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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2025] HCJAC 10
HCA/2024/595/XC
Lord Justice Clerk
Lord Matthews
Lady Wise
OPINION OF THE COURT
delivered by LORD BECKETT, the LORD JUSTICE CLERK
in
CROWN APPEAL AGAINST SENTENCE
by
HIS MAJESTY'S ADVOCATE
Appellant
against
EK
Respondent
Appellant: Keenan KC, AD; the Crown Agent
Respondent: Lenehan KC, McTaggart; John Pryde & Co (for Sloane & Co)
6 February 2025
Introduction
[1]
This is a Crown appeal against a purported extended sentence of 6 years and
4 months with a custodial term (detention) of 3 years and 4 months. There are two grounds:
the undisputed incompetent imposition of an extended sentence raised as a point of law and
undue leniency. After hearing submissions we sustained the first ground of appeal and
2
imposed sentence of new, an extended sentence of 7 years with a 4 year custodial term,
backdated to 15 April 2024. We now give our reasons.
Procedure
[2]
The respondent was 15 when he committed the crimes charged. He appeared on
petition on 15 April 2024 and was remanded in custody. On 10 September 2024, still 15, he
pled guilty relatively early to two charges on a section 76 indictment at the High Court in
Glasgow. He had indicated his intention to plead guilty some 4 months or so after first
appearance.
[3]
Both crimes were committed in Glasgow on 12 April 2024. Charge 1 was an assault
to injury with a knife and charge 2 culpable homicide resulting from a single punch causing
a man of 70 to fall, his head striking the ground with fatal consequences. Charge 2 was
aggravated by the respondent being subject to an undertaking, given very shortly
beforehand, to appear at Glasgow Sheriff Court on 30 April 2024 on charge 1.
[4]
Following an adjournment for a Criminal Justice Social Work Report, the trial judge
passed sentence on 18 October 2024. He reasoned that, taking account of the appellant being
15 years and 5 months old at the time of the offence, an appropriate sentence on charge 1
would have been detention for 2 years and, on charge 2, detention for 4 years. In order to
take account of the total of the sentences and the risk presented by the respondent, resolved
to impose a single (in cumulo) extended sentence. Allowing for the cumulative effect of the
sentences, he envisaged a notional custodial term of 5 years. Allowing for the respondent's
pleas of guilty, he reduced it by one third. Sentence was backdated to 15 April 2024.
3
The circumstances of the offences
Charge 1
[5]
Acting along with another person, the respondent entered a shop at about 4pm
where the complainer, aged 65, was working with two others. He challenged the
complainer to come outside, accusing him of providing alcoholic drinks to an under aged
girl. The respondent and his accomplice directed the two men outside where, during an
altercation, the respondent removed a knife from his trousers and made a slashing motion
towards the complainer, striking him on the arm, causing a 1 inch laceration to his left bicep
that required stitching. The respondent and another person ran away. He was later arrested
at his home at about 8pm before being released by the police 11.15pm on an undertaking to
attend court on 30 April. The knife was a substantial weapon with a blade of 23-24 cm,
about 9 inches.
[6]
On his release, the police contacted the respondent's mother who picked him up,
intending to drive him home. When she asked him what had happened, he got out at traffic
lights and departed.
Charge 2
[7]
On charge 2, the deceased was 70 when he died. He had been drinking heavily since
the afternoon and stopped beside an unoccupied parked car used by the respondent's father.
The respondent, not long after leaving his mother's car, came across the scene on foot and
accused the deceased of urinating on his car. As could be seen on CCTV footage, the
respondent punched him on the head, once, with fatal consequences. The deceased had
been drinking heavily and this may have contributed to his demise, albeit the cause was the
violence used by the respondent.
4
Circumstances of the respondent and CJSWR
[8]
The respondent is now 16. Prior to his remand in a secure unit, on 15 April 2024, he
had lived with his mother and two younger siblings. He has a large and supportive family
and is particularly close to his mother. He had social work support from February 2024 in
response to allegations of offending. Treatment for anxiety was part of the proposed input.
At school he could struggle to control his anger and was referred for counselling. He had
not caused trouble at school for a long time prior to his remand.
[9]
Criminal records suggested that he had two allegations of assault against him, one
dated January 2023 and another in 2024, and there were a small number of other police
charges. He was also charged with threatening and abusive behaviour arising from his
conduct in the secure unit on 8 September 2024.
[10]
The respondent had smoked cannabis on 12 April 2024 but was not intoxicated. He
acknowledged that he had visited the shop of the complainer on charge 1 to confront him
about information he had received from a young female friend about a conversation she had
with the complainer. He regretted his use of the knife and told his father about it when he
went home. He was very remorseful for the loss of life he had caused. He recognised the
impact of his actions on the family of the deceased. He has suffered nightmares since he
committed this crime. He may suffer from mild depression. He was making good progress
with his education in the secure unit. He engaged in constructive activities. He is
considered to have suffered developmental trauma with his parents' difficult relationship a
significant factor. He can be hyper-vigilant to threat. He had engaged well with the
Specialised Interventions Team in the secure unit. There had been some allegations of
outbursts of violence and disorder during his time there.
5
[11]
The respondent was assessed as presenting a high risk of violent offending with risk
to others given a pattern of alleged recent offending, the gravity of the offences he
committed and the harm caused; all demonstrating poor impulse control and the use of
violence to manage his anger. Post-release supervision would be appropriate.
Submissions
Crown
[12]
With reference to the Criminal Procedure (Scotland) Act 1995, section 210A(1)(a)(ii),
the sentence imposed for a violent offence being less than a custodial term of 4 years was
incompetent. The risk of harm presented by the respondent was such that an extended
sentence was necessary in order to protect the public from serious harm from him. The
court should quash the sentence and impose a different sentence, namely an extended
sentence with a custodial term of more than 4 years.
