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NOTE OF APPEAL AGAINST SENTENCE BY DILLIN ARMSTRONG AGAINST HER MAJESTY'S ADVOCATE [2021] ScotHC HCJAC_34 (23 June 2021)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_34.html
Cite as:
2021 GWD 23-323,
2021 SCCR 228,
2021 SLT 1033,
[2021] ScotHC HCJAC_34,
[2021] HCJAC 34,
2021 JC 227
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 34
HCA/2021/164/XC
Lord Justice General
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST SENTENCE
following a reference from the Scottish Criminal Cases Review Commission
by
DILLIN ARMSTRONG
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: J Keenan (sol adv); Paterson Bell
Respondent: J McDonald (sol adv) AD; the Crown Agent
24 June 2021
Introduction
[1]
This is an appeal against sentence following a reference by the Scottish Criminal
Cases Review Commission. It concerns the application of the principle of comparative
justice.
2
[2]
The appellant, who was aged 24 at the time of the offence, was convicted of a charge
which libelled that:
"on 31 December 2018 at Delta Drive, Musselburgh ... you ... did assault Rhys
Robert Reynolds ... and utter threats, pursue him, drag him to the ground,
repeatedly strike him on the head and body with knives, and poles, or similar
instruments, restrain him, repeatedly punch, kick and stamp on his head and body,
stab him on the body with a broken piece of pole or similar instrument and
repeatedly strike him on the body with same, all causing him to lose consciousness
all to his severe injury, permanent disfigurement, permanent impairment and to the
danger of his life and did attempt to murder him".
The trial judge imposed an extended sentence of 13 years, 10 of which were custodial.
[3]
There were five co-accused, four of whom were also convicted of attempted murder,
although two of those convictions were in different terms. Of the four who were convicted
of the attempted murder, their ages ranged between 16 and 21. The trial judge imposed
extended sentences on them of between 10 and 14 years (7 to 11 custodial). Ultimately, after
two separate sentence appeal hearings, presided over by a bench of two judges (one of
whom was the same), the court reduced these sentences to periods of imprisonment or
detention of between five and seven years. None of the substituted sentences involved an
extension period.
The offence
[4]
The appellant, along with the five co-accused, was a member of a gang. The
complainer was a member of a rival gang. He went with three members of his gang to the
appellant's house, where they broke windows and a communal door entry system. The
appellant and his co-accused gave chase. During the chase the complainer stumbled, fell
and was set upon by his pursuers.
3
[5]
The attack was recorded on CCTV. The trial judge describes what it shows as brutal.
The appellant's gang engaged in a frenzied attack on the complainer. The images show the
appellant holding a small metallic object in his hand, dragging the complainer to the
ground, before kicking and stamping on him. The appellant was pulled away, but freed
himself, picked up part of a broken metal pole and stabbed the complainer in the lower
back. He struck the complainer with an object, stamped on his back again, punched him
repeatedly to the head whilst he was lying on the ground, and kicked him powerfully to the
head. He stamped on the complainer once more, picked up the broken metal pole, and
struck him in the upper chest or face area. He stamped on the complainer a third time, this
time on the face with his heel.
[6]
The complainer sustained multiple lacerations, some of which were in the region of
vital organs. He suffered multiple skull fractures, with bleeding into the brain, a scalp
wound penetrating to the bone, and an injury to the torso, which required 16 stitches. Many
of the injuries were potentially life-threatening.
[7]
The Criminal Justice Social Work Report recorded that the appellant (i) had a
troubled background, (ii) suffered from ADHD, (iii) has only been employed for one short
period, and (iv) has no qualifications. He offended as a child and was dealt with by
supervision requirements through the Children's Hearing.
[8]
The appellant has a total of 18 previous convictions commencing with racially
aggravated harassment in 2011, when he was sixteen. Six of the convictions are for violence.
In particular, there is an assault to injury and permanent disfigurement in January 2013,
which attracted a CPO with 170 hours of work in the community. At the same time, he was
convicted of a statutory breach of the peace, which the sheriff dealt with by a series of
deferred sentences. Soon after, there was a breach of bail and a consequent further 70 hours
4
of unpaid work. A few months later, a conviction for vandalism added 120 more hours. A
breach of the CPO resulted in a restriction of liberty condition for several months. At the
same time there was an assault to injury and more unpaid work in the community.
