Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 14

HCA/2015/3427/XC

Lord Justice General

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD BRACADALE

in

CROWN APPEAL AGAINST SENTENCE

by

HER MAJESTY’S ADVOCATE

Appellant;

against

KENNETH GRAYDON

Respondent:

Appellant: I McSporran, Solicitor Advocate, AD; the Crown Agent

Respondent: Alonzi; Paterson Bell

22 January 2016

Introduction
[1]        On 13 March 2015 at a preliminary hearing in the High Court at Glasgow the respondent pled guilty to two charges arising from an incident in a convenience store in Prestwick.  The first charge libelled the theft of a quantity of groceries and tobacco and the second charge narrated an assault of WY, an employee of the store, by struggling with her and repeatedly striking her on the body with a knife to her severe injury and permanent disfigurement.  After a number of continuations, on 12 October 2015 the sentencing judge made a community payback order for a period of three years with requirements for supervision and mental health treatment.  By note of appeal in terms of sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995 the Crown appealed that disposal as being unduly lenient.  When the case came before the court we refused the appeal indicating that we would give full reasons in writing later, which we now do.

Previous convictions
[2]        At the preliminary hearing the advocate depute tendered a schedule of previous convictions.  This disclosed a number of convictions for various offences including contraventions of the Misuse of Drugs Act 1971, fraud and theft.  In 2006 on indictment in the sheriff court the respondent was convicted of assault and robbery and sentenced to 23 months imprisonment.  It emerged from reports subsequently made available to the sentencing judge that the respondent had two additional convictions in England which had not been included in the schedule: in 1999 he was convicted of assault occasioning actual bodily harm and was sentenced to 9 months imprisonment; in 2002 he was convicted of aggravated burglary involving the use of a knife and was sentenced to 39 months imprisonment.

History of the case pre-sentence
[3]        The respondent had a significant history of mental illness.  On 20 April 2015 the sentencing judge made an assessment order in terms of section 52D of the Criminal Procedure (Scotland) Act 1995 and on 21 May 2015 he made a treatment order in terms of section 52M.  Thereafter, the case called on a number of occasions and was finally disposed of on 12 October 2015 when the sentencing judge made the community payback order appointing 12 January 2016 for the first of a series of reviews. 

Circumstances
[4]        The circumstances were that around 7:10 am on 17 November 2014 the respondent entered the convenience store where WY, who was aged 60 years, was working as a shop assistant.  He selected a number of groceries and asked the complainer for a packet of tobacco from behind the counter.  The items came to £19.51.  The bank card which the respondent inserted into the chip and pin machine failed to register; he then quickly left the shop, taking the bank card and the bag of groceries with him.

[5]        The complainer followed the respondent out of the premises and caught up with him about 20 yards from the shop.  She took a hold of the back of his jacket and told him to return the shopping.  He replied, “Don’t touch me, don’t touch me”.  The complainer told him that he had to return the shopping or pay for it.  The respondent said, “I’ve got a knife” and struggled with the complainer.  As the struggle continued the respondent produced from his trousers a kitchen knife with a blade of approximately 8 inches long and said, “I’ll use it”.  He then repeatedly struck the complainer on her arm with the knife as a result of which she let go of the bag and the respondent walked away.  

[6]        The complainer was taken to Ayr Hospital and was found to have sustained four wounds to her left arm: a slash wound to the tricep 8 cm in length and 1 cm in depth which was closed with 8 sutures and 2 staples; a stab wound 3 cm in length and 2 cm in depth which was closed with 3 sutures; a stab wound 2 cm in length and 3 cm in depth which was closed with 3 sutures; and a wound close to the wrist 2 cm in length and 3 cm in depth which was closed with 4 sutures.

History of mental illness of the respondent
[7]        Over a number of years the respondent had been admitted as an inpatient to general psychiatric wards on at least nine separate occasions.  He had been diagnosed as suffering from paranoid schizophrenia, a mixed personality disorder and poly-substance misuse, including opiate and benzodiazepine misuse.  He also had a significant history of the use of psychoactive substances or “legal highs”.  He had been misusing a legal high prior to the commission of the offences.

