Judges refuse Crown appeal against ‘unduly lenient’ community-based disposal imposed on knife attacker

The Criminal Appeal Court has refused an appeal by prosecutors against the sentence imposed on a man who was given a community payback order after pleading guilty to theft and assault with a knife.

The Crown argued that the disposal was “unduly lenient”, but the judges refused the appeal after ruling that the sentence did not fall “outside the range of disposals” which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate.

The Lord Justice General, Lord Carloway, sitting with Lady Dorrian and Lord Bracadale, heard that at a preliminary hearing in March 2015 at the High Court at Glasgow the respondent Kenneth Graydon pled guilty to two charges arising from an incident in a convenience store in Prestwick.

The first charge libelled the theft of a quantity of groceries and tobacco and the second charge narrated an assault of an employee of the store, by struggling with her and repeatedly striking her on the body with a knife to her severe injury and permanent disfigurement.

At the preliminary hearing the advocate depute tendered a schedule of previous convictions, which disclosed a number of convictions for various offences including contraventions of the Misuse of Drugs Act 1971, fraud and theft.

In 2006 on indictment in the sheriff court the respondent was convicted of assault and robbery and sentenced to 23 months imprisonment.

It emerged from reports subsequently made available to the sentencing judge that the respondent had two additional convictions in England which had not been included in the schedule.

In 1999 he was convicted of assault occasioning actual bodily harm and was sentenced to nine months imprisonment; in 2002 he was convicted of aggravated burglary involving the use of a knife and was sentenced to 39 months imprisonment.

The court was also told that the respondent had a “significant history of mental illness”.

In April 2015 the sentencing judge made an assessment order in terms of section 52D of the Criminal Procedure (Scotland) Act 1995 and the following month he made a treatment order in terms of section 52M.

Thereafter, the case called on a number of occasions and was finally disposed of in October 2015 when the sentencing judge made a community payback order for a period of three years with requirements for supervision and mental health treatment.

However, the Crown challenged that disposal as being unduly lenient, averring that the sentencing judge erred in imposing a community-based disposal as he “failed to give due weight to the gravity of the offences and the respondent’s schedule of previous convictions”.

The advocate depute submitted that the sentence imposed “failed to satisfy the need for retribution and deterrence” and the judge had placed “undue weight” on the rehabilitation of the respondent.

It was argued that the offence in charge 2 was “a very serious one” and the victim impact statement showed that it had had a significant effect on the complainer.

The case had been properly prosecuted in the High Court and ought to have attracted a substantial custodial term, with an extended sentence being appropriate.

On behalf of the respondent it was submitted that the sentencing judge had taken a very careful approach and had taken into account all relevant circumstances, including the relevant previous convictions and the terms of the reports before him.

Counsel drew attention to his positive response to the first three months of the community payback order and said there had been a “very significant improvement” in the condition of the respondent as a result of the treatment order.

Delivering the opinion of the court, Lord Bracadale said: “On any view this was a very serious offence. It involved the respondent leaving his house armed with a knife and using it to commit a serious assault on a 60-year-old woman who was engaged in her job as a shop assistant. The respondent had a number of analogous and relevant previous convictions.

“The circumstances of this case would give rise to the strong likelihood of the imposition of a custodial sentence. The sentencing judge expressly started from that position. On the other hand, the respondent had a history of serious mental illness; under the treatment order there had been a significant improvement in the mental health of the respondent over a period of months.

“We have come to the conclusion that after careful consideration the sentencing judge put in place a community based disposal which represents a robust package of supervision and mental health treatment. This is designed to protect the public and provide a framework for rehabilitation of the respondent. It has been imposed against a background where the respondent has been either in custody or subject to a treatment order for a significant period of time prior to sentence.

“The sentencing judge has put in place a scheme for regular review. The report from the supervising officer in respect of the first review after three months is very positive. A striking feature of the operation of the community payback order in the first three months is the contrast between the deterioration of the condition of the respondent after he was discharged from hospital in October 2014 when he failed to take advantage of available supports and the positive response to the current highly structured support framework under the community payback order.

“It must also be borne in mind that should there be a breach of the order it will be open to the court in the course of breach proceedings to impose a custodial sentence. In the particular circumstances of this case we are not satisfied that the sentence is unduly lenient. For these reasons we refused the appeal.”