[9]
After a break in offending of over two years, in November 2015 the appellant was
convicted of vandalism, statutory breach of the peace and impeding the police. Further
CPOs with work in the community and an RLO followed. In early 2016 there was a racially
aggravated assault, attempted theft and racial harassment convictions which were again
dealt with by deferrals. Meantime, the appellant received his first custodial sentences for
another statutory breach of peace, vandalism and impeding the police. Further short
periods of imprisonment followed for a charge of assault and one of assault to injury and,
later in the year, another statutory breach of the peace and vandalism. In 2017 a short prison
sentence was imposed for an assault to injury and robbery. In the following year, there were
convictions for assault and a statutory breach of the peace. Many of the convictions
involved breaches of bail. He spent substantial periods on remand and, in total, a period of
22 months in custody. The CJSWR described his behaviour as involving a clear pattern of
impulsive conduct and recklessness. His offending had occurred whilst he was under the
influence of drink and drugs and had been consistent and heightened during periods when
he had lacked structure to his life.
[10]
The CJSWR records that the appellant said that he had been drinking and taking
cocaine prior to the offence. He had been under the impression that the complainer and his
gang were intent on stealing the appellant's cocaine. He had been the first to catch the
complainer after a significant chase. The trial judge specifically took this into account when
sentencing the appellant.
5
[11]
The CJSWR records that the appellant lacked insight into the offence and regarded
himself as the victim. There was evidence that he was capable of causing significant harm
(both physical and psychological) to his victims. Although he had been aware that there
was a link to his alcohol and drug intake, he had not engaged with the support which had
been offered to him. The CJSWR recommended a period of post-release supervision. The
appellant was assessed as presenting an imminent risk of serious harm.
Comparative sentencing
[12]
Aaron Thomson (19) was also convicted of attempted murder, but under deletion of
stabbing the complainer with the broken pole. He too was given an extended sentence of
13 years (10 years custodial). Jason Dodds (18) was convicted only of an assault to injury,
having left the scene before the serious violence took place. He received a 7 year extended
sentence (4 years custodial). Dean Renton (21) had pled guilty to the charge, with an
additional element of striking the complainer with a stone or paving slab. The trial judge
would have imposed an extended sentence of 14 years (11 custodial) in his case, but he
reduced this in light of the plea to an 11 year period (8 custodial).
[13]
On 7 January 2020, on appeal, these three sentences were all reduced, with the
extended element being removed. Although a detailed ex tempore opinion was delivered, it
was not published. Mr Thomson was given a determinate sentence of 6 years. Mr Renton
was given one of 5 years, which had been reduced from 7 years for the guilty plea.
Mr Dodds received a CPO involving 150 hours of unpaid work. In reducing the sentences
on Thomson, Renton and Dodds, the court placed emphasis on McCormick v HM Advocate
2016 SCCR 308 (Lady Dorrian, delivering the opinion of the court, at paras [5] and [6]). This
outlined the importance of acknowledging the lack of maturity and underdeveloped sense
6
of responsibility which are to be found in the young. Juveniles are more vulnerable and
susceptible to negative influences and peer pressures. When these factors were combined
with the backgrounds of the appellants and the degree of "provocation" from the
complainer, the sentences imposed by the trial judge could not be supported.
[14]
The appellate court said that there was no basis for an extended sentence. The trial
judge had given no explanation as to why he thought that to be appropriate. The reason for
the court considering that there was no basis for an exten ded sentence, particularly in
Mr Renton's case, is unclear. He had a not dissimilar background to the appellant in terms
of upbringing, including ADHD. He had several previous convictions, although only two of
these were for assault; one with a truncheon in 2018 attracting a 60 day sentence. The
CJSWR did report that he had some awareness of the harm which he had caused. He had
been taking courses in prison to address his issues with alcohol and drugs, notably cocaine.
