Teenager convicted of assault wins appeal against custodial sentence

The High Court of Justiciary Appeal Court imposed a community payback order (CPO) after ruling that the sheriff erred in his approach to sentencing and that the original disposal was “excessive”.

‘Serious offence’

Lord Menzies and Lord Turnbull heard that in September 2018 the appellant Joseph Llewellyn, 18, was sentenced to a year-and-a-half in detention as a consequence of being convicted of throwing a brick at another youth, chasing him and threatening him with violence while carrying a knife.

The offence, which was committed along with his older brother, took place in September 2016 - a full two years before the sentence was imposed.

At the time of the commission of the offence the appellant was 16 years and a first offender, but after conviction the sheriff was informed that the appellant had been convicted in 2017 of assault to injury and a statutory breach of the peace, as a result of which he was made subject to a CPO with a supervision requirement of 15 months.

Before passing sentence in the present case the sheriff obtained a criminal justice social work report and a report from a clinical psychologist.

Having considered the terms of those reports - which noted the appellant’s history of ADHD and an attempted suicide which was thought to have occurred in the context of his poor social circumstances and strained family relationships, but also identified positive recent changes in the appellant’s circumstances and noted that he had engaged well during his period of supervision and had completed offence-focused work - the sheriff concluded that a custodial sentence was the only appropriate disposal.

‘Sheriff erred’

However, it was argued that the sheriff had “erred” in his approach to sentencing.

On behalf of the appellant it was submitted that it was “neither necessary nor appropriate” to impose a sentence of detention, there being “a range of other methods of sentencing available”.

Particular emphasis was placed on the appellant’s age, his lack of previous convictions and the reduced nature of the offence of which the appellant was convicted.

But in his report to this court the sheriff explained that the appellant had been convicted of what he considered to be a “serious offence”. 

He took the view that even taking account of the appellant’s age and lack of previous offending at the time balancing the issues of public safety, deterrence and what he took to be the “generally unsupportive theme” coming from the two reports available to him that no disposal other than a period of detention was appropriate.

Having considered all these matters the judges agreed with the submission that the sheriff erred in his approach to sentencing.

‘Excessive sentence’

Delivering the opinion of the court, Lord Turnbull said: “We do not consider that the sheriff gave sufficient weight to the appellant’s age and circumstances at the time of the commission of the offence or to the lengthy passage of time which had elapsed prior to him being sentenced.

“In relation to his circumstances there is one matter in particular which strikes us as being of importance and which is not referred to in the sheriff’s report. As we have already noted, the report from the clinical psychologist disclosed that the appellant was suffering from significant mental health difficulties in the period of time around the commission of the offence. 

“The offence was committed on 17 September 2016, two days later he required to be seen as an emergency by the local psychiatric team and was then admitted for a lengthy period of in-care treatment as an acute patient.

“Furthermore the sentencing aim of deterrence which weighed with the sheriff is generally less relevant than that of rehabilitation in dealing with someone who has offended at the age of 16.”

While the sheriff explained in his report that he was, of course, aware of the cases of Kane v HM Advocate and HM Advocate v Gary Smith, he expressed the view that these cases were not authority for the proposition that young offenders could go scot-free or avoid a punitive element to sentencing. 

He considered that the recent decision of the appeal court in IG v HM Advocate [2018] HCJAC 63 supported his understanding.

‘No-one gets off scot-free’

But the court said it had a little difficulty in understanding what the sheriff was intending to communicate in this passage. 

Lord Turnbull continued: “Community payback orders and other non-custodial disposals constitute sentences. No one who is sentenced by the court goes scot-free. 

“There are also a range of punitive options available to the court apart from custody. Some can be imposed either in addition to or instead of a community payback order. The most obvious is the court’s ability to include an order that the offender should carry out a period of unpaid work in the community.

“The decision of the court in the case of IG was a decision by a bench constituted identically to the present bench and we therefore feel able to state with confidence that nothing which was said on that occasion was intended to dilute or distract from the guidance earlier given in cases such as Kane v HM Advocate.

“In all of these circumstances, we are satisfied that the sentence imposed is excessive.”

The judges quashed the sentence imposed and in its place the court imposed a community payback order with a supervision requirement to last for two years, and a requirement to undertake a period of 200 hours unpaid work in the community within 12 months.