Appellant:  Tait, Solicitor Advocate;  Thurley Stevenson, Edinburgh

Respondent:  J Scullion AD;  Crown Agent

29 July 2014

[1]        I regret that I am in the minority, and I take this opportunity to express my dissenting view. 

[2]        In my opinion, there is only one strong point in the appellant’s favour, and that is his youth.  He was 17 at the time of the offence, and is now aged 19.  That said, it is totally unacceptable for any human being of any age to bite off a piece of another person’s anatomy.  Such behaviour is abhorrent animalistic savagery.  Alcohol is no excuse.  The consequences of such an attack, both physical and psychological, can never be under-estimated.  The victim is left maimed both physically and psychologically. 

[3]        Thus even taking into account the appellant’s youth, his lack of previous convictions, the fact that he has never before served a custodial sentence, his supportive family, his employment prospects as a joiner, his character references,  the positive criminal justice social work report, the fact that the appellant has reduced his drinking and is attending alcohol counselling and the terms of section 207(3) of the Criminal Procedure (Scotland) Act 1995, nevertheless I am unable to say that the custodial sentence selected by the sheriff fell outwith the range of reasonable disposals open to her.  In my view the appeal should be refused.

[4]        However I am in the minority, and the appeal will be allowed as indicated by Lord Menzies.

Appellant:  Tait, Solicitor Advocate;  Thorley Stephenson, Edinburgh

Respondent:  Scullion AD;  Crown Agent

29 July 2014

[5]        I should begin by agreeing with your Ladyship in the Chair that alcohol is no excuse in this case nor in any other case.  I also agree that this was a very nasty assault.

[6]        However it did not involve any form of weapon, although of course the appellant used his teeth as a weapon, but he did not arm himself with a knife or any other form of weapon.

[7]        I accept that the consequences of this assault were more serious than an assault with fists for example.  However the absence of arming himself with any weapon indicates that this was not a premeditated assault.

[8]        When I have regard to all the mitigating factors to which we were referred by Mr Tait this morning, including that the appellant has never served a custodial sentence before, his relative youth at the time of the commission of this offence, his stable family background, and the generally positive terms of the criminal justice social work report, I have reached the conclusion that the sentence imposed by the sheriff was indeed excessive and that this court is entitled and indeed bound to interfere with it.

[9]        I take into account also the fact that the appellant has served some 82 days in custody until now which is the equivalent of approximately a sentence of five and a half months.

[10]      In considering what sentence should be substituted for that of the sheriff it is appropriate, in my view, to note the positive character references which are now before this court, some of which were also before the sentencing sheriff.  For my part I have seldom, if ever, seen such positive character references, particularly from prison officers or officers of a young offenders’ institution about someone in their charge.  Moreover the appellant’s employer has taken the trouble to write two positive and supporting letters and has kept the appellant’s post as an apprentice open for him even after 82 days in custody.

[11]      It seems to me clear from the character references to which I have referred that the appellant has a good work ethic, both in his time as an apprentice, and also during the course of his time in custody in Polmont.  He appears properly motivated and that is a factor that weighs strongly with me.

[12]      Having regard to all of these circumstances I am persuaded that not only was the sheriff’s sentence excessive but that it is unnecessary to impose a custodial sentence in the circumstances of this case.  What I would be minded to do, subject to the views of Lady Smith, is to impose a Community Payback Order which would include a requirement that the appellant complete 300 hours of unpaid work within a period of one year, and second that he make compensation, that is a compensation requirement, in the sum of £1,500.00 in total payable at the rate of £30.00 per week.  That total sum therefore to be paid within one year.  And provided that Lady Smith agrees with the substance of my views and provided that the appellant understands and indicates that he is willing to comply with such an order that is the disposal which I favour.

Appellant:  Tait, Solicitor Advocate;  Thurley Stevenson, Edinburgh

Respondent:  J Scullion AD;  Crown Agent

29 July 2014

[13]      In common with Lord Menzies, I have never seen such positive references from the officers of a custodial institution about a young inmate and I agree that we have to have careful regard to them and to the references from the appellant’s employer.

[14]      For the reasons given by Lord Menzies, I also agree that this sentence was excessive, that it should be quashed, and there should be substituted in its place a community payback order, in the terms he has outlined.