Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_63.html
Cite as: [2018] ScotHC HCJAC_63, [2018] HCJAC 63, 2018 SCCR 343, 2018 GWD 32-416

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Lord Menzies

Lord Turnbull

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2018] HCJAC 63

HCA/2018/000388/XC

OPINION OF THE COURT

delivered by LORD TURNBULL

APPEAL AGAINST SENTENCE

against

HER MAJESTY’S ADVOCATE

Appellant: V Dow; Adams Whyte (Livingston)

Respondent: H Carmichael, AD; Crown Agent

Appellant

Respondent

18 September 2018

[1] The appellant in this case is a child aged 14 years. On 25 June 2018, he pled guilty to

charges two, three and four on the indictment which he faced. Each charge arose out of

conduct which took place on 15 September 2017 at a school in West Lothian where the

appellant was at that time a pupil and aged 13 years. Charge two was a charge of having

with him an article which had a blade or was sharply pointed namely a knife, contrary to the

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Criminal Law (Consolidation) (Scotland) Act 1995. Charge three was a charge of assaulting

LG, a 14 year old pupil at the school, by repeatedly punching him on the head and body to

his injury. Charge four was a charge of assaulting RM, also a 14 year old pupil at the school,

by punching him on the head, struggling with him, whereby he was struck on the head with

a knife, all to his severe injury and permanent disfigurement. The appellant was sentenced

to a cumulo sentence of 15 months’ detention, which the sheriff reduced to a period of

12 months to reflect the utilitarian value of the guilty plea.

[2] It was explained to the sheriff that the background to these incidents was that there

had been ongoing issues between the appellant and a particular group of boys within the

school. The appellant had been assaulted in August 2017 by members of this group. This

assault had been filmed on a mobile phone and the film taken had been posted on social

media. Thereafter, the appellant and the complainer LG arranged over social media to meet

for a fight at the school. The appellant’s explanation was that he decided to take the knife

with him in order to threaten any other members of the group whom he believed might

intervene. The incidents described in the charges occurred at around 8.30am in the canteen

area of the school where many other pupils were present. The pupil LG was punched to the

head by the appellant, he fell to the ground and was repeatedly punched on the head and

body. This fight between the two boys was separated and the appellant began to walk away

whereupon the complainer RM approached him asking him why he was hitting the other

boy. RM then pushed the appellant, these two struggled and engaged in a fight together

during the course of which they fell to the ground. During this incident the complainer was

struck on the right cheek with a knife which was being held by the appellant. The incident

was separated by some older boys and the head teacher attended. RM was seen to have a

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notable and serious facial injury and was taken to hospital. He required five stitches to a

deep laceration on his right cheek.

[3] The court was informed at the date of sentencing, some nine months after the

incident, that the complainer still had a clearly visible scar on his cheek of which he felt very

self-conscious. A victim impact statement was provided to the court in which the

complainer explained the impact which the scar to his face has had upon him and his

concerns about the effect that it will have in the future such as, for example, when he attends

for job interviews. The sentencing sheriff also had available to him the advice of the

Children’s Panel, which was to the effect that they would recommend support rather than

punishment and asked for the case to be remitted to the Children’s Hearing system. He also

had a Criminal Justice Social Work Report which suggested that the case should also be

remitted to follow the advice of the Children’s Hearing.

[4] The sentencing sheriff concluded that the offence was of a seriousness that was not

appropriate to remit to the Children’s Panel. Whilst he recognised that the Panel could no

doubt help provide advice and support, he concluded that such a disposal would not

address other important aspects of sentencing. The sheriff recognised that charge four did

not reflect that the injury inflicted was intentional, however he considered that it was of

crucial importance in assessing the appellant’s culpability to recognise that he had

deliberately taken a knife to school in the knowledge that he was to become engaged in a

fight and that he did that in order to threaten any other members of the group whom he

believed might intervene.

