Two-year prison sentence for assault to severe injury was ‘not excessive, appeal judges rule

The Appeal Court of the High Court of Justiciary rejected the appellant’s argument that the sentencing judge should have imposed a community-based sentence or a shorter custodial term.

Excessive sentence

Lord Menzies and Lord Brodie heard that the appellant Grant Gay appeared for trial at the High Court in Edinburgh in March 2017 on a charge which initially, until the jury deleted it, included an element of culpable homicide.

The jury returned a verdict of guilty of assault to severe injury by punching and the temporary judge imposed a sentence of two years’ imprisonment.

However, he appealed against his sentence, arguing that this should not have been a custodial sentence at all and that “justice would be served” by a “robust” Community Payback Order.

Alternatively, it was argued that if the court was not persuaded of that view, the custodial sentence of two years was “excessive” and the appeal judges should substitute a “shorter period”.

Genuine remorse

The court observed that were factors the counted in favour of the appellant and factors that counted against him.

In particular, in favour of the appellant, there was a doctor’s letter which indicated that he suffered from “depression, low mood and anxiety”.

He was described as a “hard worker all his life” and a “team player”, with several letters of reference provided to the court.

He had been involved in the local community and particularly as a coach and running an amateur football club.

It was reported that he had shown “genuine remorse and distress”.

The Criminal Justice Social Work Report was described as “neutral” and the appellant had the benefit of section 204 of the Criminal Procedure (Scotland) Act 1995 in that he had never served a custodial sentence before.

The court was also told that he was in a stable relationship with his wife, who was suffering from ill health, and the judges were shown a letter from the NHS indicating that a provisional date for surgery had been identified and that she would require some weeks of care after being discharged from hospital.

Previous convictions

There were however, factors which counted against the appellant.

He had previous convictions for crimes of violence, including one conviction for assault to injury and two convictions for assault of police officers.

Moreover, the circumstances surrounding this offence were regarded by the sentencing judge as of importance and indeed, his counsel indicated that it was accepted that this was a “very serious matter”.

The trial judge also reported that the actions of the appellant both prior to the assault and after its perpetration “aggravated matters”.

He said: “Prior to the assault, the appellant was at home and could have simply stayed there. However, he chose to return to the public house clearly on the evidence for the purpose of confronting the deceased. He was clearly annoyed at some actual or perhaps only perceived slight. His wife described him as being ‘pissed off’ by the deceased’s gesture which she told him about. After the assault, knowing that the deceased was in considerable difficulty, the appellant did nothing to assist him. He simply left the scene, leaving his victim to his fate.”

No error of law

Refusing the appeal, the appeal judges said there was “no error of law” in the trial judge’s approach.

Delivering the opinion of the court, Lord Menzies said: “The sentencing judge went on to indicate that he chose a sentence of two years imprisonment to reflect the reduction in the charge made by the jury and had the appellant been convicted of culpable homicide, he would have imposed a longer sentence of imprisonment.

“There is no error of law that we can find in the sentencing judge’s reasoning and we are unable in all of the circumstances of this case to categorise the sentence of two years imprisonment as being excessive and for these reasons, this appeal must be refused.”