[8]        On 2 October 2014, about six weeks prior to the commission of the offences, the respondent was discharged from Ailsa hospital having been the subject of approximately seven months of inpatient care and treatment.  During that time he had been managed for a lengthy period in the intensive psychiatric care unit due to disturbed behaviours, driven by psychotic symptoms which were proving a challenge in the open ward.  By the time of his discharge his mental state had markedly improved.

[9]        After discharge he failed to attend for Addiction Service follow-up and did not make himself available for review by the Community Mental Health Team. He became non-compliant with antipsychotic medication.  He relapsed into opiate misuse and was taking legal highs.  He had been hearing jumbled voices.  The psychiatrists considered that non-adherence to prescribed antipsychotic medication and return to the use of non-prescribed psychoactive substances had resulted in his mental state becoming destabilised following his discharge in October 2014.  He was, however, found to be sane and fit to plead.

Progress of the case before the sentencing judge

[10]      As a result of the making of the assessment and treatment orders the respondent had been transferred from prison to Rowanbank Clinic which is a medium secure unit. 

[11]      At a hearing of the case on 10 July 2015 the psychiatrists reported that the respondent had initially been unresponsive to treatment but as a result of a change in his medication and a move to intramuscular depot administration improvements had been noticed.  After an increase in the dosage of this new medication a significant and sustained improvement had occurred.  The respondent’s mother, with whom he had previously lost contact, had been in touch with him and had been visiting him in the Rowanbank Clinic.  The respondent’s general level of self-care had improved significantly.  In the light of the recommendation in the reports the sentencing judge was satisfied that the treatment order should be continued for a further period of 2 months.

[12]      By 4 September when the case next called it was clear that there had been a significant improvement in the symptoms of the respondent as a result of the treatment under the treatment order.  He was happy to continue on depot antipsychotic medication.  The treating psychiatrist reported at the end of August: “given the significant improvement in Mr Graydon’s mental state since commencement on medication and the sustainment of this improvement over the past three months, it is my opinion that Mr Graydon no longer requires treatment within a hospital setting”.  In addition, she commented, “In relation to criminal responsibility, at the time of the offence Mr Graydon reported to me to have taken a significant amount of “Bombay Blue”.  He also describes some general feelings of paranoia however; on balance it would be my view that he was criminally responsible”.  The consultant in overall charge reported that the respondent would benefit from ongoing psychiatric treatment which did not require the safety and security offered by the Rowanbank clinic.  The sentencing judge assessed the situation in September 2015 in the following terms:

“At this hearing I took account of the accused’s recent history of detention.  He had been in prison or in secure mental health facilities for all bar a few weeks since May 2014.  From 18 November onwards he had been detained as a consequence of his commission of the present offence.  Whilst I understood that the accused’s condition was exacerbated by his substance abuse, I was influenced by the long‑standing nature of his illness, the substantial improvement which had been made as a consequence of the alteration in his treatment regime and Dr Howieson’s guarded opinion as to whether or not the accused could be said to be criminally responsible.  In these circumstances, and with the only other alternative apparently being to return the accused to mainstream prison, I explained to [counsel for the respondent] that I was prepared to consider the feasibility of a community based disposal but would require further information before making a final decision.  I therefore adjourned the diet for a further time to permit the eventual preparation of the criminal justice social work report and to allow the defence to make submissions on the feasibility of managing the accused’s condition within the community. The accused remained in the Rowanbank Clinic meantime.”

[13]      The case next called on 5 October 2015.  In addition to the psychiatric reports the sentencing judge now had before him a criminal justice social work report and a risk assessment report prepared by a psychologist based at Rowanbank Clinic.  In his report the sentencing judge states:

“The social work report noted that the accused’s delusional thoughts were currently at bay due to him receiving antipsychotic medication and contained the observation that if he were to stop complying with his treatment and return to drug abuse there would be major public protection issues.  In the section headed “Review of Relevant Sentencing Options” information concerning the viability of a community payback order was provided.  It noted that a supervision requirement plan would aim to reduce the accused’s high level of risk and needs by addressing issues of accommodation, substance abuse, use of time and social isolation.  It was also noted that in discussion with the accused’s medical team it was plain that there was an on-going need for mental health services input which could only be provided on a voluntary basis.”