The CJSWR reported that, due to his history of dangerous and reckless behaviour even at a
young age, the likelihood of further offending was high. He was assessed as being at very
high risk of further offending and of causing serious harm because of the consistent pattern
of violent and impulsive offending, some anti-social attitudes, lack of steady employment,
the use of drugs and alcohol, peer associations and ADHD. There was specific reference to
the court considering an extended sentence in order to focus on the areas of risk and to
support the appellant's resettlement into the community after prison.
[15]
Billy Stewart (aged 16 at the time of the offence) and Kane Reilly (17) were convicted
in identical terms to the appellant. The trial judge imposed an 11 year extended sentence on
Mr Reilly (8 years custodial) and 10 years extended on Mr Stewart (7 years). On appeal,
these sentences were reduced to 6 and 5 years respectively, with no extended period. A
written opinion dated 7 February 2020 was produced but it was not uploaded to the SCTS
7
website. The court focused on the ages of the appellants under reference to Kinlan v HM
with the responsibilities of juveniles in comparison to adults. The court required to take into
account any lack of maturity, capacity for change and the juveniles' best interests. The
sentence must have regard to the Scottish Sentencing Council's Principles and purposes of
sentencing. The court was not satisfied that the trial judge had done this. It regarded the
sentences as "clearly disproportionate given the appellants' age".
Appeal proceedings and the reference
[16]
The appellant originally presented a Note of Appeal dated 13 January 2020 (ie soon
after the reduction of the sentences for Thomson, Renton and Dodds). No comparative
justice point was taken. On 12 February 2020 leave to appeal was refused as unarguable at
first sift. On 12 March 2020, at second sift, the same result followed. There had been an
opinion from a solicitor advocate, which did mention the reduction in the co-accused's
sentences, but which contained no real analysis of the differences, or lack of them, between
the accused. The sift judges described the opinion as anecdotal and vague. It is unfortunate
that, for whatever reason, they did not have access to the ex tempore (but unextended)
opinion in the first appeal or to the Opinion in the second appeal. It is equally unfortunate
that all of the appeals were not heard together. In the appellant's case, this was because he
alone had originally contemplated an appeal against both conviction and sentence. His
appeal followed a different route from those of his co-accused.
[17]
The appellant turned to the SCCRC; the solicitor advocate providing an opinion
which referred to comparative justice. He stated that the appellant's representatives had not
been able to obtain the relevant reports/opinions in relation to the appeals involving the co-
8
accused. That is wrong. They could, of course, have attended the hearing of the co-
accused's appeals. This might have been facilitated by appropriate communication with the
other legal representatives. Even if they had not been able to attend the hearings, the
appellant's representatives would have had a legitimate interest in obtaining such
documentation as might have assisted his appeal. Any request for a transcript of the
decision of 7 January 2020 would have been regarded sympathetically. The ex tempore
opinion in the appeals by Thomson, Renton and Dodds should have been extended,
especially given the existence of co-accused with an interest in the outcome of these appeals.
Similarly, a request for a copy of the opinion in the appeals of Messrs Stewart and Reilly
would have been granted.
[18]
The SCCRC had regard to Thomas v HM Advocate [2014] HCJAC 66, where the Lord
Justice Clerk (Carloway), delivering the opinion of the court (at para [14]), stated that the
principle of comparative justice applied as between co-accused convicted of the same
offence, even where different judges had been involved. A previous sentence on a co-
accused must be a factor to be taken into consideration when sentencing another accused
subsequently on the same charge. The SCCRC did not consider Mr Dodds as a helpful
comparator, given the lesser crime of which Mr Dodds had been convicted. Similarly, the
sentences of Mr Reilly and Mr Stewart had limited value, as they were notably younger than
the appellant. Mr Reilly had a short record, none of which was for violence. Mr Thomson
had critical words of the libel deleted.
[19]
The SCCRC then focused on the headline sentence which had been selected for
Mr Renton (14 years extended; 11 custodial). Mr Renton's involvement, so far as described
in the evidence, included kicking the complainer, walking into an adjacent garden, returning
and kicking him again. He moved away before returning once more, lifting a rock or paving
9
slab above his head and throwing it forcibly at the complainer as he lay on the ground. That
was at the end of the assault and looked as if it had been intended to finish off the
complainer. Mr Renton walked away again then returned, shouted at the complainer and
kicked him to the head with such ferocity that it was likened to a penalty kick in a rugby
match. Witnesses thought that this would prove fatal. Mr Renton walked away again. The
complainer tried to sit up and then got to his feet, before stumbling off in the opposite
direction. Mr Renton returned, picked up the stone, and set off once more in the direction of
the complainer.
