Man with 34 previous convictions wins sentencing appeal after assaulting friend and ex-partner

Colin Marshall was sentenced in cumulo by the trial sheriff to 18 years’ imprisonment with a custodial part of 12 years and a 6-year extension period. He argued that this sentence was excessive in the context of the sentences he had received for previous convictions and the severity of the injuries inflicted. 

The appeal was heard by Lord Pentland and Lord Doherty. The appellant was represented by A Ogg, solicitor advocate, and the Crown by Prentice QC. 

Unconscious and bleeding 

The first and third charges of which the appellant was convicted were for assault and attempted murder of his friend, Calvin Whorlow. At the time of these offences, which in both charges included the repeated punching of Mr Whorlow as well as a knife wound to the neck in the third charge, the appellant was heavily intoxicated by alcohol. The second charge, the assault of his then-partner, also involved repeated punches to the head and body. 

The neck wounds inflicted on Mr Whorlow fortunately missed the major blood vessels in his neck but left him with a 2.5cm laceration that was closed with a steristrip. He was discovered by police officers lying unconscious and bleeding in the common close outside the appellant’s flat. Had he not been discovered at the time he was, the evidence suggested that he would likely have survived. 

It was noted that the appellant had 34 previous convictions from the period of 2002 to 2020, 10 of which were for assault offences. Along with these, he had been previously convicted of assault to injury and robbery as well as assault to injury and assault causing bodily harm. He had previously served custodial sentences with the longest being for 18 months. 

A Criminal Justice Social Work Report prepared on the appellant noted he was at high risk of reoffending. The trial judge concluded that an extended sentence was necessary, with the 18-year period influenced by the gravity of the attempted murder conviction and the appellant’s record and high risk of reoffending. 

It was submitted for the appellant that the sentence imposed was more appropriate to cases where the injury inflicted had resulted in danger to life, when in this case the actual injury sustained was relatively minor. Further, while the appellant had a lengthy record, none of his previous convictions had been from the High Court, and the sentence imposed was too great a leap from his previous longest sentence. 

Very high risk 

Delivering the opinion of the court, Lord Doherty began: “We emphasise that any attack on the neck with a knife requires to be viewed very seriously indeed. The attack here was wickedly reckless and the jury concluded that it was of a murderous nature. However, we accept that, fortunately, the laceration’s consequences appear to have been relatively minor.” 

He continued: “Although the appellant has a lengthy record the attempted murder offence is very much graver than any crime of which he has previously been convicted. We recognise too that the author of the CJSWR saw at least some indications that the appellant may have some insight into his offending and that he may be amenable to working towards reducing the very high risk which he currently represents.” 

Turning to the purpose of the extended sentence, he said: “Section 210A(2) of the Criminal Procedure (Scotland) Act 1995 makes clear that an extended sentence is a sentence of imprisonment which is the aggregate of its two parts. It is important to view the extended sentence as a whole, comprising a custodial part followed by the extension period.” 

Lord Doherty concluded: “We are in no doubt that the gravity of the offence of attempted murder, the appellant’s record, and the risk of further offending all point to the need for a substantial extended sentence. However, we are satisfied that when due account is taken of the other factors which we have outlined it is evident that the totality of the extended sentence which the trial judge imposed is excessive.” 

For these reasons, the appeal was allowed. The appellant’s original sentence was substituted for an extended sentence of 15 years’ imprisonment, with a custodial part of 10 years and an extension period of five years.