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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Anderson [2007] ScotHC HCJAC_13 (26 January 2007)
URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_13.html
Cite as: [2007] HCJAC 13, [2007] ScotHC HCJAC_13

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2007HCJAC 13


APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Nimmo Smith

Lord MacLean

 

 

 

XC690/06

 

 

 

OPINION OF THE COURT

 

delivered by

 

LORD JUSTICE GENERAL

 

in

 

CROWN APPEAL AGAINST SENTENCE

 

by

 

HER MAJESTY'S ADVOCATE

 

Appellant

 

against

 

JOHN ANDERSON

Respondent

_____________

 

 

 

 

26 January 2007

[1] This is an appeal by the Crown against a disposal by the sheriff at Arbroath by which she sentenced the appellant to 300 hours of community service and a compensation order of £1,500 to the victim following a restricted plea of guilty to the indictment which had been served upon him.

[2] The respondent was served with an indictment which originally comprised three charges, the first of committing a breach of the peace at a date between 1 and 31 July 2005, the second of contravention of Section 52(1) of the Criminal Law (Consolidation) Scotland Act 1995 on 11 September 2005 and lastly, and by far the most serious charge, of assault to severe injury, permanent disfigurement and danger of life on the latter date. The plea of guilty was under deletion of the first and second charges and under restriction of the third charge to the extent of removing from it the alleged aggravation of permanent disfigurement.

[3] The circumstances of this offence were that the respondent and the female victim of his attack were living together, having done so for some six to eight weeks prior to the incident in question. She was then some 50 years of age and he a few years younger, about 44. In the course of 11 September 2005 both of them appear to have consumed a substantial amount of drink and then returned to the house which they were sharing. There it was that the offence in question took place. It involved the kicking and punching of the victim on her head and body as well as seizing her by the arm and leg. The victim did not obtain help in early course but ultimately left the house wearing only a dressing gown and was found by a friend covered in blood and extremely distressed. A passing police vehicle stopped, an ambulance was summoned and the complainer was taken to the Accident and Emergency Department at Ninewells Hospital where she was found to have suffered five broken ribs to her right side. The broken ribs had caused a puncture to her lung and various complications which resulted in difficulty in breathing. A chest drain was inserted and the lung re-inflated. The surgeons required to perform a tracheotomy to allow her to breathe more easily. She subsequently developed pneumonia during which the surgical wound also became infected. She was in hospital for just over a month receiving treatment, at some stages in the Intensive Care Unit and then in the High Dependency Unit. The treating surgeon advised that the complainer's life was not in danger as a result of the rib injuries but that the subsequent pneumonia, which was a direct result of those injuries, could have been life threatening. That last comment justifies the aggravation of danger to life which was referred to in the charge to which the plea of guilty was tendered. It appears also that, as was described to the sheriff, the complainer suffered psychological consequences of the assault, having difficulty in sleeping, being prescribed anti-depressants and being transformed from a person with a happy and out-going nature to one who was a recluse, afraid to answer the telephone and the door. Unsurprisingly the relationship between the complainer and the respondent came to an end immediately following that incident.

[4] The Advocate Depute submitted that in these circumstances there had been an extremely serious incident of domestic violence and that there was a complete absence of mitigation. Drink having been consumed was no excuse, albeit it might be an explanation. He also drew attention to the circumstance that the respondent had a number of previous convictions. Two of these were for assault although these were relatively elderly, the first in 1993 and the second in 1994, when he had been put on probation for two years with 150 hours community service order and a £400 compensation requirement. He had also on one further occasion, in relation to an unrelated matter, also been put on community service.

[5] The sheriff has referred in her report to various aspects which bore on mitigation of this offence. These were elaborated to us by Mr McDonald on behalf of the respondent. He submitted that what had happened was not outwith the range of the disposals reasonably appropriate to the sheriff and that accordingly this was not an unduly lenient sentence, albeit it might be described as lenient. He properly drew our attention to the circumstance that, because the respondent had not previously served a term of imprisonment, a custodial sentence was legitimate under Section 204(2) of the Criminal Procedure Act (Scotland) 1995 only where no other method of dealing with the respondent was appropriate. He accepted the narration, as had been accepted in the court below, of the circumstances of this offence. He drew attention to the plea having been tendered at a continued first diet. That plea had been tendered only at that stage because of a number of circumstances which required investigation. One of these was that, because the respondent had only limited recollection of the offence in question, further investigations required to be made, including the obtaining of police statements of admissions which he had apparently made to officers shortly after the events in question. These had taken some time to come to hand. There was also a question as to whether or not there was any defence to any of the aggravations. As noticed, one of the aggravations was deleted from the indictment and it was only after advice had been obtained and considered from a consultant surgeon, and also advice from counsel, that the view was taken that it was appropriate to give the advice which had led to the restricted plea being tendered. Mr McDonald also drew attention to a factor which he described as peculiar to the respondent's position, namely, that he held a position of importance, that being described as of a "crucial" employee, in the firm where he had for some time been employed and that a number of employees might be affected if he were sentenced to a custodial term. The sheriff was told about this matter and she refers to it in her report to us - although it does not appear that she regarded it at the time as of sufficiently striking importance to refer to it in the course of her sentencing statement.

[6] We are satisfied by the submissions made on behalf of the Crown that this sentence was truly an unduly lenient sentence. It undoubtedly was a very serious incident of domestic violence and involved very severe injuries and other sequelae to the complainer. In the respondent's case the offence is further aggravated by his previous convictions for violence, albeit some time ago. He appears not to have learned from the non-custodial orders then made. As the Advocate Depute indicated, there was not only an absence of mitigation but also a need to deter others from domestic violence. We take into account all that has been said in mitigation including the question of the possible affection to the employment of others - although it is not clear from the information that was placed before the sheriff or us that such employment would necessarily be imperilled if a custodial term were imposed on the respondent.

[7] We are satisfied in the whole circumstances that the only method of dealing appropriately with the respondent in this case was by a custodial sentence. On the other hand we recognise that, although his plea of guilty was tendered only at a continued first diet, necessary investigations required to be made before the requisite advice could be given. In all the circumstances we have come to the view that, before taking into account the circumstances of the early plea, an appropriate disposal would have been a custodial sentence of three years imprisonment. Having regard to the early plea we shall discount that sentence by six months. Accordingly we shall allow this appeal, quash the order below and impose a sentence as from today's date of 30 month's imprisonment.

 

HR

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URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_13.html