[20]
The SCCRC observed that Mr Renton had extensive previous convictions. The
CJSWR referred to his consumption of alcohol and ingestion of drugs. He was said to be at a
very high risk of re-offending and causing physical harm. Mr Renton, like the appellant,
had a poor upbringing and also had ADHD.
[21]
The SCCRC found it difficult to fault the imposition of an extended sentence in the
appellant's case, given his previous convictions and the terms of the CJSWR, which
recommended post-release supervision. The requirements of section 210A of the 1995 Act
had been met. The SCCRC noted that the appellant was one of the main protagonists, being
the person who led the chase and was responsible for bringing the complainer to the
ground. On the other hand, it was Mr Renton who challenged the complainer to a fight and
who threw the heavy stone onto him after the others had left the scene. That appears to
have been the basis for the trial judge's imposition of a greater headline custodial term on
Mr Renton, when compared with that of the appellant and Mr Thomson. On that basis, the
SCCRC reasoned that it did not seem appropriate that the appellant's sentence should now
be significantly longer than the 7 year headline sentence imposed on Mr Renton and which
was subsequently reduced to reflect his plea of guilty.
10
Submissions
[22]
The appellant submitted that the length of the sentence was excessive, even when
looked at in isolation. It had been unnecessary to impose an extended sentence. The
appellant was in a stable relationship and had a two year old daughter. His previous
convictions were all at a summary level. He had disassociated himself from the use of the
paving slab, which had been deleted from the libel against him. The complainer had caused
a disturbance at the appellant's home and this amounted to some degree of provocation,
although not in the legal sense. The CJSWR had confirmed that the appellant suffered from
ADHD. He had not been taking his medication at the time of the offence. An issue of
comparative justice also arose. The sentence was excessive when compared to that of
Mr Renton.
[23]
The Advocate depute was asked if the Crown wished to make any submissions on
the application of the principle of comparative sentencing, but she declined to do so.
Decision
[24]
The principle of comparative justice is an important one. Co-accused persons who
have been convicted of the same, or a similar, offence, ought to attract substantially the same
sentences (Thomas v HM Advocate [2014] HCJAC 66, LJC (Carloway), delivering the opinion
of the court, at para [14]). If it were otherwise, the sentences, or at least one of them, will be
perceived to be unfair. The severity of, or leniency in, a particular sentence on one co-
accused must be a factor to be taken into account in sentencing the other co-accused. Any
significant difference in sentence ought to be capable of rational explanation (Lambert v
Tudhope 1982 SCCR 144 LJC (Wheatley) at 146). That may relate to the backgrounds of the
11
accused, notably their previous convictions (Skilling v McLeod 1987 SCCR 245 LJC (Ross),
delivering the opinion of the court, at 248). It may be that the roles played by each co -
accused were radically different, where the conviction is based on art and part guilt
(Cosgrove v HM Advocate 2008 JC 102, Lord Macfadyen, delivering the opinion of the court, at
para [9]; although cf Simpkins v HM Advocate 1985 SCCR 30, LJG (Emslie) at 35). It may also
be that one or more of the co-accused may be significantly younger than the others. The
exercise involves scrutinising all of the sentences in order to see that the comparison
principle has been fully applied.
[25]
Each case will, of course, depend upon its own facts and circumstances. However,
an adult who has been convicted of an attempted murder of the nature of the attack in this
case can expect to attract a custodial sentence in the region of at least 10 years imprisonment
(see eg 12½ years in Nelson v HM Advocate [2020] HCJAC 31; cf the slightly lower 9 years for
an adult discussed in HM Advocate v Clark 2010 JC 90; and, for more serious attempts, the
16 years in Iqbal v HM Advocate [2018] HCJAC 65). If the offender has significant previous
convictions, as the appellant has, the sentence is likely to be higher than 10 years.
