APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Mackay of Drumadoon	[2013] HCJAC 74 Appeal No: XC80/13   OPINION OF THE COURT   delivered by LADY PATON   in   APPEAL AGAINST SENTENCE   by   JAMIE DEANS CADLE   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: A Ogg; McCusker McElroy & Co, Paisley

Respondent: Hughes AD; Crown Agent

 

4 July 2013

 

Introduction

[1] The appellant was born on 3 April 1993. On 17 April 2011, when aged 18 and under the influence of drink, he carried out an appalling attack on a 75-year-old man. The sheriff describes the attack as follows:

"Mr and Mrs Leith were sitting in their living room watching television. They heard a noise in the hall of their house. Mr Leith went to investigate and discovered the Appellant in the house with his granddaughter. Mr Leith told him to get out of the house, grabbed him by the arm and put him out. The Appellant then ran across the road shouting "I'm away for a chib".

 

The Appellant and four or five other youths then congregated outside Mr Leith's house. They were shouting and swearing and acting aggressively. One of the youths shouted "it's your time old man" and "You're going to get what you done to me".

 

The Appellant and three of the others were in possession of pieces of wooden fencing about six feet long. Another youth was in possession of a glass bottle. The group threw the wooden fencing at the windows of Mr Leith's house, causing them to smash.

 

Mr Leith went outside and was approached by the group of youths. They started hitting him on the head and body with the planks of wood. He was trying to stop them with little success. They were shouting threats at him. The Appellant shouted "Your time has come old man. Your time has come". In the course of the melee the Appellant approached Mr Leith from behind and stabbed him twice.

 

Mr Leith was subsequently taken by ambulance to the Royal Alexandra Hospital, Paisley, where he was examined in the Accident and Emergency Department. He was found to have a two centimetre stab wound on his lower left back and a stab wound to the right posterior thigh. He was admitted to a ward for observation and was not discharged until 21 April.

 

On 23 April at 18.35 hours Mr Leith was re-admitted to the Acute Medical Unit of the hospital. He was found to have a deep seated infected stab wound on the posterior right thigh, secondary to knife trauma, and a large infected haematoma. On 14 May Mr Leith was operated on and an abscess on the right thigh was surgically removed. Mr Leith remained in hospital until 30 May 2011. For a period of time thereafter District Nurses attended at his home to change the dressings on the wound."

 

Following upon a jury trial, the appellant was found guilty of the following charges:

"(1) on 17 April 2011, at 76 Greenend Avenue, Johnstone, you JAMIE CADLE did, whilst acting along with others, behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout, swear, utter threats of violence, act in an aggressive manner, brandish pieces of wood or similar implements, repeatedly strike windows with pieces of wood or similar implements causing damage to same and place the lieges in a state of fear or alarm:

 

CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 you JAMIE CADLE did commit this offence while on bail, having been granted bail on 8 July 2010, 1 October 2010, 10 December 2010 and 14 January 2011, all at Paisley Sheriff Court;

 

(2) on 17 April 2011, at 76 Greenend Avenue, Johnstone, being a public place, you JAMIE CADLE did, without reasonable excuse or lawful authority, have with you an offensive weapon, namely a piece of wood or similar object;

 

CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995 Section 47(1) as amended;

 

(3) (as amended) on 17 April 2011, at 76 Greenend Avenue, Johnstone, you JAMIE CADLE did, while acting along with others, assault James Leith, c/o Strathclyde Police, Johnstone and did throw pieces of wood or similar objects at him, strike him on the body with a piece of wood and repeatedly strike him on the body with a knife or similar implement, to his severe injury and permanent disfigurement;

 

You JAMIE CADLE did commit this offence while on bail, having been granted bail on 8 July 2010, 1 October 2010, 10 December 2010 and 14 January 2011, all at Paisley Sheriff Court;

 

