MICHAEL KANE v. HER MAJESTY'S ADVOCATE
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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| Lord Justice Clerk Lord Osborne | XC554/03 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in NOTE OF APPEAL AGAINST SENTENCE by MICHAEL KANE Appellant against HER MAJESTY'S ADVOCATE Respondent _____________ |
For Appellant: Miss MacKenzie; Drummond Miller, WS
For Crown: Beardmore; Crown Agent
16 October 2003
The conviction and sentence
[1]On 24 February 2003 at Dundee Sheriff Court the appellant pled guilty to the following charge:
"on 5 May 2002 at Lauderdale Avenue, Dundee, you ALEXANDER THOMAS HUGHES and MICHAEL JAMES KANE did assault Scott Heggie, born 7 December 1987, care of Tayside Police, Dundee, present a knife at him and rob him of approximately £50 of money".
The case was continued for reports. On 20 March 2003, Sheriff Richard Davidson, having heard the appellant's agent in mitigation, continued the case for a further report directed to the question of a supervised release order. On 3 April 2003, the sheriff sentenced the appellant to detention in a young offender's institution for three years with a supervised release order for a further year.
Circumstances of the offence
[2]The complainer was a 14 year old school boy who had a paper round. On the date of the incident he was collecting money from his customers. He was with two friends of a similar age. The appellant and his co-accused approached them at the locus and asked for a cigarette, which one of the boys handed over. The appellant and his co-accused went away but returned soon after. The appellant then produced a knife similar to a Stanley knife, pointed it at the complainer, held it close to the complainer's stomach and said "Give me all your money." The complainer handed over about £44.
The appellant's record
[3]The appellant had been convicted in Dundee District Court on 6 March 2002 on a charge of breach of the peace, for which he was fined £40, and a charge of vandalism arising from the same incident, for which he was fined £60 and ordered to pay compensation of £150.
The plea in mitigation
[4]In his plea to the sheriff, the agent for the appellant relied on the fact that the appellant had not inflicted any physical injury on the complainer. The appellant himself was only 16 years old at the date of the offence. He had only a minor record. By his plea he had spared the complainer the ordeal of giving evidence. He was remorseful. The appellant came from a broken home. His father had allowed him to drink alcohol at the age of 13 and had encouraged him to drink regularly thereafter. By the time he was 15, the appellant had become, like his father, an alcoholic. He regularly drank spirits and cider with his father. He had committed the offence because he needed money for drink. Since then he had sought help for his alcohol problem. He had co-operated in treatment and was now recovering.
Social enquiry report
[5]A subsequent social enquiry report suggested that both of the appellant's parents had a drink problem and that at the time of the offence the appellant was drinking about a bottle of vodka a day and taking drugs. He had failed to attend school regularly and had had limited experience of work. He had failed to take up a training post, had failed to sustain another and had now been offered a third. The report suggested that the appellant had a high risk of re-offending and might pose a risk of causing physical harm to the public.
The sheriff's reasoning
[6]The sheriff took a serious view of this case. At pages 4, 5 and 7 of his report, he refers to the "enormity of the offence." On 20 March he had formed the view that there was no possible alternative to a custodial disposal (p. 4). He says
"It was my opinion that the only real issue at this stage was whether I could deal with this case within the powers available to me or whether I should be remitting the appellant to your Lordships' court for sentence."
He says that the mitigating features urged on behalf of the appellant
"made it possible to take what might be considered to be a lenient approach in restricting the penalty to one of 3 years detention followed by a one year's supervised release order."
After discussing the possibility of the appellant's being given help with his alcohol problem and learning some social skills and standards during his detention, he says
"I have to have regard however to the interests of the decent people in society who are entitled to expect that, if someone robs another person at knife point, then that person will be imprisoned for a substantial period both as a punishment and as a deterrent to others. To do otherwise would be to send out a weak and unconscionable message to society."
[7]These references will, we hope, give a fair indication of the sheriff's approach. For the purposes of this appeal, however, the crucial remark that the sheriff makes is, in our view, the following:
"Your Lordships' court has repeatedly made it clear that there is only one possible sentence for robbery at knife point and that is a lengthy custodial one" (p. 6).
We shall return to this remark.
The grounds of appeal
[8]The grounds of appeal rehearse the considerations urged in mitigation before the sheriff.
Decision
[9]In our view, the sentence was excessive and should be quashed. Without minimising the seriousness of this offence, which must have caused great distress to the complainer and his family, and recognising that it involved the presentation of a knife, we nevertheless consider that the sheriff's approach to sentencing was extreme. It surprises us that an assault - serious though it was - that involved no physical injury to the complainer and was committed by a young offender with a minor record who had not previously been in custody, should have attracted the maximum sentence that the sheriff could impose. We are surprised, too, that the sheriff was "in two minds" as to whether to remit the appellant to this court for sentence.
[10]At the hearing on 20 March, the sheriff decided that there was "no possible alternative" to custody. That view seems to have been based on the sheriff's understanding (supra) that this court has repeatedly made it clear that there is "only one possible sentence" for robbery at knife point, namely a lengthy custodial sentence. We know of no occasion on which this court has said any such thing. The sheriff cites no authority for this alleged principle, which in our opinion is erroneous. The result of the view that the sheriff took is that he failed properly to consider the other sentencing options that were available to him.
[11]The sheriff thought that considerations of retribution and deterrence were decisive. These are material considerations; but there is more to sentencing than sending messages to society, particularly in the case of a young offender. The court has to consider the personal circumstances of such an offender; his home background; the extent to which he may not be solely responsible for his behavioural problems; and the opportunities that a non-custodial sentence may give for rehabilitation before he becomes trapped in the cycle of crime.
[12]The appellant was not much older than the complainer. He pled guilty. His only previous conviction was in the district court. His previous record is not the worst that we have seen in a youth of his age. He has a disturbed family background. He suffers from alcoholism, a condition for which, it appears, his father is largely responsible. He has the opportunity to receive treatment for his problems and to reform his life. There are encouraging reports on his motivation to give up drinking. A community-based disposal, in our view, offers reasonable grounds for hope that, under suitable guidance, he will overcome his drink problem, acquire a sense of responsibility and get a steady job.
[13]The appropriate disposal, in our view, is to make a probation order for a period of two years with a condition that the appellant should carry out 100 hours of community service.