Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 88

HCA/2016/000321/XC

Lord Menzies

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL AGAINST SENTENCE

by

HARRY FINNEGAN

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  F Mackintosh;  Faculty Services Limited

Respondent:  M McFarlane AD;  Crown Agent

14 September 2016

[1]        The appellant appeared at Dundee Sheriff Court on 24 May 2016 and tendered a plea of guilty under certain amendments to a charge on an indictment that on 15 April 2015 at a public house in Dundee he did assault Kevin Simpson and did repeatedly push him, punch him to the ground and repeatedly punch and kick him on the head and body to his severe injury and permanent disfigurement.  It will immediately be appreciated that that charge of assault to severe injury and permanent disfigurement is a serious charge and we make it clear at the outset that the court regards the kicking of a person on the ground about the head as a very serious matter. 

[2]        As the sheriff has noted in his report to us at paragraph 8: 

“The kicking was a sustained assault on a man in a vulnerable position.  The licensee had to restrain the appellant physically.  Kicking on the head in particular, which by his plea the appellant admitted, is dangerous.  Your Lordships’ court has recognised that repeatedly.  I have known it to inflict brain damage and I have known it to kill.  On this occasion the complainer did not suffer such catastrophic consequences but he did suffer injuries which are admitted to have been severe and he now has a scar on his face and some psychological consequences.” 

We accept all of those observations made by the sheriff and agree with them.  However, we also take account of the particular circumstances which gave rise to this serious incident, in particular that the appellant who was aged 19 at the time of the offence had that day attended the funeral of a friend who had committed suicide and he was as a result upset and drank too much alcohol following upon the funeral.  We take into account that he was of previous good character.  He is a first offender and he had a good work record. 

[3]        We take account of his age and we also take account of the statutory provisions which Parliament has enacted particularly at section 207(3) of the Criminal Procedure (Scotland) Act 1995 which provide “the court shall not impose detention on an offender under 21 years of age unless it is of the opinion that no other method of dealing with him is appropriate and the court shall state its reasons for that opinion”.  We were referred in submissions on behalf of the appellant to the observations of this court in HM Advocate v Smith 2014 SCCR 39 in particular at paragraphs 19 and 20 where the court quoted the well-known observations of Lord Justice Clerk Gill, as he then was, in Kane v HM Advocate 2003 SCCR 749. 

[4]        Unusually the very experienced sheriff in this case has not addressed expressly the provisions of section 207(3) of the 1995 Act and there is no note of the court’s reasons in the court minutes, as is required by the statutory provision nor surprisingly are reasons given in the sheriff’s report to this court.  We take account of that omission.  We also take account of the fact that the Criminal Justice Social Work Report assesses the appellant as being at low risk of offending and we take account of the fact that he appears to have supportive employers and we have been provided with a letter of reference in that regard, and a family which is supportive of him;  and we are told members of his family are in court to support him today. 

[5]        In all these circumstances, whilst reiterating that assault to severe injury by kicking repeatedly to the head and body is a very serious offence, we have reached the conclusion that the sheriff erred in concluding that only a custodial sentence was appropriate in the particular circumstances of this case. 

[6]        We are accordingly persuaded that the sentence imposed by the sheriff must be quashed and provided that the appellant indicates that he is prepared to comply with a non‑custodial order we will impose a Community Payback Order with various requirements. 

[7]        If the matter had been before us initially we would have imposed an unpaid work requirement at a starting point or headline of 300 hours of unpaid work.  However, we take into account the period of time that has been spent in custody and accordingly we reduce the hours of unpaid work which we would otherwise have imposed and we shall impose an unpaid work requirement of 200 hours, that being discounted from 250 hours to reflect the early plea of guilty.  Those 200 hours of unpaid work will require to be completed within 6 months of today’s date. 

[8]        We shall also impose a supervision requirement of 6 months duration and finally we shall impose a Compensation Order requiring the appellant to pay compensation to the complainer Kevin Simpson that by making payments to the Sheriff Clerk at Dundee Sheriff Court totalling £800, that being payable within a period of 16 weeks at the rate of £50 per week and in any event not later than 2 months before the conclusion of the Supervision Order.