(6) you JAMIE CADLE, being an accused person and having been granted bail on 10 December 2010 at Paisley Sheriff Court in terms of the Criminal Procedure (Scotland) Act 1995 and being subject to the condition, inter alia, that you remain within your bail address at 9 Highcraig Avenue, Johnstone each day from 7pm until 7am the following morning and must present yourself at the door when requested to do so by Officers of Strathclyde Police did, on 17 April 2011 at 76 Greenend Avenue, Johnstone fail without reasonable excuse to comply with said condition in respect that you were not there between 7pm and 7am; CONTRARY to the Criminal Procedure (Scotland) Act 1995, Section 27(1)(b); you JAMIE CADLE did commit this offence while on bail, having been granted bail on 8 July 2010, 1 October 2010 and 14 January 2011, all at Paisley Sheriff Court."

 

The consequences for the 75-year-old victim are clearly set out in his victim statement:

"I was stabbed 3 times, once on the left arm, once on back and once on upper right thigh (back of leg). Took infection from dirty knife was admitted to hospital for 8 weeks, badly bruised all over body. Underwent surgery to remove abscess from stab wound at back of leg. Took infection on both lungs. District Nurse is still attending house to dress wound on back of leg.

 

Find it difficult to walk, need a walking stick. Feel tired ie weak all the time, lost 2st in weight. No appetite. Required 2 pints of blood while in hospital. Police were also at my hospital bed for 5 nights, 24 hours a day. Still attending hospital.

 

Cannot sleep since the crime, depressed, anxious, nervous for example every sound I hear while in the house I get nervous. Do not want to leave the house. Have no interest in anything anymore, for example I loved my garden, and to work in my garage, now I am too nervous to work in my garden or garage. No interest anymore in my hobbies. Had to take different medication for pain. Have no purpose in life anymore. No quality of life. Had to sell my motorhome as I have no interest anymore. Scared to leave my own home."

 

[2] On 2 December 2010, a few months before this attack, the appellant, when aged 17 and on several bail orders, acted with another youth named Winters, got into a car at a petrol-filling station (uninvited) and forced the driver at apparent knife-point to drive out of the station and through the streets until the police intervened. Ultimately no knife was found on the appellant, although his co-accused had a knife with a three-inch blade. The appellant was convicted of abduction. The appellant was also convicted of a breach of curfew, and of vandalism.

 

Sentence

[3] On 14 October 2011 the appellant came before Sheriff Pender for sentencing. The sheriff heard submissions and was provided with a criminal justice social work report dated 30 September 2011. That report gave inter alia the following information:

"5(a) Offending analysis - current

Analysis of current offence(s)

 

Context:

Breach of the Peace and Possession of Offensive Weapon Matter (17/4/11):

Mr Cadle asserts that he has little memory of events that led to these convictions admitting that he was 'drunk' at the time. He did say however that he remembers picking up the said piece of wood in an act of potential retaliation against the victim of his offending as he claims this person had been brandishing a 'machete' at him. He says that he and the victim 'have a history' between them.

 

Assault to Severe Injury & Permanent Impairment offence (17/4/11):

 

Mr Cadle denies any involvement in this matter."

 

The sheriff ultimately imposed the following sentences:

Charge 1 (contravention of section 38(1)): 6 months

Charge 2 (contravention of section 47(1)): 6 months

Charge 3 (assault to severe injury and permanent disfigurement): an extended sentence of 4 years 6 months in custody with a 3 year extension period.

Charge 6 (breach of curfew): 6 months.

The sentences were concurrent, but were to be served consecutively to a 20 month sentence (back-dated to 18 April 2011) imposed in respect of the abduction described in paragraph [2] above.

 

Appeal against sentence

[4] The appellant appeals against the extended sentence. His Note of Appeal is in the following terms:

"...the sentence was excessive having regard to -

 

1. The Appellant's age. The Appellant was 17 [sic] years of age at the time of the commission of the offences.

 

2. The Appellant's previous convictions. The Appellant had one previous conviction for vandalism which occurred in 2010 and one previous breach of bail. Sentence was deferred in respect of both matters. The Appellant had never before received a custodial sentence. He was not someone who had an extensive previous involvement in the criminal justice system. He had no cases outstanding.

