Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Eassie Lord Bannatyne	[2010] HCJAC 3 Appeal Nos: XC406/09, XC405/09 and XC403/09 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in CROWN APPEALS AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against ADAM JAMES McMANUS, WILLIAM McMANUS and ANTHONY JOHNSTONE Respondents: _______

Appellant: Cherry, Q.C., A.D.; Crown Agent

Respondents (A McManus): Ogg, Solicitor Advocate; Tods & Mitchell, Paisley

(W McManus): Hamilton; Gordon Ritchie & Co., Paisley

(Johnstone): McCormick, Solicitor Advocate; BJ Langan & Co., Glasgow

19 January 2010

Introduction

[1] At a preliminary hearing at the High Court at Glasgow on 14 April 2009 each of the respondents pled guilty to the following charge:

"(007) on 22 November 2008 at Sycamore Avenue, Cedar Avenue and Maple Drive, all Johnstone you ADAM JAMES MCMANUS, WILLIAM MCMANUS and ANTHONY JOHNSTONE did assault David Collins, c/o Strathclyde Police, Johnstone and did pursue him, seize hold of him, knock him to the ground, repeatedly punch him on the head and body, repeatedly kick him on the head and body and repeatedly stamp on his head, all to his severe injury, permanent impairment and to the danger of his life;

you ADAM JAMES MCMANUS did commit this offence while on bail, having been granted bail on 11 August 2008 at Paisley Sheriff Court".

The pleas were tendered under deletion, from the terms of the libel in the indictment, of the words "and did attempt to murder him".

The first respondent also pled guilty to the following charge:

"(004) on 8 August 2008 at 173 Willow Drive, Johnstone, you ADAM JAMES MCMANUS ... did assault Thomas McInally, c/o Strathclyde Police, Johnstone and did repeatedly punch and kick him on the head and body all to his injury".

[2] The first respondent was subsequently sentenced to 45 months' detention in cumulo, backdated to 25 November 2008. The sentencing judge indicated that, but for the plea of guilty, the sentence would have been 5 years' detention, with 6 months being attributable to the bail aggravation. The second and third respondents were each sentenced to 3 years' detention, backdated to 16 April 2009. These sentences were discounted from 4 years to take account of their early pleas of guilty. The appellant contends that these sentences were unduly lenient and has brought the present appeals under section 108(1)(a) and (2)(b)(i) of the Criminal Procedure (Scotland) Act 1995, although no issue is taken with that part of the first respondent's cumulo sentence which is attributable to charge 4.

Circumstances of the offence

[3] The offence in charge 7 was the subject of an agreed narrative. At about 3 pm the complainer, who was 34 years old, had become involved in an altercation with the first respondent, after which he was pursued by all of the respondents, before being knocked to the ground and assaulted in the manner libelled. Only the first respondent was personally responsible for stamping on the complainer's head, although all three accepted having kicked him on the head. The complainer was rendered unconscious. He suffered bruising to his face and his right eye was swollen and closed. On admission to hospital he had diffuse anoxic brain trauma due to breathing restrictions as well as diffuse axonal (physical) brain trauma. He spent four days in intensive care. His level of consciousness had not much improved by 1 December 2008. He thereafter recovered consciousness slowly, but had problems associated with brain injury, including speech and comprehension difficulties, and was doubly incontinent. The prognosis was that he would continue to have cognitive defects into the foreseeable future, particularly with problem solving and decision-making. On being discharged from hospital he had required physiotherapy and it was thought that he would not recover the full use of one of his arms. He had been prescribed anti-depressant medication. While he was expected to recover some form of independent living and mundane employment, his parents were expected to have to move in with him to assist with his daily living.

[4] All of the respondents were detained and questioned by the police. The first respondent made no comment. The second respondent admitted chasing the complainer, who he claimed was trying to get a knife, and kicking his head once or twice. He named the others involved in the assault and expressed remorse, stating it had gone too far. The third respondent admitted chasing the complainer and kicking him on the head and body.

The appellant's submissions

[5] The Advocate depute submitted that the sentencing judge had erred by giving insufficient weight to the risk posed by the respondents, the seriousness of the offence, the sustained nature of the attack and the extent of the complainer's injuries. She emphasised the violent nature of the assault and the consequences for the complainer, whose injuries were eloquent of the degree to which the assault was aimed at his head as he lay on the ground. He had suffered severe and lasting damage and could easily have died. The sentences imposed did not reflect the need for retribution and deterrence and were not in line with sentencing practice (cf HM Advocate v O'Donnell 1995 SCCR 745; Munson v HM Advocate 1997 GWD 3 - 106; Esson v HM Advocate 1998 GWD 27 - 1373; Murphy v HM Advocate 2006 SCCR 407). She referred to guidelines issued by the Sentencing Guidelines Council in England ("Assault and other offences against the person", February 2008). Given the gravity of the offence, a more severe sentence was justified (HM Advocate v O'Donnell, per Lord Justice Clerk Ross at page 748; cf HM Advocate v Bell 1995 SCCR 244). Moreover, assuming that 6 months was attributable to charge 4, the starting point of the first respondent's cumulo sentence failed to differentiate his position on the basis of the high risk of his re-offending and his role in stamping on the complainer.

