7 February 2014

[1] On 5 February 2014, this court granted in part an application under section 107(8) of the Criminal Procedure (Scotland) Act 1995. The court allowed a ground of appeal to enable the appellant to argue that the sheriff erred in his sentence decision by imposing a supervised release order in terms of section 209 of the Criminal Procedure (Scotland) Act 1995 because the statutory test set out in section 209 of the 1995 Act was not met.

[2] Thereafter the court heard oral submissions by counsel for the appellant in respect of the aforesaid ground of appeal and also in respect of the ground of appeal which had passed the first sift to the effect that the starting point of the custodial sentence selected by the sheriff was excessive.

[3] Counsel for the appellant adopted the submissions which she had made in respect of the said application in terms of section 107(8) in advancing her submission about the merits of the appeal grounds.

The supervised release order

[4] In terms of section 209 of the Criminal Procedure (Scotland) Act 1995, a court may make a supervised release order "if it considers that it is necessary to do so to protect the public from serious harm from the offender on his release". The sheriff in his report considered it necessary because he said that the appellant had committed two serious assaults over six years. He concluded that the appellant "presents as a person who may, when at liberty, commit a further serious assault, especially if there is no element of public control over his transition from custody to liberty". In reaching this conclusion, the sheriff appeared to have paid insufficient regard to the terms of the criminal justice social work report which concluded at page 6 that the appellant "presents with low risk needs, which indicates a low likelihood of reoffending". Further the reporter considered the appellant as suitable for a community rather than custodial sentence.

[5] We accept that the sheriff was not bound by the conclusion of the criminal justice report to impose a non custodial sentence but the report does indicate that the risk assessment for the appellant is low. The appellant has only one previous offence some 6 years prior to the offence which resulted in the sentence which is the subject of the appeal. We have no difficulty in concluding that the sheriff was not entitled to conclude that the statutory test was met in this case. In these circumstances, the supervised release order must be quashed.

The length of the sentence
[6] Our starting point is that the sheriff was correct in concluding that a custodial sentence was the appropriate disposal in this case albeit there may be mitigating factors in the history of the appellant.

[7] Counsel for the appellant did not seek to minimise the seriousness of the offence to which the appellant pled guilty namely assault to injury and permanent disfigurement. We note the description of the offence given by the sheriff in his report. The victim B and his two friends

"were not significantly under the influence of drink. They had bought their first drink and were standing at the bar, there being no vacant seats, when the appellant barged into them. He was 'jumping about'. When they complained about his behaviour, he immediately became aggressive and threatened to assault them. One of the group of three put his hand on the bottle the appellant was holding to prevent him using it and in an effort to calm him down. That seemed to dispel the immediate aggression and the three young men took a deliberate decision to move a distance away from the appellant to avoid him. But he followed them and deliberately barged into them again. He then struck B hard on the head with a bottle which he lifted from the bar. There was then a bit of a wrestling match involving B and the appellant and B fell to the floor. He was bleeding heavily from a head wound. The appellant punched him several times on the face and then various people intervened to prevent him hitting B further".

[8] We have no hesitation in condemning the behaviour of the appellant. Even if the appellant had not had the previous conviction for an offence involving assault some 6 years earlier, we consider that the nature and circumstances of the offence would probably have made a custodial sentence inevitable in order to punish and deter drunken behaviour involving unprovoked assault with a bottle in a public place. We consider that the sheriff in his sentencing decision was also entitled to take into account the one previous conviction of the appellant albeit it should be noted that it is to the credit of the appellant that he led a useful and productive life for a period of some 6 years following said conviction.

[9] In considering the appropriate length of custodial sentence, we consider that the sheriff fell into error in that he did not give sufficient weight to the general conclusions of the social work report, the many years of productive and law abiding behaviour of the appellant, the appellant's attempts to deal with his problems proactively, his genuine remorse and the effect that a custodial sentence of any length is likely to have on the appellant. We consider that the appellant is genuinely motivated to address his problems with alcohol and avoid reoffending behaviour.

[10] Counsel for the appellant referred us to a number of cases involving appeals against sentence namely Sam McCarthy 10 June 2011 (XC178/11), Jamie Barr 22 July 2010 (XC267/10) and Robert Lynch 23 July 2010 (XJ488/10). These cases also illustrate that a custodial sentence which might be appropriate in relation to the circumstances of an offence is not automatically the correct sentencing solution. The court must always have regard to the individual circumstances of the offender and the potential risk he poses to the public.

[11] As we have stated, the appellant in this case is considered to be a low risk to the public. In addition there are a number of circumstances to which we have referred which, when taken together, point to the conclusion that the sentence imposed by the sheriff was excessive.

[12] There is no dispute about the discount in this case. The sheriff granted a discount of one third. We consider that is appropriate. Approaching the matter broadly, taking into account all the circumstances including the requirement for deterrence and punishment, we quash the sentence of the sheriff. We have concluded that a custodial sentence prior to discount, of 18 months, is appropriate. We discount that by a third in respect of the early guilty plea by the appellant and the utilitarian value thereof. We therefor impose a custodial sentence of 12 months in substitution for the sentence of 20 months imposed by the sheriff.