APPEAL AGAINST SENTENCE BY PATRICK OHARA AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 107
HCA/2016/000198/XC
Lord Brodie
Lord Turnbull
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL AGAINST SENTENCE
by
PATRICK OHARA
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Paterson Sol. Advocate; Paterson Bell
Respondent: Hughes AD; Crown Agent
11 October 2016
[1] This is the appeal of Patrick Ohara, whose date of birth is 31 December 1996. On 8 March 2016, the appellant was convicted after trial in respect of three charges on indictment. He admitted the first two charges during the course of that trial. The first charge was one of contravention of section 38(1) of the Criminal Justice & Licensing (Scotland) Act 2010, the second charge was a charge of common law assault and the third charge was contravention of section 3 of the Sexual Offences (Scotland) Act 2009 which was libelled as an assault with intent to rape.
[2] On 31 March 2016, having had the opportunity of considering a Criminal Justice Social Work Report, the sheriff imposed a single extended sentence in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. That sentence had a custodial term, being a term of detention of 4 years with a 4 year extension period, making it a sentence of 8 years.
[3] The sheriff has provided two reports. From her report of 14 March 2016, one sees that the three charges arose from an incident which occurred on 10 October 2014. The appellant had been drinking lager and, according to one of the witnesses at trial, smoking cannabis. He and some eight male companions entered the house of the complainer uninvited about 8pm in the evening announcing that they were “taking over” and going “to party here tonight.” The complainer was aged 47, he was a man of slight stature and build. He was described by the sheriff as vulnerable. He asked the appellant and his companions to leave. The appellant, who was clearly the leader of the group, refused. He punched the complainer to the head and body between 12 and 20 times despite being asked to stop by other members of the group. The appellant also attempted to damage a cooker. He kicked doors and having asked others in the group to leave, the appellant then engaged in the conduct which is more particularly described in charge 3 which, includes the libel of assault to injury with intent to rape.
[4] Leave to appeal the sheriff’s sentence has been granted, limited to the contention that the length of the custodial term and the extension periods were excessive. A number of factors were relied on in support of that contention. It was said, although the sheriff was doubtful of this, that the appellant had been in employment and had family support. It was said that there was no established pattern of offending as an adult and that there had been no further offending in the period of a year and half between the date of the offences and the date of sentencing. However, what Mr Paterson who appeared for the appellant concentrated on, was that the appellant being only 17 years of age at the date of the offences and only 19 years at the date of sentencing, thus to impose a custodial sentence of the length that had been imposed here, was entirely inappropriate.
[5] In considering that submission, we took the view that what was involved in this indictment were three serious offences. We note from the Criminal Justice Social Work Report that the appellant is described as someone with no victim empathy and that is notwithstanding the fact that he is also described as a highly intelligent young man. The assessment of risk of sexual offending is high. However, as was pointed out in the course of Mr Paterson’s submissions, that apparently was by reference to the application of the Risk Matrix 2000, which is a test described in the Criminal Justice Social Work Report as appropriate for those over the age of 18. It is true that the expression “a very dangerous young man” is found in the Criminal Justice Social Work Report but the context in which that appears would suggest that it is the reporter’s view based on the nature of the offence rather than anything else, and has to be read in the light of the other observation by the reporter that the appellant had not offended between 10 October 2014 and the date when he appeared for sentencing.
[6] While we cannot disagree with the sheriff’s description of the offending here as a “prolonged sadistic attack with elements of humiliation, torture and degradation” and while we consider that the sheriff was right to draw attention to the appellant’s lack of remorse and his denial of any responsibility in respect of charge 3, because these are matters which bear on risk, we do consider that the sheriff can be said to have erred in two respects. The first is that we do not see that she has given due weight to the fact that the appellant had not offended between 10 October 2014 and the date of sentencing when she was having regard to the question of risk. The other matter in which we see the sheriff as having fallen into error is the lack of weight which she gave to the appellant’s youth. It is true that the sheriff mentions the appellant’s youth in the context of her consideration as to whether it was appropriate to remit this case for sentence to the High Court. But other than in that part of her report, we do not see weight being given to the fact that at the time of offending, if one draws one’s definition from the United Nations Convention on the Rights of the Child, the appellant having not yet attained the age of 18, was to be regarded as a child.
[7] As has been noted in a number of Scottish cases including Kane v HM Advocate 2003 SCCR 749, Ashraf and Others v HM Advocate 2010 HCJA 87, Diven and McGinley v HM Advocate 2012 HCJAC 81 and Smart v HM Advocate 2016 HCJAC 73, section 207(1) of the Criminal Procedure (Scotland) Act 1995 confers particular protection on persons less than 21 when it comes to sentencing. They cannot be imprisoned, albeit there are cases where the gravity of the offence is such that they may be dealt with by an order for their detention. Here it is accepted that a custodial disposal was the only appropriate sentence and that an extended sentence should be imposed. However, we consider that in fixing the periods of the custodial term and the extension period, it is necessary to keep in mind, as it was recognised in Hibbard v HM Advocate 2011 JC 149, the principles stated in the United Nations Convention to which we have made reference. We see as particularly important what appears in Article 3.1 which is that, in all court actions concerning children, the best interests of the child shall be a primary consideration, and the recognition in Article 40 that it is the right of every child who has been convicted of an offence be treated in a manner consistent with the promotion of the child’s sense of dignity and worth and in a manner which takes into account his age and the desirability of his reintegration into society. The reasons for treating a young offender differently from an adult have been recently explained by this court in McCormack v HM Advocate 2016 HCJAC 50 under reference to what was said by the United Kingdom Supreme Court in R (Smith) v The Secretary of State for the Home Department 2006 1 AC 159 at paragraph 23 and by the United States Supreme Court in Roper v Simmons 543 US 551 (2005).
[8] In McCormack it was affirmed that in selecting the sentence for a child the court must have regard to the best interests of that child’s as the primary consideration. A factor in that will be the desirability of the child’s reintegration into society. That reflects what appears in the United Nations Convention. Having regard to that but also the admittedly serious nature of the offences of which the appellant was found guilty, the terms of the Criminal Justice Social Work Report and the fact that the appellant had not offended subsequent to 10- October 2014, we shall quash the sentence imposed by the sheriff. In substitution we shall impose the following sentences: in respect of charge 1, a period of detention of 12 months; in respect of charge 2, a period of detention of 2 years and in respect of charge 3 an extended sentence with a custodial term of 2 years; and an extension period of a further 2 years. These sentences will be ordered to be served concurrently. The date from which the sentences shall run will be the same date as selected by the sheriff.