Submissions for the first respondent

[6] Miss Ogg submitted that the grounds of appeal gave no indication that there should be any differentiation in the sentences imposed upon the respondents based on the role which each of them played in the assault. As matters stood, there was nothing to suggest that the sentencing judge had not taken that into account in imposing a higher sentence on the first respondent. It was speculative to apportion 6 months of the initial 5 year sentence to charge 4. The sentence imposed was within the range of appropriate disposals (cf HM Advocate v Booth 2005 SCCR 6). The cases relied on by the Advocate depute could be distinguished and it was inappropriate to rely on English guidelines in this jurisdiction (Flynn v HM Advocate 2003 SCCR 456, per Lord Justice General Cullen at para 87). At the time of the offence the respondent was 17 years old, and had only one previous conviction for which he had received probation. He had now participated voluntarily in prison programmes addressing substance abuse and offending behaviour. The evidence suggested that the offences which he committed were out of character. While the social enquiry report suggested he had "no regrets", it also suggested that he accepted that the violence involved in charge 7 was excessive. Moreover, he had intimated his intention to plead guilty prior to the first preliminary hearing on 20 March 2008 and had never instructed a substantive defence. That demonstrated a degree of remorse and an acceptance of responsibility. While not seeking to minimise its seriousness, Miss Ogg submitted that one could not determine whether the stamping had been largely responsible for the complainer's injuries, given that the other respondents admitted kicking and punching his head.

Submissions for the second respondent

[7] Mr Hamilton submitted that the sentence imposed on the second respondent was not unduly lenient. That involved an extremely high test (HM Advocate v Wheldon 1999 JC 5, per Lord Johnston at page 21). He agreed that the cases relied on by the Crown could be distinguished and that it was not appropriate to rely on English guidelines. The sentencing judge had correctly taken into account the circumstances of the respondent. At 20 years of age, he was still relatively young at the time of the offence. He had co-operated with the police, providing a full admission and had consistently expressed his remorse. While he had some relatively minor previous convictions, he had never served a custodial sentence before: but for his plea of guilty he would be facing a long-term sentence. Since beginning his custodial sentence he had completed an alcohol and drugs misuse module, which demonstrated an attempt to avoid future offending. The agreed narrative suggested that this respondent only kicked the complainer on the head twice. That did not reflect the Advocate depute's description of a sustained attack, and might provide further justification for the lesser sentence imposed.

Submissions for the third respondent

[8] Mr McCormack submitted that the considerations of retribution and deterrence, referred to by the Advocate depute, were not decisive: the circumstances of an offender, particularly a young offender, were also important (Kane v HM Advocate 2003 SCCR 749, per Lord Justice Clerk Gill at para [11]). The starting point of 4 years' detention was a considerable sentence for the third respondent, who was a 17-year-old first offender. Since beginning his custodial sentence he had taken steps towards his rehabilitation (cf HM Advocate v Bell): he had gained the status of "low risk" within the prison system, receiving benefits and added responsibilities as a result. He was now working towards a release date in 2010 and had been offered a transfer to an open regime, which he had rejected pending the outcome of the present appeal. While the sentence imposed upon him might be considered lenient, that was not the test which the Crown had to meet (HM Advocate v Gordon 1996 SCCR 274, per Lord Justice General Hope at page 277). Given his personal circumstances, the sentence imposed upon him was well within the range of reasonable disposals open to the sentencing judge. The appeal should be refused.

Discussion

[9] The sentencing judge described the offence to which all three respondents pled guilty as a savage attack. That description is fully warranted. It involved repeated kicking to the head and body and repeated stamping on the victim's head. The consequences for him were catastrophic. He sustained brain injury with serious long-term consequences. He has been permanently impaired.

[10] The conduct of the first respondent was particularly reprehensible. Although all three pled guilty to having perpetrated an assault which included stamping on the head, it was the first respondent who personally so acted; and he did so repeatedly. All three each kicked the victim more than once on the head. The substantial risk to anyone subjected to an attack of such a nature is obvious. The first respondent's conduct was further aggravated by his having committed this offence while on bail, he having been granted bail after being charged with the offence perpetrated on 8 August 2008 to which he also pled guilty on this indictment. That offence also involved kicking the victim on the head as well as on the body.

[11] The sentencing judge appropriately discriminated among the respondents having regard to their respective conduct. He took as his starting point for the first respondent a term of 5 years' detention and for the second and third respondents a 4 year custodial term. Although it was suggested that the first respondent's conduct in its totality warranted a greater difference between his sentence and that of the other respondents, we are not satisfied that that is so; it is to be noted that the first respondent (newly 17 at the time of the more serious assault) was younger than the others who were 20 and almost 18 respectively. It is not suggested that the extent of the discount allowed for the guilty pleas (25% in each case) was inappropriate.

[12] The social enquiry reports addressed the risk which each of the respondents presented of re-offending. The first respondent was assessed at of high risk, while each of the others was assessed at of medium risk. Unfortunately these assessments were made by different people and seem also to have proceeded on the basis of different assessment techniques. The fact that the first respondent committed two serious assaults with some shared characteristics within a few months of each other is troubling, but we are not persuaded that the sentencing judge failed to have due regard to the risks of re-offending which each presented.

[13] In this case the Crown accepted from each of the respondents pleas of guilty which involved the deletion of an averment that he committed attempted murder. That is an important consideration. Although what they did in fact put the victim's life at risk, the accepted pleas import that they neither wickedly intended to kill him nor wickedly were regardless of whether he lived or died.

[14] In these circumstances, while in our view the sentences imposed were indeed lenient, we are not persuaded that they were unduly lenient. Accordingly, each of these appeals must be refused (Bell v HM Advocate).

[15] We would add that, in relation to our common law offence of assault, we did not find reference to the guidelines issued by the (English) Sentencing Guidelines Council to be of assistance if only because it is apparent that English law catalogues offences against the person in various, different ways.