Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 47

HCA/2015/622/XC

Lord Justice Clerk

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

GC

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: I Paterson, Solicitor Advocate; Paterson Bell (for Matthew Brown, Solicitors, Irvine)

Respondent: McFarlane AD; the Crown Agent

19 May 2015

[1]        On 18 February 2015, at the conclusion of the evidence of the complainer at Kilmarnock Sheriff Court, the appellant pled guilty to a charge of assault on his female partner to her injury on 5 October 2013 at an address in the town.  The assault consisted of, amongst other things, seizing the complainer by the neck, putting her in a neck lock, pressing down on her neck, boiling a kettle to give her the impression that he was going to pour the contents over her, pouring sugar over her and punching her on the head, causing her nose to bleed.

[2]        The appellant also pled guilty to malicious damage, by breaking a television and a glass table, and a contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, by repeatedly presenting a knife and shouting and swearing, at the same locus.  He pled guilty to assaulting a police officer by spitting at him when he was arrested shortly after the incident.  This caused the officer anxiety about his health.

[3]        The appellant was not quite 16 at the time of the offences.  The complainer in the assault charge was his girlfriend.  They had a child born less than a fortnight previously.  The assault occurred in the context of an argument, which on one view was about the appellant’s fidelity and, on another view, about the complainer’s fidelity.  The appellant had returned to and then left the complainer’s home.  He returned once more brandishing a knife.  The assault then ensued. 

[4]        A Criminal Justice Social Work Report was obtained.  This stated that the appellant had no memory of the offences because of the level of his intoxication.  The social worker reported that the appellant had shown a mature attitude and some insight into the offence.  He had expressed remorse for his actions, which he considered to be out of character.  Although the appellant had no previous convictions, he had previously come to the attention of the Children’s Hearing.  He had a subsequent conviction for attempting to pervert the course of justice and contravening section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995.  This had resulted in a Community Payback Order with a period of 6 months supervision and a condition of 120 hours of unpaid work in the community.  He had some 7 hours of that Order remaining. 

[5]        The appellant now has no contact with the complainer, but he does see his son three times a week.  He was not employed at the time of sentencing, but material has been produced indicating that such employment is in immediate prospect.  This has followed the intervention of Action for Children’s programme of assistance.

[6]        The sheriff took the view that this was a serious charge in which the actions of the appellant had been designed to cause both emotional and physical harm.  There had been a degree of planning involved.  The sheriff had in mind, as she reports, the high incidence of domestic violence in her sheriffdom. 

[7]        The appeal was focussed, first, on the appellant’s youth and, secondly, on the circumstances since the incident, which was some 16 months before the date of sentencing. 

[8]        The court agrees with the sheriff that, having regard to the nature of the offences, had an adult offender been involved, a custodial sentence may well have been considered appropriate, especially given the prevalence of domestic abuse in the sheriffdom.  The court also agrees that it was appropriate to consider a period of custody in the case of this appellant.  However, having regard to the fact that he was only 15 at the material time, custody could not be regarded as the only appropriate disposal (Criminal Procedure (Scotland) Act 1995, s 207(3)).  The fact that 16 months passed between the offence and the sentencing diet is not without significance in this context.  The court will quash the sentence of detention and substitute a Community Payback Order, which will involve 2 years supervision and unpaid work in the community of 240 hours.