APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lady Smith Lord Marnoch	[2010] HCJAC 83 Appeal No:XC704/09 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in causa HER MAJESTY'S ADVOCATE Appellant; against STUART COSSAR Respondent: _______

Appellant: Scullion, AD; Crown Agent

Respondent: McCormack, Sol Adv; Dunipace Brown, Cumbernauld

13 August 2010

Introduction

[1] The respondent was born on 29 June 1989. On 3 September 2009 he pled guilty at the High Court of Justiciary in Edinburgh to three charges in the following terms:

"(1) On 9 May 2009 at Glenhove Road, Cumbernauld, you Stuart Cossar did, while acting with another, assault Christopher Mellors, c/o Strathclyde Police, Cumbernauld, and did attempt to strike him with a piece of wood, strike him on the body with said piece of wood, chase him and repeatedly strike him on the head and body with a knife to his severe injury and permanent disfigurement.

(2) On 9 May 2009 at Hume Road, Cumbernauld, you Stuart Cossar did assault Daniel Brian Collins, born 1 May 1994, c/o Strathclyde Police, Cumbernauld, and did chase him, seize hold of him and repeatedly strike him on the body with a knife to his severe injury and permanent disfigurement.

(3) On 9 May 2009 at Darroch Way, Cumbernauld, you Stuart Cossar did assault Iain Gorman, c/o Strathclyde Police, Cumbernauld and did strike him on the body with a knife to his severe injury, permanent disfigurement and to the danger of his life."

The respondent pled guilty at the first preliminary hearing in respect of the indictment which he faced. His intention to tender those pleas of guilty had been intimated to the Crown on 31 August 2009.

[2] In moving for sentence the Advocate depute tendered a schedule of previous convictions relating to the respondent. That schedule disclosed that on 6 November 2006 the appellant had been convicted in Airdrie Sheriff Summary Court on a number of charges, including a contravention of section 49(1) of the Criminal Law (Consolidation)(Scotland) Act 1995, arising out of the respondent's possession of a knife. The schedule also disclosed that on 30 January 2007 the respondent had been convicted in solemn proceedings in Airdrie Sheriff Court of a charge of assault to severe injury. In respect of that conviction a sentence of 3 years detention had been imposed, together with a supervised release order in terms of section 209 of the Criminal Procedure (Scotland) Act 1995 Act. The order made was for a period of 12 months and was subject to a condition that the respondent undergo drug and alcohol counselling.

[3] On 3 September 2009, the current proceedings were adjourned for the preparation of a Social Enquiry Report. On 1 October 2009 the sentencing judge imposed a sentence of 3 years detention on charge 1, 4 years 6 months detention on charge 2 and 4 years 6 months detention on charge 3. He ordered those sentences should be served concurrently and that they should all be backdated to 9 May 2009. All three sentences were discounted by 25%, on account of the early pleas of guilty; the sentence on charge 1 from 4 years and the sentences on each of charges 2 and 3 from 6 years. The appellant contends that the sentences were unduly lenient and has brought the present appeal under section 108(1)(a) and (2)(b)(i) of the Criminal Procedure (Scotland) Act 1995.

Circumstances of the charges

[4] The circumstances of the three offences as placed before the sentencing judge in an agreed narrative were as follows:

"Charge 1

At approximately 12 mid-day on Saturday 9 May 2009 the complainer Christopher Mellors and his friends Martin and John Coulter were all walking on Glenhove Road, Cumbernauld when they were passed by an unknown male on a pushbike who began to shout at them saying:

"Look at youse, three of youse and one of me, shitebags".

The unknown male then jumped off his bike and began to throw boulders at them. He then jumped back on his bike and disappeared from sight and round a corner. The complainer Christopher Mellors and Martin and John Coulter then went to Christopher Mellors mother's address at 94F Glenhove Road. Christopher Mellors tried to gain entry by pressing the security buzzer to gain entry to the flats. However at this time the unknown male reappeared but now he was in the company of the accused Stuart Cossar. The unknown male was now in possession of a large stick with nails coming out of it and shouted to the complainer:

"Are you Chris Mellors?".

The complainer Christopher Mellors said that he was someone else. The accused Stuart Cossar chased both Martin and John Coulter up to a nearby shop. Once both were inside the shop, the Coulters held the door tightly closed. During this time the complainer Christopher Mellors continued to press on the buzzer of the entry system of the flats in an attempt to gain entry. At this time, the unknown male and Stuart Cossar reappeared at the close entrance. The unknown male swung the piece of wood at the complainer Mellors but missed. The complainer Mellors managed to run off to the end of a nearby park but the unknown male caught up with him and swung the piece of wood and caught Mellors on the shoulder with it, but the complainer Mellors managed to run to a nearby car wash premises. As he was running, the complainer Mellors heard the unknown male shout to the accused Cossar:

"Don't plug him, don't plug him."