The sentencing judge explains that the risk assessment report had been prepared for the Scottish Prison Service in the expectation that the respondent would be leaving the Rowanbank Clinic and returning to prison.  The respondent had, however, consented to it being made available to the court.  The sentencing judge commented in his report:

“The report made troubling reading.  On the 3rd and 4^th pages there were references to convictions for violent offences in England in 1999 and 2002, each resulting in a custodial sentence.  Neither of these was mentioned in his record of previous convictions.  On page 15 there was a note that the accused had stated that he wished to return to prison at the earliest opportunity so that he would receive a tariff, coupled with an observation that the view of the clinical team was that the role of mental illness in his violent offending was limited.  Page 19 of the report contained risk management recommendations, and on the final page there was a paragraph in the following terms:

‘SUMMARY JUDGEMENTS.

Mr Graydon presents with significant risk factors which impact on his mental health and propensity to engage in violence.  The index offence appears to be an escalation from his previous violence and he will require a robust risk management plan, particularly once returned to the community, to mitigate the impact of the risk factors identified.’”

The sentencing judge was persuaded to continue the matter once more in order to permit the defence to provide him with further information as to how the respondent might be managed in the community.  His view at that stage, however, was that in the light of the content of the report a custodial disposal would be appropriate.

[14]      The case called for a final time on 12 October 2015.  The sentencing judge was told that if released the respondent would live with his mother and she had prepared a letter for the court explaining that she was willing to make sure that he attended any appointments concerning treatment and would do her best to help him get his life back on track.  The sentencing judge also had before him letters from the respondent’s general practitioner and from Dr Reid at Rowanbank Clinic explaining that Dr Gangopadhyay, the consultant at Rowanbank, was prepared to supervise the respondent’s care within the Forensic Community Mental Health Team based in NHS Ayrshire and Arran.

Sentencing decision
[15]      In his report the sentencing judge explains why he selected the disposal of a community payback order with a supervision requirement and a mental health treatment requirement:

“A custodial sentence was at the forefront of my mind in disposing of this case.  It seemed to me that any such sentence would require to be backdated to 18 November 2014 and would also have to be restricted in light of the accused’s plea of guilty tendered at the first preliminary hearing.  I gave consideration to the question of whether the imposition of a custodial sentence would permit the accused to undergo programmed interventions such as had been suggested in the risk assessment report.  Sophisticated schemes such as the Substance Related Offending Behaviour Programme, the Violence Prevention Programme and the Constructs Programme are all available to one extent or another within the prison estate.  Experience suggested to me though that for there to be any realistic prospect of the accused undergoing one or more of these programmes a sentence which kept him in prison for a number of years would have been necessary.  I appreciated that a level of psychiatric support would likely be available in prison but considered that the general environment would not be conducive to good management of the accused’s mental health.

Despite the fact that the accused had been abusing “legal highs” at the time of the offence and that these exacerbated his mental health problems I was influenced by the fact that he had eventually been diagnosed as having a process mental health illness and a personality disorder.  I calculated that the time already spent in detention was the equivalent, after discount of 25%, of a sentence of two and a half years’ imprisonment and that some period of punishment, in the sense of deprivation of liberty, had therefore already been imposed.  I did not consider that a sentence of this length would have been an adequate disposal in this case and I sought to identify a suitable disposal which would take account of the need for rehabilitation and provide public protection. I considered the imposition of an extended sentence in terms of section 210A of the 1995 Act but decided that a sentence which, after discount, resulted in a custodial term of 4 years’ imprisonment would be excessive and inappropriate in the whole circumstances. I considered a supervised release order in terms of section 209 of the Act but decided that the maximum period of 12 months supervision would be insufficient to provide for rehabilitation and adequate public protection. I concluded that one method of providing public protection and of providing rehabilitation for the accused was to impose a non‑custodial sentence with an element of supervision.

…

in the whole circumstances I decided that it would be fair and just to impose a Community Payback Order in terms of section 227A of the 1995 Act with an offender supervision requirement to run for a period of 3 years and a mental health treatment requirement also to run for a period of 3 years during which the accused was to submit to treatment by or under the direction of Dr Reid and Dr Gangopadhyay. I also decided that the operation of the order should be reviewed periodically and fixed a first review for 12 January 2016.”

