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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
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Lord Justice General
Lord Nimmo Smith Lord MacLean
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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 _____________ |
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[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
[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 (
[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