[5] Counsel for the appellant contended that the imposition of a period of detention by

the sheriff was excessive and inappropriate. The background circumstances to the offences

were reiterated and it was submitted that the sheriff erred in failing to attach sufficient

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weight to these. It was stressed that the appellant took the knife because he was fearful and

he did not intend to assault anyone with it. The appellant’s own circumstances were

revisited and the efforts which he had made to engage with support services since the date

of the offence were explained and emphasised. It was also submitted that the sheriff had

erred in failing to give sufficient regard to the appellant’s age and the availability of a

disposal which would address the causes of his offending, thereby reducing the risk of

further harm. Counsel referred to what had been said in the cases of Kane v HM Advocate

2003 SCCR 749 and Smart v HM Advocate [2016] HCJAC 73 concerning the approach to be

taken by the court in sentencing a young offender. Counsel submitted that the sheriff had

placed too much weight on the sentencing aims of retribution and deterrence and on the

nature and the seriousness of the offence, rather than having regard to the need for, and the

availability of, rehabilitation of the appellant.

[6] The report from the sentencing sheriff makes it plain that he was fully aware of the

circumstances surrounding the commission of the offences to which the appellant pled

guilty. He described this as a sad and anxious case. The sheriff recognised that a sentence of

detention could only be imposed if no other method of dealing with the appellant was

appropriate and he recognised that his priority was to prevent further offending by the

appellant and to have full regard to his welfare as a child. He concluded that to take proper

account of the appellant’s actions in taking a knife into school, to take account of the terrible

outcome of the incident and the undoubted concern which existed amongst parents, teachers

and others regarding knives being taken into school, it was important for there to be a

measure of punishment for what he saw as a grave crime. He concluded that it was

important for the court to make it plain that the taking of knives into school would not be

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tolerated and would be dealt with seriously. The sheriff concluded that these objectives

could only be achieved by the imposition of a custodial sentence.

[7] We have carefully considered the information provided by the sheriff to us in his

report and we have given careful consideration to the sensitively and well-presented

submissions on the appellant’s behalf in what is plainly a serious and anxious case. We

consider that the background of bullying which was referred to is a relevant consideration

and one which the sheriff ought to have given due consideration to. We are also impressed

by and take account of certain of the comments in the Criminal Justice Social Work Report.

We note, for example, at page 3 of 8 that the appellant was said to have shown a level of

insight into his offending and it is noted that he had engaged in work to address some of the

issues which have contributed towards his behaviour whilst working alongside the West

Lothian Criminal and Youth Justice Team. This engagement, it was said, suggests that the

appellant does recognise the need to accept the consequences of his behaviour. It is also

noted that the appellant has been affected by his involvement with the criminal justice

system and he appears to have recognised the importance of making changes to his

behaviour for the future. The author goes on to note that the appellant displayed a level of

recognition regarding the impact of his behaviour on the victims which was appropriate for

his age and had shown an understanding of the impact of his behaviour on his family and

expressed regret for this.

[8] These are important considerations and are observations which we think can

distinguish the appellant from many of those who are described in such reports. It is also, in

our opinion, important to recognise that there is no background of trauma or abuse or the

like disclosed in the social enquiry report concerning the appellant. The social enquiry

report reflects a good family background and a caring and loving environment. This again

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distinguishes the appellant’s case from, for example, cases such as Kane and Smart. We

recognise the legitimacy of the sheriff’s concerns as set out in his report and which were

canvassed with counsel appearing on the appellant’s behalf. But we accept and agree that

he has failed to adequately balance these concerns against the positive elements contained

within the social enquiry report to which we have drawn attention.

[9] Nevertheless, the circumstances of the offences disclose a serious matter and given

the consequences of the appellant’s conduct we do not think it is appropriate to remit the

case to the Children’s Panel. The court would wish to keep control of the disposal of the

case and to be in a position to revisit that if necessary. That having been said, we are

prepared to give effect to the submissions advanced on the appellant’s behalf and to quash

the sentence of detention imposed. In its place we shall impose a Community Payback Order

with a supervision requirement for a period of 18 months.