As the complainer Christopher Mellors approached the car wash, the accused Stuart Cossar was at the complainer's side when he (the complainer Mellors) felt two sharp pains in his back. At first the complainer Mellors thought that he had been punched, but he then felt blood dripping down as he fell to the ground. However he immediately got back up and ran away and made his way back to his mother's flat where his mother was. An ambulance was thereafter contacted.

Medical Evidence re Charge 1

The complainer Christopher Mellors was taken by ambulance to the Accident and Emergency Department of Monklands District General Hospital. On examination, he was found to have sustained two puncture wounds to the back of his right lower chest. He also had a collapsed lung (pneumothorax) caused by the puncture wounds.

A chest drain was inserted to remove a small amount of blood and air, and this process was successful. Painkillers were then given and the wounds were left open. The complainer was sent for a scan of his chest, abdomen and pelvis which was clear with only superficial injuries. Only one of the puncture wounds punctured the complainer's lung.

The complainer made a full recovery, but he will have permanent scarring from the wounds and insertion of the chest drain.

Charge 2

This incident occurred at approximately 1705 hours on Saturday 9 May 2009, approximately five hours after incident one and in the same area of Cumbernauld. At approximately 1705 hours on the afternoon of Saturday 9 May 2009 the complainer Daniel Collins (aged 15) was with his friends Ian Brown, Patrick Owen and Lee Haggerty walking towards the Seafar area of Cumbernauld. They were heading to the top of the road near to a bridge known locally as "the Snakey Bridge". At this time they met up with a boy called Rikki McLelland. As they walked along Hume Road (that takes you to the Snakey Bridge and over towards Kildrum) they saw three boys walking over the bridge towards them but at this time weren't sure who these boys were. However, as the three males got closer, Rikki McLelland was overheard by the witness Ian Brown saying:

"Oh shit"

and then ran down the footpath towards a tunnel onto Darroch Way. The complainer Daniel Collins and Patrick Owen, Daniel Tomlinson, Lee Haggerty and Ian Brown all proceeded to walk by the three males, but instead of walking over the bridge, they took the path at the side of the bridge. At that, the three males came round behind the complainer Daniel Collins. The complainer Daniel Collins turned round and saw that one of the three males was the accused Stuart Cossar. He saw the accused Stuart Cossar had a knife in his hand that he was holding down at his side. The complainer Daniel Collins and his friends Patrick Owen, Daniel Tomlinson, Lee Haggerty and Ian Brown thereafter started to run away, but the accused Stuart Cossar ran by Ian Brown and Lee Haggerty and grabbed hold of the complainer Daniel Collins by the neck with his left hand and swung him round and at the same time began to swing the knife at the complainer Daniel Collins with his right hand. The accused Stuart Cossar swung the knife at the complainer Daniel Collins' back, shoulder and the elbow of his jacket and stabbed him a number of times through his jacket but these blows did not penetrate through the complainer's jacket into his body. The accused Stuart Cossar then again attempted to stab the complainer and it was at this time he struck the complainer twice on the right elbow. The complainer Daniel Collins was eventually able to get himself away from the accused and run off. He ran straight down into the flats along Seafar Road and up to his father's house where an ambulance was summoned and from where he was taken to hospital.

Medical Evidence re Charge 2

On 9 May 2009 the complainer Daniel Collins was examined within the Accident and Emergency Department of Monklands District General Hospital. The examination revealed that the complainer had a one and a half centimetre incised wound to his right arm overlying the radial head elbow and a two and a half centimetre incised wound to the right arm on the posterior surface midway down the arm.

Both wounds were sutured and cleaned and two stitches were inserted to the first wound and three stitches were inserted to the second wound. He was thereafter released from hospital at that time. However, the complainer Daniel Collins re-attended hospital on Wednesday 13 May 2009 as he was feeling unwell. On examination at this time, the complainer was found to have subcutaneous emphysema in the upper right chest.

It transpired that a stab wound to the complainer's right shoulder had penetrated into the pleural cavity. A subsequent x-ray was also carried out that showed a very small pneumothorax (punctured lung) with a little surgical emphysema. The complainer was thereafter admitted for observation overnight. The following day, an x-ray was carried out that showed no increase in the pneumothorax. Due to this, the complainer was allowed home with instructions to avoid strenuous activity for two weeks and to return to hospital should there be any further problems.

The complainer will be left with permanent scarring from his injuries.

