Appellant: Cherry, Q.C., A.D.; Crown Agent

Respondents (Clark): Alonzi; Douglas Wright, Kilmarnock

(Wilkinson): Nicol; Allan Kerr, Kilmarnock

19 January 2010

Introduction

[1] At the High Court at Glasgow on 5 May 2009 both respondents pled guilty to an indictment in the following terms:

"On 28 December 2008 at Old Street, Kilmarnock, you Jason William Clark and Rhys Matthew Wilkinson did assault John Dale, c/o Strathclyde Police, Kilmarnock, and did strike him and knock him to the ground, repeatedly punch and kick him on the head and body, strike him with a bottle all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and you did attempt to murder him".

[2] The pleas were tendered in accordance with the procedure provided for by section 76 of the Criminal Procedure (Scotland) Act 1995, the first and second respondents having given written intimation of their intention to plead guilty on 6 and 10 February 2009 respectively. At the time of sentencing the respondents were respectively 18 and 17 years of age. They were each sentenced to 40 months' detention, discounted from a starting point of 5 years to take account of the early pleas of guilty. The sentences were backdated to 5 May 2009, being the date on which they had been remanded in custody in respect of this matter. The appellant contends that these sentences were unduly lenient and has brought the present appeals under section 108(1)(a) and (2)(b)(i) of the Criminal Procedure (Scotland) Act 1995.

Circumstances of the offence

[3] The circumstances of the offence were the subject of an agreed narrative. At 1.30 am on the date of the offence, the complainer, who was 50 years old and unknown to the respondents, was walking home carrying a bottle of milk. He met the respondents, who engaged him in conversation, before knocking him to the ground and subjecting him to a prolonged and sustained attack. The complainer was punched and kicked repeatedly while he lay on the ground, with a number of kicks being directed at his head. One of the respondents threw the milk bottle at him. At one point they repositioned his body before running towards and kicking him. The respondents briefly left the unconscious complainer on two occasions, before returning and continuing the assault. One of them returned a third time for a final kick. They left the complainer unconscious in the middle of the carriageway at the locus. Although of poor quality, CCTV footage of the assault was viewed both by the sentencing judge and by this court. It demonstrates that the assault lasted just over 5 minutes.

[4] When detained by the police a short time later, the first respondent claimed that the complainer had pushed him and had fought with the second respondent. He admitted punching the complainer on the head and body, but denied having hit him while he was on the ground. The second respondent generally made no comment, but denied having kicked the complainer or having hit him with a bottle. There was no other explanation for the assault, although both respondents had been drinking heavily.

[5] The complainer suffered extensive facial fractures, requiring reconstructive surgery. On his admission to hospital he had blood on his brain with a blood clot. He required blood transfusions and intravenous fluids and was placed on a ventilator. A bolt was inserted into his head in an attempt to alleviate the blood clot, which in the event resolved spontaneously. But for the medical intervention, the complainer would have died. He is now blind in his left eye and only partially sighted in his right. He has suffered neurological damage and his cognitive functions have been seriously affected. He has difficulties in performing simple tasks such as washing and dressing himself and making purchases. The prognosis is that he will require a regime of 24-hour care for the remainder of his life.

The appellant's submissions

[6] The Advocate depute submitted that the sentencing judge had erred by giving excessive weight to the personal circumstances of the respondents, namely their youth, their lack of previous convictions and their good background. He had failed to explain why, in the circumstances of the present case, these features were truly mitigatory. The starting point of 5 years' detention did not reflect the seriousness of an offence involving murderous intent, the prolonged and repeated nature of the attack or the extent of the injuries suffered by the complainer (cf Munson v HM Advocate 1997 GWD 3 - 106; Esson v HM Advocate 1998 GWD 27 - 1373; Wilson v HM Advocate 2003 GWD 3 - 68). In particular, in his report, the sentencing judge had not referred to the full extent of the complainer's injuries. It was appropriate to impose a more severe sentence on appeal where that was warranted to mark the gravity of the particular offence (HM Advocate v O'Donnell 1995 SCCR 745, per Lord Justice Clerk Ross at page 748; cf HM Advocate v Bell 1995 SCCR 244). The Advocate depute also submitted that the level of discount applied to the respondents' sentences was unmerited, given the level of violence involved. There was no indication of significant remorse on their part and any utilitarian benefit in the plea was tempered by the fact that, standing the evidence, it was arguable whether they had any choice other than to plead guilty (cf Du Plooy v HM Advocate 2005 1 JC 1 per Lord Justice General Cullen at paras. [16] - [17]). Reference was also made to Spence v HM Advocate 2007 SCCR 592.

