British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST SENTENCE BY GRANT GAY AGAINST HER MAJESTY'S ADVOCATE [2017] ScotHC HCJAC_62 (08 August 2017)
URL: http://www.bailii.org/scot/cases/ScotHC/2017/[2017]_HCJAC_62.html
Cite as: [2017] HCJAC 62
[New search] [Printable PDF version] [Help]
Page 1 ⇓
Lord Menzies
Lord Brodie
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 62
HCA/2017/000292/XC
OPINION OF THE COURT
delivered by LORD MENZIES
in
APPEAL AGAINST SENTENCE
by
GRANT GAY
against
HER MAJESTY’S ADVOCATE
Appellant: Paterson, Solicitor Advocate; Paterson Bell
Respondent: Edwards QC; Crown Agent
Appellant
Respondent
8 August 2017
[1] Lest there be any misapprehension in the mind of the appellant or of any persons in
court, we should make it clear that we are not concerned with a charge of culpable homicide
in this case. The jury deleted culpable homicide and acquitted the appellant of that element
of the charge and so that is not a matter which is before this court. What we are concerned
Page 2 ⇓
2
with today is whether the sentence of 2 years imprisonment for assault to severe injury was
excessive or not.
[2] The appellant appeared for trial at the High Court in Edinburgh on a charge which
initially, until the jury deleted it, included an element of culpable homicide. The trial began
on 3 March 2017 and finished on 8 March 2017 when the jury returned a verdict of guilty of
assault to severe injury by punching. The temporary judge imposed a sentence on 28 April
2017 of 2 years imprisonment dated from 28 April 2017.
[3] It is argued in the case and argument and again before us today, that this should not
have been a custodial sentence at all and that justice would be served by what Mr Paterson
described as a robust Community Payback Order. If the court were not persuaded of that
view, it is argued that the custodial sentence of 2 years was excessive and we should
substitute a shorter period.
[4] In this case, there are factors that count in favour of the appellant and there are
factors that count against him. These are narrated in the judge’s report to this court. We
take account of all of these factors. In particular, in favour of the appellant, there is a
doctor’s letter which indicates that he suffers from depression, low mood and anxiety; he
appears to have had a good work ethic; he has been a hard worker all his life and is
described as a team player and we have been provided with several letters of reference; he
has been involved in the local community and particularly as a coach and running an
amateur football club; it is reported that he has shown genuine remorse and distress; he is
in a stable relationship with his wife. The Criminal Justice Social Work Report is what we
would describe as neutral - it is certainly not a bad report. He has the benefit of section 204
of the 1995 Act in that he has never served a custodial sentence before and moreover, his
wife is ill and we have been shown a letter from the National Health Service indicating that
Page 3 ⇓
3
a provisional date for surgery has been identified later this month and that she will require
some weeks of care after she is discharged from hospital.
[5] There are however, factors which count against the appellant. He has previous
convictions for crimes of violence, including one conviction for assault to injury and two
convictions for assault of police officers. Moreover, the circumstances surrounding this
offence were regarded by the sentencing judge as of importance and indeed, Mr Paterson
indicated to us today that it was accepted that this was a very serious matter. The trial judge
in his report to us observed at paragraphs 41 to 45 the following:
“The actions of the appellant both prior to the assault and after its perpetration,
aggravated matters. Prior to the assault, the appellant was at home and could have
simply stayed there. However, he chose to return to the public house clearly on the
evidence for the purpose of confronting the deceased. He was clearly annoyed at
some actual or perhaps only perceived slight. His wife described him as being
“pissed off” by the deceased’s gesture which she told him about. After the assault,
knowing that the deceased was in considerable difficulty, the appellant did nothing
to assist him. He simply left the scene, leaving his victim to his fate. He did not seek
any assistance, not even when he arrived home. I also had to bear in mind that this
was not the first time that the appellant had resorted to violence. In all the
circumstances, standing the jury’s verdict, I was of the view that only a custodial
sentence was appropriate in this case.”
[6] The sentencing judge went on to indicate that he chose a sentence of 2 years
imprisonment to reflect the reduction in the charge made by the jury and had the appellant
been convicted of culpable homicide, he would have imposed a longer sentence of
imprisonment. There is no error of law that we can find in the sentencing judge’s reasoning
and we are unable in all of the circumstances of this case to categorise the sentence of 2 years
imprisonment as being excessive and for these reasons, this appeal must be refused.
Page 4 ⇓
4
Aud