Charge 3

At approximately 1725 hours on Saturday, 9 May 2009 the complainer Ian Gorman (aged 35) was walking along Darroch Way, Cumbernauld in the company of his 6 year old daughter, Georgia. Darroch Way is a relatively short distance from Hume Road. As the complainer Ian Gorman walked along the roadway, he was approached by two males one of whom he knew as Martin Chalmers (he is the nephew of his ex-partner) and the other of whom was the accused Stuart Cossar. An argument developed between the complainer Ian Gorman and Martin Chalmers on the subject of the complainer's ex-partner. As the complainer Ian Gorman then began to walk away, the accused Stuart Cossar struck him on the back with what the complainer Gorman initially thought was a punch. He subsequently realised he had been stabbed. The complainer Ian Gorman grabbed hold of his daughter's hand and ran off in panic and as he looked back he could see both Martin Chalmers and the accused Stuart Cossar walking off along Darroch Way towards the Kildrum area of Cumbernauld.

Medical Evidence

At approximately 1830 hours on 9 May 2009 the complainer Ian Gorman was examined within the Accident and Emergency Department of Monklands District General Hospital. An initial examination revealed that he had a right-sided pneumothorax (collapsed lung) due to a penetrating stab injury to his chest. A chest drain was inserted and he was thereafter admitted to Ward 4 (surgical ward) for further treatment.

The complainer Ian Gorman made a full recovery and was discharged from hospital on Tuesday 12 May 2009.

He has been left with permanent scarring from the stab wound to his chest and resultant chest drain. This wound was potentially life-threatening in the absence of medical treatment."

Submissions for appellant

[5] The Advocate depute submitted that the sentencing judge had made a number of errors in respect of the sentences he had imposed. It was submitted that the three offences had not constituted a single incident, rather they demonstrated a course of criminal conduct over a period of a number of hours, within the course of one day. All of the offences had involved the use of a knife and had resulted in the victim being severely injured. The respondent had armed himself with a knife and had engaged the assistance of another armed individual in the commission of charge 1. The Advocate depute confirmed that, prior to the commission of the present offences, the identity of the respondent had been known to all three of the complainers, but stressed that each of the assaults had been unprovoked. Against that background the sentences imposed had an overall result of 4 years 6 months detention. Such a period of detention did not adequately address the gravity of the offences, the need for retribution, the risk posed by the respondent and the need to deter others from carrying out violent assaults of the nature the respondent had committed.

[6] The Advocate depute referred to the fact that the senior counsel who had appeared for the respondent before the sentencing judge had mentioned, during the course of his plea in mitigation, that when charges 1 and 2 had been committed the respondent had become aware of persons being present who he believed had been involved in an earlier assault upon him on 9 January 2009. That assault had resulted in the respondent sustaining injuries to his left eye and a number of facial wounds. The injuries to his left eye had been serious and had led to a loss of sight in that eye. The Advocate depute indicated that senior counsel had stated that the respondent believed that the complainers in charges 1 and 2 had both been involved in the assault upon him. It was said that the respondent harboured a grudge in relation to that assault. However counsel for the respondent had not asserted on behalf of the respondent that he had in some way been provoked into the commission of either charge 1 or charge 2. In such circumstances the appellant's position was that the earlier assault upon the respondent had no mitigatory effect in the present case.

[7] The Advocate depute referred to the terms of the Social Enquiry Report which had been before the sentencing judge. That report indicates that following his release from the sentence of 3 years detention the respondent had failed to cooperate with those supervising him under the Supervised Release Order. Furthermore it was clear from the Social Enquiry Report that the respondent posed a high risk of re-offending and a high risk to the community.

[8] Against that background it was submitted that the sentencing judge had erred in imposing concurrent sentences. This had the effect of treating the three charges as one incident and for all practical purposes making them subject to one sentence of 4 years 6 months detention. The sentencing judge had failed to bear in mind the overall effect of the sentences which he was imposing. It was submitted that a cumulo sentence covering all three charges would have been appropriate and that having regard to the circumstances of these offences, the respondent's previous convictions and the risk that he posed to the public an extended sentence ought to have been imposed.

Submissions for respondent

[9] Mr McCormack, the solicitor advocate appearing for the respondent, invited the court to take the view that sentences, with an overall effect, of 4 years 6 months, if lenient, were not unduly lenient within the test set down in H. M. Advocate v Bell 1995 SCCR 244. Furthermore, even if the sentences were unduly lenient, the court in exercise of its discretion in terms of section 118(4) of the 1995 Act, should not intervene and alter the sentences. The exercise of the court's discretion in refraining from interfering in such situations was illustrated by Bell and H. M. Advocate v Jamieson 1996 SCCR 836.

