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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Macfadyen
Lord Nimmo Smith
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[2006] HCJAC 32
Appeal Nos: XC904/05 and XC903/05
OPINION OF THE COURT
delivered by THE LORD
JUSTICE CLERK
in
APPEALS
by
HER MAJESTY'S ADVOCATE
Appellant;
against
PAUL THOMSON and STUART
DICK
Respondents:
_______
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For the appellant: Miss Bain,
AD; Crown Agent
For the first respondent:
Forbes; Lavery Smith, Glasgow
For the second respondent: Keenan,
sol adv: Lavery Smith, Glasgow
28 March 2006
Introduction
[1] These
appeals arise from an incident on the night of 11 June 2004 when the respondents and a third
man, whose identity is unknown, assaulted two paramedics in circumstances that
we shall describe. On 14 June 2004 the respondents appeared on
petition at Glasgow Sheriff Court. In November 2004 Crown counsel instructed
that the case should proceed against Thomson only, there being a doubt as to
the sufficiency of evidence against Dick.
In May 2005 the Crown received a forensic report that provided DNA
evidence against Dick. Crown counsel
then instructed that both respondents should be indicted.
[2] The
respondents were indicted for trial at a sitting on 14 June 2005 along with a third accused named
Steven Thompson. That diet was
discharged on the motion of the solicitor for Dick who wished time to consider
the forensic report. All three accused
were later indicted for trial at a sitting on 11 October 2005. At a continued first diet on 23 September,
the Crown, reasonably enough, accepted Steven Thompson's plea of not guilty,
having established that he was in prison at the time.
[3] Shortly
before the trial diet the solicitors for Thomson offered a plea of not guilty
to charge (1) (breach of the peace) and pleas of guilty to charges (2) (assault
to severe injury) and (3) (assault to injury) under deletion from charge (2) of
allegations of robbery and of striking the complainer with a torch and from
charge (3) of allegations of assault by striking the complainer with a belt and
by closing the ambulance door against his legs.
The Crown indicated that that plea was acceptable. Later still, the solicitors for Dick notified
the Crown of their intention to tender the same plea at the trial diet. In the circumstances the Crown did not
require the witnesses to attend but kept them on standby.
[4] When
the case called for trial, the respondents pled guilty to the following charges
in their amended form:
"[2] On 11
June 2004 at Boydstone Road, Thornliebank, Glasgow at a part thereof near No.
612 Boydstone Road you did, while acting with another whose identity is to the
Prosecutor meantime unknown, assault Stephen Rutherford ... then engaged in the
course of his duties as a paramedic and did repeatedly punch and kick him on
head and body, strike him repeatedly on the body with a belt, all to his severe
injury
you PAUL THOMSON did commit this offence while on
bail, having been granted bail on 24 May
2004
at Glasgow Sheriff Court;
[3] On
11 June 2004 at Boydstone Road, Thornliebank, Glasgow at a part thereof near
No. 612 Boydstone Road you did, while acting with another whose identity is to
the Prosecutor meantime unknown, assault Scott McLeod ... then engaged in the
course of his duties as a paramedic and did repeatedly punch and kick him on
the head and body, strike him on the body with a torch to his injury
you PAUL THOMSON did commit this offence while on
bail, having been granted bail on 24 May
2004
at Glasgow Sheriff Court."
On 8 November 2005 Sheriff Deirdre MacNeill QC
sentenced each respondent to a period of probation of two years with a
condition that he should perform 220 hours of community service.
[5] The
Crown appeals against both sentences on the ground that they are unduly
lenient.
The facts
[6] The
complainers were employed by the Scottish Ambulance Service. At 11.20 pm on the
date libelled they attended at the locus to treat a friend of the respondents
who was drunk and unconscious. The
respondents obstructed them as they treated the patient. Thomson got into the ambulance. Steven Rutherford told him to leave and went
to the driving seat. The respondents
then assaulted him by punching him on the face and kicking him on the
body. Thomson then took off his belt and
repeatedly struck Steven Rutherford with it.
Steven Rutherford fell to the ground during the attack. Scott McLeod tried to help him by pulling
Thomson away. The respondents then
punched and kicked him. One of them
struck him with a torch. The complainers
were able to drive the patient to hospital and were treated there for their own
injuries. Soon after the incident the
police found the respondents hiding near the locus.
[7] Stephen
Rutherford sustained a four centimetres cut on his left eyebrow which required
three stitches. He suffered tenderness
in his left shoulder and multiple bruises to his upper body. He was off work for four weeks. He is now more cautious about his work. He has bought protective clothing. He has constant recall of the incident. Scott McLeod sustained bruising to both of
his upper arms. He was off work for six
weeks. He is now nervous and is
especially cautious when dealing with groups of people.
[8] Thomson
was aged 17 years at the time. No
previous convictions were libelled. Dick
was aged 19 years. He had two previous
convictions for minor offences in 2001 and 2002.