Submissions for the first respondent

[7] Mr Alonzi submitted that the sentence imposed upon the first respondent was not unduly lenient. It was plain both from the terms of the agreed narrative and from his report that the sentencing judge had been aware of the seriousness of the offence. He had also been fully addressed in mitigation. The respondent was 17 years old at the time of the offence, had no previous convictions and came from a stable and supportive family background which would assist his rehabilitation and reduce the risk of re-offending. He left school having obtained 6 Standard Grades and had been employed until he was prevented from working through injury. The offence was very much out of character. Having seen the CCTV footage only following his plea of guilty he had shown significant remorse, admitting that the assault was "brutal" and that he deserved any sentence imposed on him. He had, on his own initiative, drafted a letter to the sentencing judge making clear his remorse and indicating that he intended to use his time in custody productively. He was now studying towards two Highers and pursuing a national qualification in plumbing. All of these factors had to be weighed against the seriousness of the offence, which was not denied. Given the very early stage at which the formal written intimation of an intention to plead guilty was given, the discount of one third was not excessive. No explanation could be given as to why he had behaved as he had.

Submissions for the second respondent

[8] Mr Nicol also submitted that a discount of one third was not excessive. The second respondent had initially been unable to recall any details of the incident, due to the amount of alcohol which he had consumed, but intimated his intention to plead guilty as soon as the evidence against him became known. He had also been affected by viewing the CCTV footage. While the social enquiry report suggested that he "did not display much in the way of remorse", he was still coming to terms with what he had done at that stage: genuine remorse required a period of reflection, and that process had now commenced. The respondent had been 16 years old at the time of the offence and had no previous convictions. Prior to the offence he had obtained eight Standard Grades and two Highers, and was attending college. The catalyst for the offence appeared to be the amount of alcohol which he had drunk. In the circumstances, the starting point of five years' detention was not outwith the range of appropriate disposals (cf HM Advocate v Mullen 2007 SCCR 330; HM Advocate v Simpson 2009 SCCR 554). While the sentence imposed might be considered lenient, it could not be considered unduly so, particularly in the context of a young first offender.

Discussion

[9] The circumstances of the present case are a stark example of what may happen when excessive alcohol is consumed. Neither of the respondents has a prior conviction and both come from stable and supportive families. Yet on the evening of 28 December 2008 they perpetrated a most vicious assault on a defenceless victim with very grave consequences for the rest of his life. Although in some contexts five minutes may be a short period, in the context of repeated kicking of a prone victim with the blows being directed generally towards his head, it is a long time - as the experience of watching it unfold on CCTV confirmed. The number of kicks could hardly be counted. The viciousness was emphasised by the number of times on which the respondents, having apparently finished with their victim, returned to inflict further damage upon him.

[10] The state of mind of each of the respondents in committing this crime was at least that of a wicked recklessness as to whether their victim lived or died - as their pleas to attempted murder acknowledge. That they were disinhibited by the quantity of alcohol which each of them had voluntarily consumed is, of course, no excuse. The court must mark the quality of the conduct appropriately. Attempted murder is a very grave offence. It is graver when the conduct results, as it did in this case, in catastrophic consequences for the victim.

[11] The sentencing judge took into account, among other factors, the fact that each of the respondents came from a stable family. That is a relevant consideration but it may be two-edged. An offender who has had such a benefit may be regarded as more reprehensible than one who has suffered an abused or deprived childhood. While the absence of prior convictions is also relevant, it is of limited significance with respect to offenders so young as the respondents. In mitigation the most important factor is their youth - at the time of the offence the first respondent was aged about 17 years and 8 months and the second respondent about 16 years and 10 months. Their lack of maturity is a relevant consideration.

[12] In the case of a mature adult convicted of this crime in like circumstances we would have expected a sentence, prior to any discount for an early plea, of about 9 years' imprisonment. In the case of youths such as the respondents we would have expected, again prior to any such discount, a sentence of about 71/2 years' detention.

[13] The sentencing judge sentenced each of the respondents to detention of 3 years and 4 months, having discounted for the guilty plea and related matters from a term of 5 years. We regard these disposals as unduly lenient. Like the sentencing judge we see no reason to distinguish between the respondents but we consider it necessary to mark the gravity of this particular offence (HM Advocate v O'Donnell, per Lord Justice Clerk Ross at page 748). To do so it is necessary in our view to start with a term of about 71/2 years' detention.

[14] The sentencing judge allowed a discount of one-third from the sentence he would otherwise have imposed. On one view that might be regarded as over-generous since, although each respondent promptly intimated an intention to plead guilty, neither showed any real remorse until a relatively late stage. However, account has to be taken of their youth, when a concentration on the consequences for oneself rather than for others may be an aspect of immaturity. We see no reason in these circumstances to differ from the sentencing judge's discounting fraction.

[15] In the whole circumstances we shall accordingly in each case allow the Crown's appeal, quash the sentence of 3 years and 4 months' detention and substitute a period of 5 years' detention to run from the same date.