APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Johnston Lord Nimmo Smith Lord Eassie	[2007] HCJ 06 XC470/06       OPINION OF THE COURT   delivered by   THE HONOURABLE LORD JOHNSTON   in   NOTE OF APPEAL AGAINST SENTENCE   by   HUGH MULLEN   Appellant   against   HER MAJESTY'S ADVOCATE   Respondent _____________

 

 

5 July 2007

This is a Crown appeal against an imposition of a sentence of 300 hours community service imposed after trial by the trial judge in the context of a verdict of the jury of attempted murder.

The background to the matter, as disclosed to us, both in submission and in the trial judge's report, is that it appears both the complainer and the now respondent, then accused, were in the same public house on the evening in question, though not necessarily together. It appears that the respondent had from time to time worked for the public house but was not so doing on that evening. It was stated to us that the complainer was extremely drunk, created a disturbance and was in fact ejected from the pubic house. At that time, he apparently directed some remark of some force towards the respondent, who followed him out of the public and down the street for a short distance. It is not quite clear for how long. Some mention was made that it was merely a walk of two or three minutes. However, what matters is that the respondent, using a knife with which he either armed himself in the pubic house or already had with him, stabbed the complainer repeatedly, six times in all according to the medical evidence, without any provocation or any other confrontation, at the time of the stabbing, with the complainer. The complainer was hospitalised and had to undergo surgical treatment in respect of the most serious wound which was to the right upper quadrant of his abdomen. The jury's verdict reflects the fact that they were plainly satisfied that upon the evidence, the respondent had, at the very least, revealed a total lack of regard and exhibited recklessness towards the life of the accused in carrying out this unprovoked attack.

The presiding judge, having studied various report including a Social Enquiry Report, reached the view that a non-custodial sentence was appropriate albeit at the highest end of a community service order and he so ordered. The Crown bring this appeal to this court upon the basis that in so doing he acted or imposed an unduly lenient sentence, the test for which is set down in various cases but most notably in that of Her Majesty's Advocate v Bell 1995 SCCR 244 where the then Lord Justice General said:

"That to be unduly lenient a sentence must fall outside the range of sentences which the judge at first instance, is applying his mind to all the relevant factors, could reasonably have considered appropriate, weight always being given to the views of the trial judge especially in a case which has gone to trial and he has the advantage of seeing and hearing all the evidence."

We may say that we accept that position at once with regard to the position of the trial judge.

The basic submission for the Crown was that, this was a verdict of attempted murder. A knife has been used which the respondent had plainly armed himself. There were six wounds, there was no provocation upon any view of the matter. There should be in the public interest, no leniency in imposing a sentence for this type of crime, having regard to the prevalence of the carrying and use of knives in our current community which the courts have deprecated and must do their best to resist. We accept in passing, that the respondent has always denied any involvement in matter and indeed went to trial on an issue of alibi, which the jury plainly rejected.

Miss Ogg on behalf of the respondent submitted that it was quite inappropriate to regard a custodial sentence as inevitable simply because a knife had been used causing an assault. In this respect, she refers to two cases, Her Majesty's Advocate v Herron 1998 SCCR 449 and Her Majesty's Advocate v Gilmore 1004 SCCR 117. These cases she submitted were indications that the court would not necessarily impose a custodial sentence even when a knife was being used. In response to those submissions, the Advocate Depute simply stated to us that these were both exceptional cases, having a background which did not apply in the present case, albeit different in each of the two cases. The present case would appear to suggest, he submitted, that there was really no background to the matter at all beyond what might have happened between the two parties in the public house in terms of a verbal exchange or a one way verbal comment.

Having looked at the matter carefully in the context of Bell and also in the context of the case of Her Majesty's Advocate v Jamieson 1996 SCCR 836 where the court held that it is only in the most exceptional cases that a crime of assault with a knife does not justify a custodial sentence. We cannot find any mitigating factors in this case which can be regarded as exceptional so as to follow the line of a non-custodial imposition. We consider that the trial judge has been unduly influenced by the Social Enquiry Report which, in itself, is not of great assistance. The judge has completely failed to take into account the nature of the crime, in the sense of the jury's verdict, the lack of provocation, the number of stab wounds and perhaps most important of all, and we attach great significance to this, has paid no attention to the public interest in terms of both retribution and deterrence. This court can only repeat that it would never take a lenient view of crimes involving knives, not least when it comes to a verdict of attempted murder after trial. In these circumstance, we are entirely satisfied that the sentence imposed by the trail judge in this case is unduly lenient in terms of the statute we respect his views on the matter and therefore we consider that without using the word "inevitable", that the appropriate sentence in this case must be one of custody. This appeal is allowed.

 

 

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