Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_76.html
Cite as: [2018] HCJAC 76, 2019 GWD 3-47, [2018] ScotHC HCJAC_76

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Lord Menzies

Lord Turnbull

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2018] HCJAC 76

HCA/2018/000505/XC

OPINION OF THE COURT

delivered by LORD TURNBULL

SOLEMN APPEAL AGAINST SENTENCE

JOSEPH LLEWELLYN

against

HER MAJESTY’S ADVOCATE

Appellant: Gilfedder (sol adv); Gilfedder & McInnes

Respondent: McSporran QC (sol adv), AD; Crown Agent

Appellant

Respondent

11 December 2018

[1] The appellant Joseph Llewellyn is 18 years old. On 20 September 2018 he was

sentenced to a period of 18 months detention as a consequence of having been convicted on

9 May 2018 of a charge of assault by throwing a brick or similar object at another youth,

chasing him and threatening him with violence whilst in the possession of a knife or similar

instrument. The offence was committed along with his older brother. The offence itself took

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place on 17 September 2016, two full years before the sentence was imposed. At the time of

the commission of the offence the appellant was 16 years old and a first offender.

[2] On arguing the appeal on the appellant’s behalf it was submitted that it was neither

necessary nor appropriate to impose a sentence of detention, there being a range of other

methods of sentencing the appellant available and the sheriff had erred in his approach to

sentencing. Particular emphasis was placed on the appellant’s age, his lack of previous

convictions and the reduced nature of the offence of which the appellant was convicted.

[3] After conviction the sheriff was informed that the appellant had been convicted in

2017 of an offence of assault to injury and a contravention of section 38 of the Criminal

Justice and Licensing (Scotland) Act 2010. In respect of that offence he was made subject to a

community payback order with a supervision requirement for a period of 15 months

imposed on 15 June 2017.

[4] Before passing sentence in respect of the offence before him the sheriff therefore

obtained a criminal justice social work report and a report from a clinical psychologist. The

author of the criminal justice social work report noted that overall the appellant attended on

time and engaged well during his period of supervision. Offence focused work had been

completed and he had completed a 10 day Outward Bound course with the venture trust.

The author noted certain concerns due to the appellant failing to attend on occasion and due

to learning, through the appellant, that he had been convicted of a further offence in

September 2017 as a consequence of kicking a door in a fast food restaurant. This resulted in

a fine and a compensation order. The author expressed the view that the appellant

displayed a lack of victim empathy and remorse. Both the social enquiry report and the

report from the psychologist noted that the appellant had a history of ADHD and that he

came from a family with a history of mental health difficulties, particularly in relation to his

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father, and that these had contributed to a disruptive and violent family environment. The

psychological report also noted that the appellant had attempted suicide on 20 September

2016 and had been seen by the local psychiatric emergency team the day before that as a

consequence of some other disruptive events. As a consequence of his attempted suicide

which was thought to have occurred in the context of poor social circumstances and strained

family relationships. He was admitted to the acute psychiatric admissions ward of

Hairmyres Hospital where he remained as an inpatient for around six weeks.

[5] Each of the two reports also identified positive recent changes in the appellant’s

circumstances. In addition to retaining the practical and emotional support of his mother he

had developed a relationship with a young woman who was providing prosocial support.

He had also been undertaking a construction course two days a week. Various training and

safety certificates achieved during this course were tendered along with a letter from a

police sergeant who had delivered a two week team building and leadership course in the

Scottish Prison Service which had been attended by the appellant. The sergeant commended

the appellant’s conduct during this course and offered the opinion that he was a young man

willing to acknowledge and change his offending behaviour.

[6] In his report to this court the sheriff explained that the appellant had been convicted

of what he considered to be a serious offence. He took the view that even taking account of

the appellant’s age and lack of previous offending at the time balancing the issues of public

safety, deterrence and what he took to be the generally unsupportive theme coming from

the two reports available to him that no disposal other than a period of detention was

appropriate.

[7] Having considered all of these matters we agree with the submission that the sheriff

has erred in his approach to sentencing. We do not consider that the sheriff gave sufficient

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weight to the appellant’s age and circumstances at the time of the commission of the offence

or to the lengthy passage of time which had elapsed prior to him being sentenced. In

relation to his circumstances there is one matter in particular which strikes us as being of

importance and which is not referred to in the sheriff’s report. As we have already noted,

the report from the clinical psychologist disclosed that the appellant was suffering from

significant mental health difficulties in the period of time around the commission of the

offence. The offence was committed on 17 September 2016, two days later he required to be

seen as an emergency by the local psychiatric team and was then admitted for a lengthy

period of in-care treatment as an acute patient.

[8] Furthermore the sentencing aim of deterrence which weighed with the sheriff is

generally less relevant than that of rehabilitation in dealing with someone who has offended

at the age of 16. Whilst the sheriff explained in his report that he was, of course, aware of

the cases of Kane v HM Advocate and HM Advocate v Gary Smith to which attention was

drawn in a note of appeal. He expressed the view that these cases were not authority for the

proposition that young offenders could go scot-free or avoid a punitive element to

sentencing. He considered that the recent decision of this court in IG v HM Advocate

[2018] HCJAC 63 supported his understanding.

[9] We confess to having a little difficulty in understanding what the sheriff was

intending to communicate in this passage. Community payback orders and other

non-custodial disposals constitute sentences. No one who is sentenced by the court goes

scot-free. There are also a range of punitive options available to the court apart from

custody. Some can be imposed either in addition to or instead of a community payback

order. The most obvious is the court’s ability to include an order that the offender should

carry out a period of unpaid work in the community. The decision of the court in the case of

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IG was a decision by a bench constituted identically to the present bench and we therefore

feel able to state with confidence that nothing which was said on that occasion was intended

to dilute or distract from the guidance earlier given in cases such as Kane v HM Advocate.

[10] In all of these circumstances, we are satisfied that the sentence imposed is excessive

and we are prepared to quash it and we are minded to impose in its place a community

payback order but in order to do that I require to ask Mr Llewellyn to confirm that he would

be prepared to accept the conditions of such an order.

Lord Turnbull:

Now Mr Llewellyn we have in mind making a community

payback order in this case with a supervision requirement to last

for a period of two years and that would mean that during the

period of that order you were required to comply with any

instructions given by the supervising officer, to notify him of any

change of address or times of working in your normal work. Now

do you understand what I’ve said in relation to that Mr Llewellyn?

Appellant:

Yes, yes.

Lord Turnbull: And would you, would you be prepared to comply with the terms

of that order?

Appellant:

Eh, yes.

Lord Turnbull:

And we also have in mind imposing as part of that order a

requirement to complete 200 hours of unpaid work in the

community during the period of 12 months, now would you be

re-, prepared to comply with that in addition?

Appellant:

Eh, yes.

Lord Turnbull:

And you would have to understand that if you breached the terms

of either of these orders or failed to comply with the instructions

of your supervising officer you could be brought back to this court

and sentenced anew, do you understand that?

Appellant:

Yes I understand.

Lord Turnbull: Alright

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[11] In these circumstances we shall quash the sentence which was imposed and its place

we shall impose a community payback order with a supervision requirement to last for a

period of 2 years and we shall order that as part of that you shall be required to undertake a

period of 200 hours unpaid work in the community within a period of 12 months.