 

3. The terms of the social work report before the court. The Appellant demonstrated insight into his offending and recognised the consequences of his actions. The social worker recommended the Appellant be subject to a period of supervision post-conviction to prevent him becoming embroiled in the criminal justice system upon his release.

 

It is submitted that having regard to all the circumstances the extended sentence selected was excessive. It is submitted that having regard to the factors above the custodial part of the sentence was excessive. It is further submitted the extension period was excessive having regard to the Appellant's limited history of offending."

 

Submissions for the appellant

[5] Miss Ogg accepted that a custodial sentence was appropriate, but submitted that, in all the circumstances, (a) the length of sentence was excessive, particularly when taken with the sentence of 20 months (which had in fact now been served); and (b) an extended sentence was inappropriate and excessive, having regard to the period of licence. A supervised release order (with a maximum of 12 months) would have been available to the sheriff, had the custodial sentence selected been less than 4 years.

[6] Those submissions were made for the following reasons.

[7] The appellant had been very young (aged 18) at the time of the offence. As with all young offenders, rehabilitation was important as well as retribution and deterrence, and a balancing exercise had to be carried out: Ashraf v HM Advocate 2010 SCCR 826, at page 832A, 833C, 834B. The appellant had never previously received a custodial sentence. Indeed it was submitted that he did not have extensive involvement with the criminal justice system. He had no other cases outstanding. Moreover there was information available now (which had not been available to the sentencing sheriff) demonstrating that the appellant had made considerable progress within the prison system. He was currently a low risk prisoner, with enhanced status which permitted him to move within the prison without restriction. His drug tests were negative. He had taken courses and achieved certificates. Initially he had worked in the kitchens, then in the bike sheds. Thereafter he had worked with the Dogs Trust. He had completed numeracy and literacy courses. His latest Internal Case Management report (ICM) dated April 2013 was positive. There had been a maturing of attitude of which the sheriff could not be aware, but which the appeal court could take into account. The appellant's family were supportive. His uncle and aunt were present in court. If released, he would return to live with his mother. Section 3 of the ICM recorded his consistent progress; the possibility of special escorted leaves or home leaves; his attendance at a substance-related-offending behaviour programme; his work with the Dogs Trust; his status as a passman in the prison; and his general good behaviour. It was submitted that the appellant was learning, and was demonstrating major improvement.

[8] Against that background, Miss Ogg invited the court to reduce the custodial part of the extended sentence. If that were to be reduced to below 4 years, the extended sentence could not remain. Options would include the period of licence alone, or if that was not thought adequate, a supervised release order.

 

 

Discussion and decision

[9] The assault to severe injury and permanent disfigurement was a terrible attack, rightly attracting a substantial custodial sentence. Moreover it was committed in the context of a variety of offences, including the earlier abduction, breach of bail, breach of curfew, and vandalism. Nevertheless we consider that more weight should have been given to the appellant's age at the time of the offence, his relatively short record (two convictions where sentence had been deferred), the fact that he had never previously served a custodial sentence, and the fact that the sentence for the assault was to run consecutively to the 20 month sentence imposed in respect of the abduction offence. We also take into account information available to us (but not to the sheriff) namely the considerable progress which the appellant has made within the prison system, all as detailed in paragraph [7] above, and the importance not only of retribution, deterrence, and protection of the public, but also of the rehabilitation of the appellant.

[10] In the result we have been persuaded that a custodial sentence of 3 years 6 months, together with a supervised release order of 12 months, would be sufficient to meet the aims of retribution, deterrence, protection of the public, and rehabilitation of the appellant. We shall therefore allow the appeal, quash the extended sentence of 7 years 6 months (comprising 4 years 6 months custody, and a 3 years extension period), and substitute therefor a custodial sentence of 3 years 6 months and a supervised release order of 12 months.