Pleas in mitigation tendered to the sheriff
[9] For Thomson it was said that he and Dick had summoned an
ambulance when their friend collapsed through drink. Thomson too had been drinking heavily. When the ambulance arrived, he tried to
assist the complainers, but was told to leave the ambulance. He felt slighted. He then committed the assaults libelled. He was remorseful and ashamed. The bail order referred to in the charges
related to road traffic offences involving the theft of a motor vehicle which
had now been dealt with by a community service order which he had already
completed. He came from a good family. He was in the third year of a joinery
apprenticeship. He earned £200 weekly,
from which he paid £30 to his mother and £10 towards catalogue debts. No previous convictions were libelled. His plea had been agreed before the trial and
the witnesses had not been required to attend.
[10] For Dick it was said that he had been in the company of Thomson
and others and had been drinking heavily.
He had also taken an ecstasy tablet.
He was remorseful and ashamed. He
had little recollection of the incident, but accepted his guilt of the
offences. His previous record was at a
minor level and was not analogous. He
came from a good family. He was in
full-time employment. He earned £300
weekly. His plea had been agreed at the
trial sitting, but the witnesses had not been required to attend.
The reports and the sheriff's decision
[11] The sheriff continued the cases for reports. She said
"Now, as I said already, this is a shocking incident
involving two public servants who were engaged in the course of their
employment apparently trying to render what assistance they could to your
friend who had become unconscious through the use of drink and apparently
drugs. I'm going to continue bail for
both of you but that does not mean that that rules out a custodial sentence at
all. It is very difficult at this
juncture to see that any other disposal other than a prison sentence could meet
the crimes to which you have pled guilty."
[12] The social enquiry report on Thomson, amplified by further
submissions by his solicitor, indicated that he had a drink problem and that on
the night in question he had drunk three bottles of "fortified wine" -
Buckfast, we assume - before the incident.
He described himself as having been "absolutely steaming." He had no memory of the incident. He had reduced his alcohol intake considerably
in recent months and his mother had sought help for him from the family
doctor. He was working for a firm run by
his father. He was dyslexic and did not
relate easily to people.
[13] The social enquiry report on Dick indicated that he had a
history of alcohol abuse and of taking drugs, including ecstasy; but he had
stopped taking drugs by then and was being randomly tested for drugs and
alcohol as part of his job. His drinking
seemed to be confined to weekends. On
the night of the incident he had possibly had three bottles of Buckfast and the
ecstasy tablet. He had a close and
supportive family to whom he was committed.
The sheriff also had a letter from his employers to the effect that he
was dedicated to his work and had been reliable, honest and trustworthy during
the nine months of his employment.
[14] At the continued diet on 8 November 2005 the sheriff said
"Paul Thomson and Stuart Dick, you pled guilty at
the earliest possible opportunity to the indictment and what you pled to is a
lot less than you were originally charged with so I recognise that. Normally in your situation in respect of both
of you the penalty would be a prison sentence.
However, there are particularly compelling circumstances in both your
cases separately. What I am going to do
is make you the subject, each of you the subject, of a two-year probation order
... A component of the probation order would also be that you will do community
service and in each case the number of hours that you will do are 220 hours."
In her report in the Thomson
case, the sheriff sets out the reasons for her decision as follows:
"In considering sentence this was clearly a case
where imposition of a custodial sentence was not only justified but uppermost
in my mind. However, taking into account
in this case the lack of previous convictions libelled, his apparently
consistent work record, the shame and remorse exhibited by the respondent, his
apparent recognition of the role of alcohol in his offending and his response
to that, the reduced libel to which he had pled and his pre-trial plea of
guilty which entitled him to some discount on sentence, I took the view that a
custodial sentence need not necessarily follow and that a probation order
addressing his offending behaviour with a significant community service
component, as an alternative to custody, was the appropriate sentence.
She expresses her reasons in
Dick's case in similar terms. In his
case she seems not to have regarded his previous record as being of any great
significance.
[15] In her comments on the appeal, the sheriff says that she had
regard to the unprovoked nature of the assaults and to the special position of
members of the emergency services. She
recognised that she could have imposed a custodial sentence, but after careful consideration
felt that the result of the exercise of the required balance was the sentence
that she imposed.
Submissions for the Crown
[16] The advocate depute submitted that the sheriff erred in her
approach to these cases by giving excessive weight to the personal
circumstances of the respondents and failing to give proper weight to the
seriousness of the offences. She failed
to consider what the policy of the court should be where complainers like these
were assaulted. Moreover, she erred in
her approach to the respondents' pleas.
