Lord Justice General

Lord Kingarth

Lord Emslie

[2010] HCJAC 53

Appeal No: XC682/09












Appellant: K Smith; Barony Law Practice, Edinburgh

Respondent: Bain, Q.C., A.D.; Crown Agent

20 April 2010

[1] The appellant was indicted for trial in Airdrie Sheriff Court on nine charges. On the second day of the trial, after evidence had been given on the first four of these charges, he pled guilty to charge (2) (as amended), charge (4) (as amended), charge (5) (as restricted), charge (7) (as restricted), charge (8) (as restricted) and charge (9). Pleas of not guilty to the remaining charges were accepted by the prosecutor. The terms of the guilty pleas were as follows:

"(2) on 20 March 2005 at North Square, Coatbridge, you KEVIN DAFFURN did, while acting with others, assault Francis Thomson, c/o Strathclyde Police, Coatbridge, and did present a piece of wood, a knife and imitation firearm at him, lunge at him, jump on his back, strike him on the head with a bottle all to his injury; you KEVIN DAFFURN did commit this offence while on bail, having been granted bail on 31 January 2005 at Airdrie Sheriff Court;

(4) on 20 March 2005 at Sunnyside Road, Coatbridge, you KEVIN DAFFURN, while acting with DAVID STEVEN CONDY, c/o Strathclyde Police, Coatbridge, did assault Craig Lynn, c/o Strathclyde Police, Coatbridge, repeatedly present an imitation firearm at him, demand his mobile phone and punch him on the body to his injury;

you KEVIN DAFFURN did commit this offence while on bail, having been granted bail on 31 January 2005 at Airdrie Sheriff Court;

(5) on 20 March 2005 at Sunnyside Road, Coatbridge, you KEVIN DAFFURN, while acting with DAVID STEVEN CONDY, c/o Strathclyde Police, Coatbridge, did assault Adam Copeland, c/o Strathclyde Police, Coatbridge, and did repeatedly punch and kick him on the head and body and repeatedly pursue him and strike him on the head and body with a broken bottle to his injury;

you KEVIN DAFFURN did commit this offence while on bail, having been granted bail on 31 January 2005 at Airdrie Sheriff Court;

(7) on 20 March 2005 at Coatbridge Police Office, Whittington Street, Coatbridge you KEVIN DAFFURN did assault Alex MacArthur, Constable, Strathclyde Police, and did punch him on the face to his injury and permanent disfigurement;

you KEVIN DAFFURN did commit this offence while on bail, having been granted bail on 31 January 2005 at Airdrie Sheriff Court;

(8) on 22 April 2005 at Leven Road, Coatbridge, you KEVIN DAFFURN did assault Derek Buchanan, c/o Strathclyde Police, Coatbridge, and did strike him on the face with your hand, and strike him on the head with a bottle to his injury and permanent disfigurement;

you KEVIN DAFFURN did commit this offence while on bail, having been granted bail on 31 January 2005 at Airdrie Sheriff Court, on 21 March 2005 at Airdrie Sheriff Court and on 18 April 2005 at Airdrie Sheriff Court; and

(9) you KEVIN DAFFURN being an accused person having been granted bail on 21 March 2005 at the Sheriff Court at Airdrie in relation to solemn proceedings, did on 18 July 2006 without reasonable excuse, fail to appear at a diet at the Sheriff Court at Airdrie of which you had been given due notice, and being a diet in respect of solemn proceedings:

CONTRARY to the Criminal Procedure (Scotland) Act 1995, Section 27(7)."

As at March and April 2005 the appellant was a few months short of his 18th birthday.

[2] The sheriff sentenced him to detention for the following periods: on charge (2) to three years and nine months (of which six months were in respect of the bail aggravation), on charge (4) to three years, on charge (5) to two years nine months (discounted from three years by reason that his plea was tendered prior to evidence being given on this charge), on charge (7) to nine months, on charge (8) to nine months (discounted from ten months by reason of the plea, two months being in respect of the bail aggravation) and on charge (9) to three months (discounted from four months by reason of the plea). The sentences on charges (2), (4), (5) and (7) were ordered to be served concurrently, those in each of charges (8) and (9) to be served consecutively. The total period of detention was accordingly four years and nine months.

[3] The appellant sought leave to appeal against sentence. The application was restricted to the sentences on charges (2) and (4). Leave was refused by the single judge. His reasons were expressed as follows:

"Notwithstanding the changes which the appellant has made to his lifestyle, these offences were extremely serious involving, as the sheriff observes, 'unprovoked, cowardly and nasty attacks with weapons upon respectable members of the public going about their lawful business'. In these circumstances only substantial custodial sentences were appropriate. The sheriff made the sentences complained of concurrent and that has resulted in a very modest penalty. There is no arguable ground of appeal."