[10] The court was reminded that the respondent had been 19 years of age when the offences were committed. The sentences the respondent was currently serving had been backdated to 9 May 2009. Whilst he would be eligible for release in August 2011, he would have no right to be released until 10 May 2012. The sentences of 4 years 6 months would run to 8 November 2013. They would cover the period of years when the respondent was between 19 and 24.

[11] Mr McCormack provided further information about the injury the respondent had sustained to his left eye. Following the respondent being remanded in custody on 9 May 2009 he had required to undergo further medical treatment. His left eye had now been removed. Two further operative procedures were planned.

[12] Mr McCormack also drew the court's attention to the contents of a report on the respondent, dated 13 May 2010, by the Governor of HM Young Offenders Institution at Polmont, where the respondent had been detained until recently. That report indicated that the respondent had completed a Violence Prevention Programme and had attended an Alcohol Awareness Programme. A significant change in the respondent's behaviour had been observed. The respondent appeared to be coming to terms with what he had done. He had been trying to make amends for his previous conduct, by participating fully in the regime at Polmont and by mentoring other prisoners. In that capacity he had taken part in a pre-release knife crime course. He had also addressed groups of young people who had visited Polmont.

[13] The reference from the Governor at Polmont stated that the author's understanding was that the respondent had sustained a serious injury and lost an eye and "as a result of that he subsequently attacked his attackers". However, Mr McCormack clarified the situation. The position was that senior counsel for the respondent had informed the sentencing judge that when charges 1 and 2 were committed the respondent's perception had been that the complainers in both charges had been amongst those who had attacked him. That remained the respondent's perception. But it was not asserted on his behalf that the complainers in charge 1 or charge 2 had in fact attacked him. Indeed, it was in the end accepted that the respondent's perception did not have any rational basis.

Discussion

[14] We have reached the conclusion that this appeal should be granted and the sentences imposed quashed. We are quite satisfied that the sentencing judge erred in his approach to imposing sentence and that the concurrent sentences he imposed were unduly lenient. For offences of the serious nature to which the respondent pled guilty sentences which have an overall effect of 4 years 6 months in custody fall well below the range of sentences which a sentencing judge, applying his mind to all the relevant factors, could reasonably have considered appropriate.

[15] What the sentencing judge gives the impression of having done was of determining individual sentences for the individual charges, which could not be viewed as lying any higher than the middle of the range of sentences that would have been appropriate had each of those charges stood on their own. By then ordering that the sentences should run concurrently the result was an overall sentence which was quite inappropriate having regard to the whole circumstances of the case. It clearly falls to be regarded as unduly lenient within the test set down in Bell.

[16] Cases involving the carrying and use of knives come before the criminal courts all too frequently. The circumstances of each of these three offences provide a graphic illustration of what happens when knives are used. We agree with the Advocate depute that the three offences did not constitute a single incident and ought properly to be viewed as separate incidents in a course of conduct. However, the more important consideration is that each of the assaults was totally unprovoked and resulted in the victim being severely injured. Each complainer sustained a punctured lung. It also adds to the gravity of this case that the three assaults were all committed within the course of a few hours of each other. There was certainly nothing mitigatory about the circumstances in which these offences were committed.

[17] Furthermore, the offences were committed whilst the respondent was still serving the 3 year sentence imposed in Airdrie Sheriff Court. Whilst he had been released from custody in respect of that sentence, the sentence had not run its full course. He was subject to a Supervised Release Order and was not cooperating with those who were responsible for supervising him.

[18] We accept that the respondent sustained a serious injury which has led to the loss of his left eye. That injury amounts to a disability of some significance, which will be permanent. However neither that injury nor the circumstances in which it was sustained constitute any mitigation in the present case.

[19] Whilst we accept that the report from the Young Offenders Institution indicates that the respondent may be beginning to recognise the error of his ways, we are unable to ignore the fact that its author may not have been fully and accurately informed about the full circumstances of the present offences.

Disposal

[20] We have reached the conclusion that the appropriate way to proceed is to impose a cumulo sentence covering all three charges. Having regard to the circumstances of those offences, the respondent's record and the contents of the Social Enquiry Report we have reached the view that an extended sentence should be imposed. In deciding the length of the custodial part we have had regard to everything that Mr McCormack said on behalf of the respondent in relation to his personal circumstances. The extended sentence we impose is one with a custodial part of 6 years 9 months and an extension period of 2 years. The sentence will run from 9 May 2009. The custodial part has been discounted from one of 9 years, on account of the early pleas of guilty.