Teenage first offender wins appeal against custodial sentence for serious assault

Harry Finnegan, who was 19 at the time of the offence, was sentenced to 18 months’ detention after pleading guilty to punching a man to the ground and repeatedly punching and kicking him on the head and body.

But the Criminal Appeal Court allowed his appeal against sentence after ruling that while the kicking of a person on the ground about the head was a “very serious matter”, the sheriff failed to take into account the age of the accused and the fact that he was a first offender.

Lord Menzies and Lord Drummond Young heard that the appellant appeared at Dundee Sheriff Court in May 2016 and tendered a plea of guilty under certain amendments to a charge on an indictment that at a public house in Dundee in April 2015 he assaulted Kevin Simpson.

As the sheriff has noted in his report to the appeal court, the kicking was a “sustained assault on a man in a vulnerable position” and the licensee had to “physically restrain” the appellant.

The sheriff added: “I have known to inflict brain damage and I have known it to kill. On this occasion the complainer did not suffer such catastrophic consequences but he did suffer injuries which are admitted to have been severe and he now has a scar on his face and some psychological consequences.”

Allowing the appeal, the judges quashed the custodial sentence and instead imposed Community Payback Order with an unpaid wok requirement of 200 hours, along with a Compensation Order of £800 to be paid to the complainer.

Delivering the opinion of the court, Lord Menzies said: “We accept all of those observations made by the sheriff and agree with them. However, we also take account of the particular circumstances which gave rise to this serious incident, in particular that the appellant who was aged 19 at the time of the offence had that day attended the funeral of a friend who had committed suicide and he was as a result upset and drank too much alcohol following upon the funeral. We take into account that he was of previous good character. He is a first offender and he had a good work record.

“We take account of his age and we also take account of the statutory provisions which Parliament has enacted particularly at section 207(3) of the Criminal Procedure (Scotland) Act 1995 which provide ‘the court shall not impose detention on an offender under 21 years of age unless it is of the opinion that no other method of dealing with him is appropriate and the court shall state its reasons for that opinion’.

“Unusually the very experienced sheriff in this case has not addressed expressly the provisions of section 207(3) of the 1995 Act and there is no note of the court’s reasons in the court minutes, as is required by the statutory provision nor surprisingly are reasons given in the sheriff’s report to this court. We take account of that omission.

“We also take account of the fact that the criminal justice social work report assesses the appellant as being at low risk of offending and we take account of the fact that he appears to have supportive employers and we have been provided with a letter of reference in that regard, and a family which is supportive of him; and we are told members of his family are in court to support him today.

“In all these circumstances, whilst reiterating that assault to severe injury by kicking repeatedly to the head and body is a very serious offence, we have reached the conclusion that the sheriff erred in concluding that only a custodial sentence was appropriate in the particular circumstances of this case. We are accordingly persuaded that the sentence imposed by the sheriff must be quashed and provided that the appellant indicates that he is prepared to comply with a non-custodial order we will impose a Community Payback Order with various requirements.

“We shall also impose a supervision requirement of six months duration and finally we shall impose a Compensation Order requiring the appellant to pay compensation to the complainer Kevin Simpson that by making payments to the Sheriff Clerk at Dundee Sheriff Court totalling £800.”