She was wrong in saying that the pleas had been tendered at the earliest
possible opportunity. She had included
the pleas of guilty as one of the factors that she took into account in
assessing the sentences and must have made some reduction in respect of
them. It was impossible to know what the
reduction was. That was not the correct
approach (cf Du Plooy v HM Adv, 2003
SCCR 640; Criminal Procedure (Scotland)
Act 1995, s196(1A)). Moreover, the pleas
had been tendered at the last minute, 16 months after the offences. On any view, the pleas deserved little credit
in the assessment of sentence (cf Booth v
HM Adv, 2005 SCCR 6). Assaults on
medical staff, even with powerful mitigating factors, should normally be dealt
with by imprisonment (eg John Stephen
Paul McNally, [2000] 1 Cr App R (S) 535).
Submissions for the respondents
[17] Counsel for Thomson submitted that the sheriff approached her
task correctly despite her error in relation to section 196(1A) of the 1995 Act. The sentence was lenient, but not unduly
so. The sheriff had weighed all the
relevant factors in the balance, including the public interest, as could be
seen in her report. Probation was a
safeguard against re-offending. It had
never been suggested on his behalf that there was any mitigation in the
circumstances of the offences or in his drinking. The assault in charge (2) was at the low end
of the scale of severity. It was
accepted that the sheriff had erred in saying that the pleas came at the earliest
possible opportunity, but at least the witnesses had not been required to
attend. The sentence was justified by
Thomson's previous good record, his work record, his remorse and his
recognition of the role of drink in his offending.
[18] The solicitor advocate for Dick made similar submissions as to
the sheriff's approach. While she had
erred in the manner in which she gave weight to the plea of guilty, some
discount had to be given for the plea.
Until the DNA evidence became available, there was insufficient evidence
against Dick. That evidence became
available to the defence only in July 2005.
At a meeting on 1 August
2005 the Crown had informed the defence that there was no
prospect of its accepting a restricted plea from Dick unless Thomson pled. The social enquiry report favoured a
non-custodial disposal.
Decision
[19] The issue in both cases is not whether the sentence imposed was
lenient, but whether it was unduly so (HM
Adv v Bell, 1995 SCCR 244). In our opinion, it was.
[20] We think that the sheriff was right not to regard Dick's
previous convictions as material. Since
the circumstances of the respondents were similar in all other material
respects, we agree with her approach in not discriminating between them. We consider, however, that she erred in
taking the view that the offences to which the respondents pled guilty were "a
lot less" than those libelled and that the pleas had been tendered "at the
earliest possible opportunity."
Gravity of the offences
[21] In our opinion, notwithstanding the restricted nature of the
pleas, the offences to which the respondents pled guilty were scarcely less
serious than those libelled. The breach
of the peace charge was trivial by comparison with charges (2) and (3); and the
deletions from those charges left intact their essential gravity, namely that
the respondents committed unprovoked assaults on two members of the emergency
services, in one case to severe injury and in the other to injury, when they
were attempting to treat an unconscious patient.
[22] We consider that on any view the sentences failed adequately to
reflect the gravity of these offences or to serve to deter such assaults.
Sentence discount
[23] In our opinion, the sheriff erred both in her approach to the
question of a sentence discount and in her allowance of it.
[24] The correct approach is for the court to consider the nature
and circumstances of the offence, the accused's record and the factors advanced
in mitigation, and to assess what the appropriate sentence should be. Then, and only then, the court should
consider the stage at which the plea was tendered and decide what discount, if
any, to make from the sentence that would otherwise have been imposed.
[25] It is obvious that the sheriff did not see this as a two-stage
process. She simply included the guilty
plea as one of the factors in the assessment of sentence. She must therefore have made some allowance
for the plea in each case; but it is impossible to discern from her report what
the allowance was.
[26] In our opinion, the sheriff was wrong to make any such
allowance. She erred in thinking that
the pleas had been tendered at the earliest possible opportunity. They were tendered at the last minute. The trial diet was not discharged and the
witnesses were kept on standby. These
pleas therefore served none of the purposes countenanced in Du Plooy (supra). Moreover, until the
last minute the witnesses, and the complainers in particular, had the worrying
prospect of having to give evidence.
There was a clear case against both respondents on the charges to which
they pled and, so far as we can see, no statable defence.
[27] The solicitor advocate for Dick submitted to us that his delay
in pleading was caused, in part at least, by the fact that the Crown had
insufficient evidence against him until the DNA report was obtained. That consideration is irrelevant. If an accused person has committed the crime
charged, he can plead guilty to it at the outset and benefit from his plea by
way of discount when the sentence is assessed; or he can defer pleading until
he is sure that the Crown has a corroborated case, in the knowledge that a
sentence discount may be reduced or refused altogether. That is the choice that he must make. He cannot have it both ways.
[28] In any event, the argument is unstatable in this case since the
solicitor advocate for Dick accepts that the defence had the DNA report three
months before the plea was tendered.
Disposal
[29] We shall allow the appeals, quash the sentences imposed and
continue these cases for a hearing on the question of the sentences that are to
be substituted.
