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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 34
HCA/2023/287/XC
Lord Pentland
Lord Boyd of Duncansby
OPINION OF THE COURT
delivered by LORD BOYD OF DUNCANSBY
in
APPEAL AGAINST SENTENCE
by
JAMES DUNN
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Neilson; John Pryde & Co
Respondent: Miller, AD; Crown Agent
29 August 2023
[1]
The appellant pleaded guilty at a first diet in the Sheriff Court to assault to severe
injury and permanent disfigurement and to possession of a knife contrary to section 49(1)
of the Criminal Law (Consolidation) Act 1995.
2
Circumstances of offending
[2]
The appellant encountered the complainer in the street and asked him if he was
giving evidence in a forthcoming trial, placing the complainer in a state of alarm. The
appellant followed the complainer and lunged at him with a knife leaving him with a 10cm
laceration from his left cheek at the ear lobe to his lower chin. He required 15 stitches and
has been left with a permanent scar.
Sentence imposed
[3]
The appellant is 23 years of age and consequently the Sentencing Young People
guideline applied to him. The sheriff sentenced the appellant to an extended sentence
of 8 years of which 4 years is the custodial part, reduced from 65 months to take account
of the plea. The sheriff explains that he selected a cumulo headline sentence of 72 months
before reducing it to 65 months to take account of the appellant's age at the date of
sentencing. No appeal is taken against the imposition of an extended sentence, or its
length. The consequence of a reduction in sentence, however, would mean that an
extended sentence could not be imposed. In those circumstances Mr Neilson accepted
that it would be appropriate for the court to make a supervised release order.
Submissions for appellant
[4]
In support of the appeal Mr Neilson submitted that the headline sentence of 6 years
was excessive. While prison was inevitable the starting point was excessive. It was
acknowledged that the sheriff had made an allowance for the appellant's age. That was
appropriate given the requirement to do so in the guideline. It did not however fully
reflect the adverse childhood circumstances that the appellant had experienced. These
3
were detailed in the criminal justice social work report. The appellant had had a
remarkably difficult upbringing, characterised by chaotic parental lifestyles. His mother
had problems of addiction. His father had been sentenced to a long term of imprisonment
when he was only 4 years old. Social work had been involved with him throughout his
childhood. The appellant was aware of the harm he had caused and was remorseful.
There was scope for rehabilitation and he had shown a willingness to turn his life around.
He had completed a City and Guilds course in mechanics and obtained a number of other
training certificates. He has had mental health issues and problems with drug and alcohol
addiction. The sheriff had not accounted for the appellant's lack of maturity and increased
potential for long-term rehabilitation.
Analysis and decision
[5]
The sheriff has clearly erred in his approach to the Sentencing Young People guideline.
There is no warrant for assessing a headline sentence and then discounting the sentence
as a result of his age. Nor has the sheriff explained why he selected 10% as an appropriate
discount for age. While we see no difficulty, in appropriate cases, in indicating what
sentence might have been imposed had the young person been an adult, the assessment
of culpability for a young person does not involve a mere discounting exercise of an
arithmetical nature. The correct approach, in our opinion, is to assess the seriousness of
the offence having regard to the level of culpability and the harm. Culpability is assessed
according to the young person's maturity and having regard to the factors outlined in
paragraphs 10 to 12.
[6]
The assessment of harm is not affected by the guideline. In this case it is very
serious. The complainer was slashed across the face with a knife leaving him with a
4
permanent scar. The harm, however, is not confined to the individual complainer. The
offence was clearly designed to intimidate a witness in a criminal trial and accordingly
strikes at the system of justice. The sheriff stated that he had considered a remit to the High
Court. We are not surprised.
[7]
So far as culpability is concerned, while the guideline applied to him, the appellant
is nevertheless an adult. Although the court should not rely solely on age, there is no
evidence that the appellant is less mature then others of his age. The appellant has a
bad record of offending. He has accrued sixteen convictions since the age of 18.
Four convictions are at Sheriff and Jury level for assault either to injury or severe injury
and he has a number of convictions for possession of a weapon. Six convictions have
resulted in custodial sentences. He was not deemed suitable for a community based
disposal due to public protection issues and reservations about compliance with past
orders. He is assessed as maximum risk of re-offending.
[8]
In the appellant's favour the social worker comments that if he addresses his
addiction problems the likelihood of re-offending will be reduced. It is to his credit that
he has obtained qualifications and expresses a wish to turn his life around. So far, however,
he has not taken any opportunity to address either his addiction problems or his criminal
behaviour. While rehabilitation is a primary consideration in sentencing a young person
there is little to suggest that the appellant at this point in his life is amenable to
rehabilitation.
[9]
The sheriff had regard to the report and took into account the appellant's personal
circumstances including his adverse childhood experiences. He assessed the offences as
having a high degree of both culpability and harm. He regarded the appellant as an
5
extremely dangerous individual who posed a high degree of risk to the public. He rightly
considered that in this instance the court's primary concern was protection of the public.
[10]
While the sheriff erred in his approach to the Sentencing Young People guideline it
was, if anything, in the appellant's favour. In all the circumstances we are not persuaded
that the sentence was excessive.
[11]
The appeal is refused.
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