The appellant sought leave to appeal from the High Court. Leave was refused, the Court stating:

"Notwithstanding the opinion provided in support of the application to the second sift, the appeal is unarguable for the reasons given by the first sift judge."

The opinion referred to noticed that, having regard to the fact that no appeal was taken against the sentence on charge (5), the most that could be achieved on appeal was a reduction of twelve months in the total period of detention.

[4] The appellant subsequently applied to the Scottish Criminal Cases Review Commission inviting it to refer his case on certain grounds to the High Court. The Commission rejected grounds 1 and 2 of the application but decided to refer it on ground 3 ("excessive sentence"). We shall return to its basis for doing so. First it is necessary to say something about the circumstances of the offences to which the appellant pled guilty and about his own circumstances.

[5] In her report prepared for the purposes of the appellant's original appeal the sheriff described the circumstances of charges (2), (4), (5) and (7) as follows:

"4. Regarding the background to charge 2, Mr Thomson, a respectable middle-aged family man, gave evidence that he awoke shortly before 3am on 20 March 2005 to the noise of about six youths trying to smash the back window of his car. Mr Thomson shouted at them and went outside. He saw the same group of youths at North Square, Coatbridge, breaking into a pensioner's car. He shouted at them that the police had been phoned and they moved off momentarily. Mr Thomson was standing in a corridor created by the houses on his right and the parked cars on his left.

5. Mr Thomson was then ambushed. The Appellant and another youth walked very briskly, straight towards Mr Thomson. The Appellant had what was accepted to be an imitation firearm, although in his evidence Mr Thomson clearly believed it to be a real gun. The other youth had a Stanley knife. Both were holding these weapons up, 'advertising them'. These two youths were backed up by two more youths, ready to join in. Meanwhile, a further two youths ran up behind Mr Thomson, one with a bottle, the other with a fence post, trapping Mr Thomson between his attackers.

6. The Appellant was shouting 'I'm going to shoot you'. The knifeman was saying 'you're getting it'. The Appellant held the gun at Mr Thomson's right eye. The youth with the bottle then struck Mr Thomson across the face with it, pushing his tooth through his lip, and the youth with the fence post repeatedly struck Mr Thomson over the back with it. The knifeman leaned forward to slash Mr Thomson.

7. Mr Thomson managed to grab the knifeman's arm and pulled the appellant over the knifeman. Both youths fell. Mr Thomson then managed to shake off the youth with the fence post from his back. That youth made off. Neighbours started to appear. The Appellant and two of the other youths made off in a passing taxi. The incident ended as quickly as it started.

8. Mr Thomson's lip was bleeding. He had a black eye and a bruised back. Physically he was very, very sore, and took a week off work. Mentally he was really shaken up. His confidence was shaken. He said that the incident 'never really leaves you'.

9. Mr Thomson's account of events was largely corroborated by Theresa McFaulds and Steven McFaulds, a mother and son who both gave evidence at the trial. Their experience of giving evidence was exacerbated by the fact that Mr McFaulds Senior, the respective husband and father of the witnesses, had died prior to trial. Mrs McFaulds and her son were both clearly still grieving, and indeed Steven McFaulds broke down in the witness box at one point, necessitating a short adjournment of the trial.

10. In relation to charge 4, Mr Lynn, a twenty seven year old Regional Development Manager, and Mr Copeland (the complainer in charge 5) were making their way home. It was less than half an hour after Mr Thomson had been assaulted, when the two were approached by the Appellant and another youth. The Appellant had what was accepted to be an imitation firearm in his hand, although Mr Lynn thought it was a real gun. The other youth was carrying a bottle.

11. The Appellant pointed the gun into Mr Lynn's left temple and demanded money. When told that Mr Lynn had no money the Appellant demanded his mobile phone. Mr Lynn refused. The other youth said 'he's going to shoot you. You'd better do as you're told'. Mr Lynn and Mr Copeland were shocked into silence. They moved away, followed by the Appellant and the other youth, who circled back round in front of them. The Appellant then produced the gun again and pointed it in Mr Lynn's temple. Mr Lynn reached up to pull the gun away from his head and a fight broke out.

12. Mr Lynn and Mr Copeland tried to wrestle the gun away from the Appellant. The other youth smashed the bottle on the pavement edge, to use the neck of the bottle as a weapon. Mr Lynn tried to wrestle the broken bottle from the youth's hand. The youth punched Mr Lynn in the chest, winding him, and Mr Lynn fell to the ground.