[16]      As it happened, the hearing of the appeal took place one week after the date of the first review.  In anticipation of the review hearing the sentencing judge was provided with an up‑to‑date report from the respondent’s supervising officer, which has also been made available to the court. The report noted that after some initial concerns about the respondent’s behaviour at the commencement of the order, he had come to engage well, to the extent that no application for a conduct requirement, which had been considered at an earlier stage, was currently under consideration.  It was observed that the respondent’s mother was visiting him regularly and that he was developing insight into his illness and his own responsibility for maintaining good mental health.  The report concluded by observing that the respondent was three months into a three-year community payback order, that his compliance was very good and that his presentation and lifestyle gave no current cause for concern.  The sentencing judge fixed a further review for 11 March 2016 to await the outcome of this appeal.

Note of appeal
[17]      The brief note of appeal avers that the sentencing judge erred in imposing a community-based disposal and in particular a community payback order of three years.  The sentence imposed failed to give due weight to the gravity of the offences and the respondent’s schedule of previous convictions.  The sentence imposed failed to satisfy the need for retribution and deterrence and the judge had placed undue weight on the rehabilitation of the respondent.

Crown submissions

[18]      While recognising that the sentencing judge had approached the case with great care the advocate depute submitted that the judge had fallen into error.  The offence in charge 2 was a very serious one and it was plain from the victim impact statement that it had had a significant effect on the complainer.  The case had been properly prosecuted in the High Court and ought to have attracted a substantial sentence of imprisonment.  An extended sentence would have been appropriate.  In concentrating on the best outcome for public protection the sentencing judge had lost focus on the requirements of punishment and deterrence.  The result was an unduly lenient verdict.

Defence submissions

[19]      Counsel for the respondent submitted that the sentencing judge had taken a very careful approach and had taken into account all relevant circumstances.  He had had regard to the relevant previous convictions and the terms of the reports before him.  The last significant previous conviction had been in 2006, a period of nine years before the commission of the current offences.  There had been a very significant improvement in the condition of the respondent as a result of the treatment order.  Counsel drew attention to the contrast in the condition of the respondent during the period after his discharge in 2014 from hospital and his positive response to the first three months of the community payback order.

Decision
[20]      In deciding whether the sentence imposed in this case was unduly lenient we bear in mind two important considerations.  First, each case must turn on its own particular facts and circumstances.  Secondly, the question is not whether this court might have imposed a different sentence in the circumstances.  We require to be satisfied that the sentence is unduly lenient.  This means that it must fall outside the range of disposals which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate.  (HM Advocate v Bell 1995 SCCR 244 per LJG (Hope) delivering the opinion of the court at p 250).

[21]      On any view this was a very serious offence. It involved the respondent leaving his house armed with a knife and using it to commit a serious assault on a 60-year-old woman who was engaged in her job as a shop assistant.  The respondent had a number of analogous and relevant previous convictions.  The circumstances of this case would give rise to the strong likelihood of the imposition of a custodial sentence.  The sentencing judge expressly started from that position.  On the other hand, the respondent had a history of serious mental illness; under the treatment order there had been a significant improvement in the mental health of the respondent over a period of months.

[22]      We have come to the conclusion that after careful consideration the sentencing judge put in place a community based disposal which represents a robust package of supervision and mental health treatment.  This is designed to protect the public and provide a framework for rehabilitation of the respondent.  It has been imposed against a background where the respondent has been either in custody or subject to a treatment order for a significant period of time prior to sentence.  The sentencing judge has put in place a scheme for regular review.  The report from the supervising officer in respect of the first review after three months is very positive.  A striking feature of the operation of the community payback order in the first three months is the contrast between the deterioration of the condition of the respondent after he was discharged from hospital in October 2014 when he failed to take advantage of available supports and the positive response to the current highly structured support framework under the community payback order.  It must also be borne in mind that should there be a breach of the order it will be open to the court in the course of breach proceedings to impose a custodial sentence.  In the particular circumstances of this case we are not satisfied that the sentence is unduly lenient.

[23]      For these reasons we refused the appeal.