APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Wheatley	[2011] HCJAC 42 Appeal No: XC1/11 OPINION OF THE COURT delivered by LORD BONOMY in NOTE OF APPEAL AGAINST SENTENCE by CONNOR SCOTT THOMAS CUTHILL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Paterson, Solicitor Advocate; Paterson Bell

Respondent: M Hughes A.D.; Crown Agent

1 March 2011

[1] On 21 December the appellant, who was then one month short of his eighteenth birthday, was sentenced to detention under Section 208 of the Criminal Procedure (Scotland) Act 1995 for a period of 58 weeks. He had previously pled guilty to a charge that, while acting with others, he assaulted the complainer by punching and kicking him on the head and body and striking him on the head and body with a bat or similar instrument all to his severe injury. We heard his appeal against that sentence on 1 March 2011. We quashed that sentence and in room thereof placed the appellant on probation for a period of 3 years on the usual conditions, with additional special conditions relating to residing with his father, attending any meeting, class or counselling when so instructed by the supervising officer, the performance of 200 hours of unpaid work, and a requirement that the appellant be within his home between 9.00pm and 7.00am and be subject to remote monitoring of his movements for a period of 12 months. We now give our reasons for doing so.

[2] The attack occurred on 13 March 2010. The complainer was then in the company of the appellant and two others. The appellant asked him to go to a house to see his new bicycle. When they entered the common close there, the appellant punched the complainer on the left hand side of the face, causing him to fall to the ground. When he got up, one of the two others struck the complainer on the back of his head with an implement, whereupon all three of them punched and kicked the complainer. The complainer had to be taken to hospital where he was found to have a 2‑3 centimetre laceration to the back of his head requiring five stitches, a 3 centimetre laceration above his right eye requiring five stitches, and a laceration of approximately a half centimetre above his left eye which required two stitches. In addition his nose was broken.

[3] The sheriff was, therefore, faced with a fairly serious assault started by the appellant and involving three youths acting together. It was inevitable that he should take a serious view of that. The sheriff was also aware that the appellant had been convicted of road traffic offences, breach of the peace and breach of an undertaking to attend court which had been dealt with by the Children's Hearing system ,and was awaiting sentence on an indictment for serious assault and on summary complaint for vandalism. The appellant had been under the supervision of the Children's Hearing since 2002.

[4] The sentence imposed by the sheriff was the appellant's first taste of custody. The sheriff had before him a social enquiry report including a community service assessment, the advice of the Children's Panel, and a report from the Action for Children Ayrshire Crossover Project. These contained reference to a number of unfavourable features of the appellant's personal circumstances, background and behaviour. He was said to be prone to aggressive outbursts, to suffer from ADHD, to have failed to secure employment, to have issues with alcohol, and to have had periods of homelessness. He was assessed as posing a moderate/serious risk of reoffending and medium risk of causing serious harm to others. On the other hand there were glimpses of favourable features, such as signs of a positive work ethic. It must also be recognised that he suffers from a mild learning disability which renders him susceptible to undue influence by undesirable acquaintances. That risk is enhanced by the lack of structure to his day. A number of community based disposals were canvassed as possibilities. The advice of the Children's Hearing was that the court should deal with him.

[5] In the event we were persuaded by the terms of the report from the Action for Children Ayrshire Crossover Project that the sheriff had erred by deciding that custody was the only appropriate method of dealing with the appellant and rejecting the possibility of a tough community based disposal. In particular we considered that the sheriff had failed to give adequate weight to the particular problems that face the appellant at the stage of transition into adulthood, including transition from the support facilities available to young persons into adult community care services. He has been part of the Crossover Project since 8 June 2009. The project worker reported persisting problems and modest progress. Much work remains to be done. In her conclusion she reported:

"Although Mr Cuthill remains a high risk of reoffending it is the writer's view that this is mainly attributed to the effects of his learning difficulty. This issue also increases his vulnerability to influence from peers which may result in him becoming perpetrator of offences and at times victim. Mr Cuthill is currently in the transition from accessing youth services into adult community care services...It has been acknowledged by all relevant agencies, Mr Cuthill and his family that ongoing support is required. The writer has explained to Mr Cuthill that service provision from the Crossover Project will continue until the outstanding matters before the court have been addressed. Due to the length of service involvement the writer has begun the implementation of an agreed exit plan. Service provision from the Crossover Project is due to cease within the next three months. This is mainly as a result of the length of involvement with Mr Cuthill and the acknowledgement that long term retention of the information and skills that he has been encouraged to develop is unlikely to be achieved. It is the writer's view that Mr Cuthill will continue to require support from services throughout adulthood. ..."

[6] The overriding objective of the criminal justice system is the protection of the public. Often that can only be achieved by a custodial sentence which may be imposed for a number of reasons. On the other hand, in dealing with a young offender with problems such as those which are so prominent in the case of the appellant, it is at least as likely that a tough community disposal imposing supervision for a lengthy period will achieve the objective by focussing upon and addressing the problems that are identified as major contributors to his offending, particularly his learning disability and susceptibility to malign influence. We consider that the probation order we made combines tough conditions, which will undoubtedly be perceived by the appellant as punishment, with supervision directed to the improvement of his behaviour.