Appellant: M Mackenzie; Burns McGregor, Aberdeen

Respondent: M Hughes AD; the Crown Agent

21 February 2013

[1] The appellant pled guilty to a charge that on 23 August 2012, at Justice Street, Aberdeen he assaulted David Graham Jones and did repeatedly kick him on the body to his injury. There is also a bail aggravation libelled. The appellant pled guilty at the first diet, on 7 December 2012. He appeared with a co-accused, Andrew Cummings Henderson, who pled guilty to striking the complainer on the head with a knife to his severe injury and permanent disfigurement while subject to bail.

[2] The Crown narrative, which we understand to have been agreed in this case, is set out at length in the sheriff's helpful report. The complainer had been released from prison shortly before the incident. He had served a fairly substantial prison sentence as a result of a conviction for causing death by dangerous driving. This caused the death of a child, who was the child of the partner of the co-accused, Henderson. The co-accused had been upset by those events and did not seem to be satisfied by the sentence imposed by the courts and, it is said, decided to take the law into his own hands to seek revenge.

[3] The complainer was in the centre of Aberdeen in the early hours of the morning of 23 August 2012. He suddenly felt a blow to the head and fell to the ground. He recognized the co-accused, Henderson, as the person responsible. He subsequently felt kicks to his body. A struggle ensued between the complainer and Henderson, during which he was kicked on the body by the appellant.

[4] The appellant's position was that he had been out in Aberdeen in the company of the co-accused, Henderson, when they spotted the complainer. The appellant knew of the past history between Henderson and the complainer and remained with Henderson. He had then joined in the struggle that developed between Henderson and the complainer, by kicking the complainer repeatedly on the body to his injury. That caused bruising. It should be said, in addition, that the appellant has numerous previous convictions, including seven for assault, one of those being a sentence in the High Court which resulted in slightly over four years in prison.

[5] The sheriff records that the assault was a serious one, but he accepted that the co-accused played the more significant role in this. He went on to say that the appellant, by placing himself in the vicinity of the assault and then repeatedly kicking the complainer while the complainer was on the ground, had put himself in a position where a custodial sentence was inevitable. We may say that we agree with that observation. The sheriff then explains his headline sentence of thirty six months. He took account of the nature of the offence itself and the appellant's previous convictions. These would seem to be relevant factors. He then decided that the sentence should be discounted by one-quarter, reduced from thirty six months to twenty seven months to account for the fact that a plea of guilty was tendered at an early stage. The sentence was backdated to 4 September 2012, the date on which the appellant was first remanded in custody. The discount and the backdating are not challenged.

[6] In our opinion, it is clearly important in this case that the sentences imposed on the two accused, the appellant and his co-accused, Henderson, should bear a reasonable relationship to each other. Henderson was sentenced to four years' imprisonment. He was the initial perpetrator of the assault and throughout the assault he was the main attacker. That is quite clear from the Crown narrative. He used a knife, which again is a matter of some importance. The assault carried out by him resulted in severe injury and permanent disfigurement. So far as the appellant is concerned, initially he had been helping Henderson, who he thought was in some difficulty with the complainer, but it is clear that he went beyond that stage and kicked the complainer repeatedly on the body. His record includes, as we have said, a number of assaults including, in the last case, a serious assault that resulted in four years in custody. Against that record, we think that a sentence of imprisonment is inevitable in this case. Nevertheless, that leads on to the comparison of the two sentences, those imposed on Henderson and the appellant. The most obvious point is that Henderson used a knife. The appellant's attack, by contrast, was confined to kicking. While the kicking was repeated, we note that it was on the body not the head. If the kicking had been on the head, we would have taken a very much more serious view of the case. Nevertheless, the result appears only to have been bruising, and no medical treatment was required. On that basis we think that there is a disproportion between the sentences imposed on the two persons responsible for the assault. We take the view on that basis that the starting point of three years for the appellant is too high. We would reduce that to two years. That will be reduced by one-quarter in view of the plea of guilty that was tendered at an early stage, bringing the sentence down to eighteen month. That will be backdated to 4 September 2012, for the reasons indicated by the sheriff.

DL