HER MAJESTY'S ADVOCATE v. JOHN JAMES HEGARTY
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord Kirkwood Lord Osborne | Appeal No: C397/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in CROWN APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against JOHN JAMES HEGARTY Respondent: _______ |
Appellant: G. Hanretty, QC, AD; Crown Agent
Respondent: M. Scott, QC; Ross Harper, Glasgow
22 October 2002
Introduction
[1]This is an appeal by the Crown against a sentence of three years imprisonment imposed by Lord Dawson at Edinburgh High Court on 26 April 2002. The appellant pled guilty to the following charge:
"On 16 June 2001 at Victoria's Nightclub, 98 Sauchiehall Street, Glasgow you did assault David Jeffrey, care of Strathclyde Police, Stewart Street, Glasgow and repeatedly strike him on the neck with a glass tumbler to his severe injury, permanent impairment, permanent disfigurement and to the danger of his life".
The charge in its original form was one of attempted murder, but the Crown accepted the plea under deletion of the words "and did attempt to murder him".
The circumstances of the offence
[2]The respondent was aged 43 at the time of the offence. He was a first offender. He came from a good background but had been suffering emotional strain and depression. He had been married for 15 years and had a daughter to whom he was particularly close. For 22 years he had had a successful career as a financial adviser with an insurance company. He had been self educated in that occupation. In 1997 new regulations came into force which required that he should sit certain examinations in order to continue in it. He failed those examinations and became depressed as a result. Thereafter his marriage foundered. In September 2000, his wife left the family home and for some time was thought to be missing. She was located by the police but did not wish to have any contact with the respondent.
[3]About nine months later the incident occurred which led to the conviction. The respondent went into the nightclub which was the locus of the offence and there saw his wife for the first time since she had left him. She was in the company of the complainer. The respondent approached the complainer and his wife and accused the complainer of having a sexual relationship with her. According to counsel for the respondent, he specifically remembers his wife saying to him that the complainer was a better man than the respondent could ever be.
[4]The respondent struck the complainer with a glass on the left side of his neck. The glass shattered. The respondent thereafter struck the complainer repeatedly on the neck with the broken glass. The complainer's injuries were severe. He required surgical repair to the jugular vein and to his carotid artery. Some of the glass remained within the wound in his neck. He lost a substantial amount of blood and in consequence suffered a stroke.
[5]The complainer was in hospital for several weeks. He was ultimately discharged, after rehabilitation, in October 2001. The stroke has had far reaching consequences. The complainer has a permanent weakness in his left side which restricts the movements of his left arm and his left leg. He is permanently disabled. He occasionally requires to use a wheelchair. He requires help both indoors and outdoors. He still requires supervision when dressing. The complainer was aged 54. He was a civil engineer and had recently been made a partner in his firm. He will never be able to return to his previous work.
The report of the sentencing judge
[6]Having narrated the circumstances of the case, the sentencing judge says that he accepted that the offence was out of character, that the appellant was a first offender and that he pled guilty. He says that in all the circumstances he restricted what could have been a much longer sentence to one of three years imprisonment. He says:
"I did so because of the mitigating factors above described. I would accept immediately that such a sentence might be regarded by some as lenient. Whether it was unduly so I leave to your Lordships."
Submissions for the Crown
[7]The advocate depute said that the sentencing judge had failed adequately to take into account (1) the nature of the assault; (2) the fact that it was wholly unprovoked, and (3) its "catastrophic" consequences. He said that the Crown did not dispute the fact that the respondent had showed remorse. We understood him not to dispute the information given to us by counsel for the respondent regarding his personal circumstances.
Submissions for the respondent
[8]Counsel for the respondent submitted that sentence was properly mitigated in this case in light of the personal circumstances of the respondent. He has shown genuine remorse. He will find it difficult to live with the knowledge of what he did. The incident has caused distress to his daughter. The respondent is unlikely to re-offend. His actions were out of character. Counsel submitted that in these circumstances the sentencing judge was entitled to exercise leniency in the way that he did. Accordingly, the sentence was not unduly lenient, and therefore the test in HM Adv v Bell, (1995 SLT 350) was not satisfied.
Decision
[9]In our opinion the sentence imposed in this case was unduly lenient and ought to be increased. We shall therefore allow the appeal.
[10]While we bear in mind all of the mitigating factors that have been put before us, we think it important that the respondent had the option of not approaching his wife and the complainer in the nightclub and, even after he did approach them, had the option of turning away and ensuring that there was no further incident. Instead he carried out what is agreed by both sides to have been a vicious and unprovoked assault. When the glass broke, he persisted in the assault by striking the complainer with further repeated blows. We consider that the learned advocate depute's description of the complainer's injuries as catastrophic is a reasonable description in the circumstances of the case.
[11]We therefore consider that a sentence of six years imprisonment is appropriate. In assessing sentence at six years, we take fully into account all of the mitigating factors to which we have been referred.