[13]
The court should also find the sentence imposed unduly lenient as it failed
adequately to punish the respondent and express disapproval for his conduct. Both crimes
were unprovoked. The respondent had left home with a knife, and later determined to
confront the complainer on charge 1. He had used it to cause an injury requiring suturing.
The incident started in the complainer's shop, albeit the assault occurred outside in the
street.
[14]
Charge 2 involved an unprovoked attack on a man of 70, vulnerable by his age and
state of intoxication, punching him and killing him. Sentences imposed at first instance in
HM Advocate v Reid, 16 December 2010, unreported, and NRL v HM Advocate
[2025] HCJAC 4, both single charge culpable homicide cases, suggested that the sentence imposed
6
fell below the range reasonably open to the sentencing judge; HM Advocate v Bell 1995
SCCR 244.
Respondent
[15]
Senior counsel observed that the respondent, still 16, was assessed as having a below
average level of cognitive functioning. Despite that, he was maintaining excellent attendance
for schooling and proving a pleasure to teach. He had made good progress in the secure
unit and was making better choices of friends. He was working hard, advancing his
education and was taking advantage of rehabilitative facilities. The report confirmed his
considerable remorse and insight into the consequences of what he had done on charge 2.
The court may conclude that an extended sentence is appropriate but it should be no longer
than necessary, particularly in light of his progress. The decision in NRL, founded on by the
Crown in written submissions, involved a number of aggravating circumstances absent in
the respondent's case. In NRL, there was a prolonged attack; it began with a head-butt;
punches continued to rain on the deceased; the incident only ended when L was pulled
away; and such force was used that L broke a bone in his hand. L had previously attached a
bus driver at his work.
[16]
If sentencing of new, the court would have to consider an allowance for the early
plea. There had been two petitions despite the two offences occurring on the same day.
Difficulties with legal aid held up the taking of instructions to resolve the case, which
nevertheless came notably early, well in advance of indictment.
7
Decision
[17]
Both of the crimes committed were serious and merited detention. Charge 1
involved the use of a knife to cause injury, albeit not of a severe kind. Charge 2 could not
have had graver consequences. A family is left grieving the sudden and wholly unjustified
loss of a man of 70 who was deeply loved, as his sister explained in her heartfelt statement.
[18]
On the other hand, the respondent was a young offender, 15 at the time of the crime
and when sentence was passed, and fell to be treated differently from a person aged 25 or
over. Given his age, any sentence should be less than would be imposed on an adult. He has
greater prospects of rehabilitation than an older person and is to be regarded as less
culpable. As someone under the age of 18, his best interests are a primary consideration.
These principles have been recognised in the judgments of this court for over 20 years eg
Kane v HM Advocate 2003 SCCR 749; Hibbard v HM Advocate 2011 JC 149; NRL at
paras [28] - [32].
[19]
Nevertheless, the gravity of his offending on both charges, and the exceptionally
grave harm caused on charge 2, was such that detention and a period of extension was
necessary in order to protect the public from serious harm in a way which ordinary licence
conditions could not be expected to achieve. The sentencing judge was correct in
concluding that an extended sentence was required.
[20]
For a crime of violence, the minimum sentence of detention permitting an extended
sentence is a custodial term of 4 years; 1995 Act section 210A(1)(a)(ii). As the sentencing
judge candidly acknowledged in his report, the sentence imposed was accordingly
incompetent and we quash it and impose sentence of new.
[21]
Sentencing can be particularly difficult in cases of culpable homicide where the harm
caused can be disproportionate to the violence used. In the whole circumstances, detention
8
was inevitable but it required to be no more severe than necessary to achieve appropriate
purposes of sentencing in this case; Scottish Sentencing Council, Principles and Purposes
Guideline.
[22]
We have considered the circumstances of the cases on which the respondent
founded. In Reid, the accused had formed part of a large group who intimidated and then
caused the death of a delivery driver in the highly aggravating circumstances described in
the opinion of the court in NRL at para [30]. In NRL, the respondent had previously been
charged with assaulting a bus driver and then engaged in a sustained incident assaulting
another bus driver who was simply doing his job, providing a service to the public. There is
force in senior counsel's distinction between this case and NRL. Whilst it is true that there
was no second offence on the indictments featuring in Reid and NRL, the crimes of culpable
homicide had more aggravating features than are present in this case.
[23]
Whilst it caused death for which the respondent bears criminal responsibility, there
was a single punch on charge 2, albeit sufficiently forceful to cause the deceased to fall to the
ground and strike his head with fatal consequences. Noting also the terms of charge 1 and
its aggravating circumstances, we are not persuaded that the sentencing judge erred in his
selection of the individual sentences; 4 years on charge 2 and 2 years on charge 1. We do not
consider that he showed undue leniency.
[24]
We consider an appropriate sentence for the two charges, taking account of the
totality principle ie the need for sentencing to be fair and proportionate, to be an extended
sentence of 8 years and 6 months with a custodial term of detention for 5 years and
6 months. We make allowance for the plea of guilty. Whilst it came relatively early, four
months or so after first appearance, it cannot be said that it was tendered at the earliest
opportunity; Geddes v HM Advocate 2015 SCCR 230. We shall reduce the combined sentence
9
to an extended sentence of 7 years with a custodial term of 4 years and an extension period
of 3 years.
[25]
In light of the sentence we imposed, we did not consider it necessary to include a
further element for the breach of undertaking. As before, sentence was backdated to
15 April 2024.
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