13. It was at this point in the proceedings that, after an adjournment, the Appellant pled to the Indictment, as noted above. A narrative was given in respect of the remaining charges, including the attack on Mr Copeland in charge 5 in which the Appellant wielded the bottle and used it to inflict Mr Copeland's injuries. I note in passing that no appeal is taken against the concurrent sentence of two years nine months imprisonment I imposed on charge 5. In my view the offences in charges 4 and 5 are of equal gravity. The only reason that a lesser sentence was imposed on charge 5 was to reflect a discount of three months in recognition of the fact that Mr Copeland, who I was told had suffered from nightmares for some time after the incident, was spared from giving evidence because of the Appellant's plea.

14. In relation to charge 7, which concluded the Appellant's offending on 20 March 2005, I was told that the Appellant punched Officer MacArthur on the face as the latter was leaving the Appellant's cell, resulting in a hospital visit for Officer MacArthur, fifteen stitches in his mouth and permanent disfigurement."

[6] In her report following the reference the sheriff noted that charge (8) was also of assault to permanent disfigurement, on this occasion involving the use of a bottle. Five stitches were inserted into the forehead of the victim. He was left with a visible 4cm scar. Charge (9) related to the appellant's initial failure to attend a trial diet set for July 2006 in respect of the earlier charges.

[7] At the time of sentencing there was before the sheriff a social enquiry report. That disclosed that in April 2005 (at about the time of the commission of the assaults with which these proceedings are concerned) the appellant was convicted of assault and sentenced to probation and community service, that in September 2007 he was sentenced to a thirty day custodial sentence for a road traffic offence and that on 14 December 2007 he was sentenced to twelve months probation with community service for another road traffic offence. At the time of sentencing for the present offences (3 October 2008) he had not committed any further offences. There were signs that his lifestyle had changed. He had complied with the two probation orders, had secured work in his father's business and had formed a long-term relationship of which a daughter had been born. The sheriff however took the view that the offences in question were so serious that only a custodial sentence was appropriate. In sentencing she carefully discriminated among the charges. She ordered that the sentences for the four offences which had been committed on the same day should run concurrently. The effect of her order in that respect was the same as if she had imposed a cumulo sentence of four years and nine months for these four offences (with their relative aggravations).

[8] In its statement of reasons the Commission expressed the view that "in relation to each charge on the indictment, the sentence imposed was excessive". It suggested that a non-custodial disposal might in all the circumstances (including the circumstances of the appellant's age at the time of the offending and his lack of violent offending between April 2005 and October 2008) have been appropriate and that in any event the custodial terms were of excessive length.

[9] Counsel for the appellant, in a careful and measured submission, did not suggest that a non-custodial disposal was appropriate at the time of the original sentencing or now. She emphasised the remarkable change in the appellant's lifestyle and submitted that the sheriff had, in selecting the lengths of sentence which she had, erred in balancing the gravity of the offences with the progress made by the appellant. She also relied on events since the appellant was sentenced. He had successfully completed several courses while in custody. Having been released on interim liberation in December 2009, he had secured work. His relationship continued. He had been in no further trouble with the police. Although no quarrel was taken with the sentences on charges (8) and (9) having each been made consecutive to the sentences on the other charges, a shorter total custodial disposal was urged.

[10] We had no real hesitation in refusing the appeal, as we did at the end of the hearing. While the appellant is to be commended for the improvement in his behaviour and is to be given credit for that, there is no doubt but that the gravity of his offending was such that only a substantial and immediate custodial sentence was appropriate. Charge (1) disclosed a particularly grave offence. It involved an innocent member of the public being ambushed and attacked by a gang of youths and then threatened with weapons, including an apparent handgun put by the appellant to the victim's head. He had no means of knowing that the gun was an imitation. Similar conduct to a like effect took place shortly thereafter (charge (4)), which also involved physical assault and the demanding of property. In charge (5) the appellant again used a weapon (a broken bottle) with which he inflicted injury. The evening's mayhem was completed by an assault upon a police officer to his permanent disfigurement. All these offences were aggravated by having been committed on bail. The effects on the victims are also important. Notwithstanding the appellant's youth at the time of these offences and the later improvement in his behaviour, we are wholly unsurprised that the single judge and the two other members of the High Court regarded the initial appeal as unarguable. It is rightly not suggested that the consecutive sentences imposed for the remaining charges were inappropriate.

[11] It is in every case for the Commission to form its own view as to whether there may have been a miscarriage of justice. We can only express our surprise at the view taken by it in this case.