearing all the evidence."

 

[24] While the number of errors in the trial judge's report was somewhat surprising, most were perhaps not of any great significance. The failure to refer to jumping and stamping, and the underestimate of the length of time during which the last part of the assault occurred, do, however, require careful scrutiny. Having noted the passages in the trial judge's report drawn to our attention by counsel for the respondents, we have come to the conclusion, despite these errors, that, when the trial judge's report is read as a whole, it is clear that he did understand and recognise the very serious nature of the latter stages of the assault.

[25] In relation to the question of whether the incident seen on the cctv footage may be broken into three stages, it is clear from the trial judge's report that he considered it important to have regard not only to the cctv footage, but also to the evidence from witnesses as to what happened. We agree with the submission of counsel for the respondents that the approach of the advocate depute was somewhat artificial and prefer to approach the evidence, both from the cctv footage and the witnesses, as described by the trial judge, as reflecting a developing and ongoing incident which ebbed and flowed and culminated in what was on any view a vicious and brutal assault on the complainer.

[26] The trial judge had before him a substantial amount of information prior to sentence. There is no indication that the advocate depute at the trial took issue with the accuracy of that information. In our opinion the trial judge was entitled to have regard to that material as part of his assessment of the appropriate sentences.

[27] In our opinion, the starting point in the circumstances of this case would be the strong likelihood of the imposition of custodial sentences. The trial judge expressly started from that position. At p 7 of his report he states:

"On any view, in its latter stages at least, this was a brutal attack on Mr Thruel, an attack which would, in most cases, have led almost inevitably to the imposition of a custodial sentence"

 

It is clear, however, that he had regard to the whole circumstances of the case and applied his mind to all the relevant factors. The respondents were convicted of the charge in same terms as the pleas of guilty tendered by them at the preliminary hearing. The case went to trial and the trial judge had the advantage of seeing and hearing all the evidence. The trial judge took into account the ages of the respondents, their lack of any criminal record, their apparently good character, their being in employment and the positive social enquiry reports. He had particular regard to the background information about extensive bullying of each of the respondents over a long period of time by a gang which included among its members Mr Thruel. The combination of all of these circumstances presented the trial judge with a difficult sentencing exercise. Having regard to what came to be a very unusual set of circumstances, we have come to the conclusion that we cannot say that the sentences fell outside the range of sentences open to the trial judge.

Decision
[28] For the reasons set out above, we do not consider that the disposals were unduly lenient and accordingly we refuse the appeal.