[26]
In this context, there is a marked distinction between a conviction for an aggravated
assault (eg to severe injury and permanent disfigurement/impairment and assault to danger
of life) and attempted murder. In the latter, the quality of the offending behaviour
demonstrates either an intention to kill or such wicked recklessness that it is to be regarded
as murderous. The nature of the crime is very serious indeed. It is interesting to observe
that this type of attempted murder would be classified as Level 3 in the English Sentencing
Council's Guidelines (2009). Where there are serious and long term consequences to the
victim, the starting point should be 15 years for an adult (aged 18 and over) first time
offender with a range of 12 to 20 years.
12
[27]
The submission that, looked upon in isolation, an extended sentence of 13 years, with
a custodial element of 10 years, is excessive is not well founded. Such a sentence would
have been appropriate in this case for an older offender.
[28]
The Scottish Sentencing Council considers a young person to be someone who is
under the age of 25. Its draft guideline on Sentencing young people takes into account the
research on how young people develop physically and psychologically and on the
differences between young and older people. Young people are generally less able to
exercise good judgment and they have a greater potential for rehabilitation. Specific regard
must be had to their maturity, capacity for change and best interests; the latter being a
primary consideration in persons under 18. The aims of the sentence for a young person
include: increasing the likelihood of societal reintegration; reducing the likelihood of
unnecessary stigmatisation; benefiting society by reducing the possibility of re-offending;
offering an opportunity for understanding the consequences of offending; addressing the
underlying causes of the offending; and assisting connections with society.
[29]
That is illustrated here by the second appellate decision of the court. Mr Stewart and
Mr Reilly, who were aged only 16 or 17 at the time of the offence received significantly
lower prison terms than those which might be imposed upon an adult. The sentences would
still be substantial custodial terms; here 5 and 6 years detention (cf 7½ years in HM Advocate
v Clark). Although the exercise should not be seen as purely arithmetic, the older in years,
the greater the assessment of culpability is likely to be. The rationale for the similar sentence
of Mr Thomson, who was aged 19, is not only his youth but the deletion of the reference to
the use of the pole.
[30]
The SCCRC reasoned that a comparison between the appellant's sentence and those
for the teenaged co-accused may not be particularly helpful. That is not strictly accurate. A
13
comparison is necessary to ensure that the sentence imposed upon the appellant is fair ,
when seen against those of the younger offenders. A problem arises when the headline
sentence selected for Mr Renton, who was aged 21, is examined. It is not easy to see why,
when compared to those 5 and 6 year terms imposed on the teenaged participants, a
headline custodial disposal of only 7 years was selected. Given the additional use of the
paving slab, the court is driven to the conclusion that Mr Renton's sentence on appeal was
significantly lenient.
[31]
Nevertheless, Mr Renton's sentence cannot be ignored. It must, as a matter of
comparative justice, be taken into account when dealing with the appellant's appeal. There
is little room for any distinction in relation to record, although the appellant does have a
larger number of assault convictions. There is, however, a significant difference between
their respective ages; the appellant being at the outer limit of the definition of young person
in the guideline. It was he too who seemed to instigate the extreme violence, even if it was
Mr Renton who completed it. The existence of some victim empathy and remorse in
Mr Renton's case, together with his efforts to address his problems in prison, also provide
some room for distinction.
[32]
An extended sentence is appropriate in the case of a violent offender if the period for
which the offender would otherwise be subject to licence would not be adequate for
protecting the public from serious harm (1995 Act s 210A). It is difficult to understand the
reasons for overturning the trial judge's imposition of an extended sentence in Mr Renton's
case. The judge may not have explained his reasons adequately, perhaps because the
imposition of an extended sentence was not specifically challenged in Mr Renton's Note of
Appeal. Standing the nature of the offence, his record and the terms of the CJSWR, an
extended sentence was the obvious course of action.
14
[33]
The SCCRC concluded that an extended sentence was merited in the appellant's case.
The court agrees; standing the violent nature of the appellant's participation in the offence,
his record and the terms of the CJSWR in relation to his lack of remorse, empathy or
attempts to rehabilitate himself in prison. Having regard to the principle of comparative
justice, the sentence imposed by the trial judge must be reduced. In all the circumstances,
the court will substitute an extended sentence of 11 years with a custodial element of
8 years. The appeal is allowed to that extent.
