Young offenders cannot get off ‘scot-free’, appeal judges rule in refusing appeals against custodial sentences

The appellants claimed that the sheriff failed to properly take into account their age when sentencing the pair to detention, but the Appeal Court of the High Court of Justiciary ruled that while the age of a young offender was an “important factor”, that did not mean they could get off “scot-free”.

Lord Menzies and Lord Turnbull heard that the appellants “LR” and “DM” appeared at a trial diet at Dumbarton Sheriff Court in February 2018 on an indictment which narrated certain events which were alleged to have occurred on a train journey between Westerton and Bearsden on the evening of 21 December 2015.

Each of the appellants had appeared on petition in May 2017 and pleas were tendered some nine months later.

LR pled guilty to an amended charge 1 on the indictment that on the date specified he did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that he did shout, swear, utter threats of violence, utter lewd remarks and chase passengers from said train contrary to section 38(1) of the Criminal Justice & Licensing (Scotland) Act 2010.

At the time of the offence LR was 17 years old and had no previous convictions, but the sheriff sentenced him to detention for 32 months, discounted from 36 months to reflect the plea of guilty and imposed a 12 month supervised release order.

DM pled guilty to an amended charge 3 on the indictment that on the date specified he did assault one of the passengers on the train and did repeatedly punch him on the head, knock him to the ground and repeatedly kick him on the body all to his injury.

At the time of this offence DM was 15 years old and the criminal justice social work report indicated that he first began offending at the age of 12 years, and that he had accrued a significant number of offences since then, most of which had been dealt with via the Children’s Hearing system.

He first appeared before the court aged 15 years and his offending behaviour since this time appeared to be influenced by peer relationships, excessive alcohol and drug misuse.

His offences were disposed of by way of non-custodial and custodial sentences, the latter within the Young Offender’s Institute and it appeared that a pattern of persistent offending had developed.

The sheriff sentenced him to detention for 18 months, discounted from a headline sentence of 24 months to reflect his plea of guilty and imposed a supervised release order of nine months.

However, they both appealed against the sentences imposed.

On behalf of LR, it was rugged that the sheriff had failed to give “adequate regard” to the appellant’s personal circumstances and in particular his age, the “very difficult upbringing” which he had had and which is narrated in the criminal justice social work reports and his “poor decision making”.

Counsel submitted that section 207 of the Criminal Procedure (Scotland) Act 1995 applied to LR and also referred to authorities to the effect that a young offender of approximately LR’s age “should be treated differently from an adult offender” and that conduct could be and should be “deemed less reprehensible and more capable of forgiveness” in respect of a young offender.

Any disposal, it was submitted, should “promote the growth of a healthy adult personality and identity”, referring to the remarks made by the court in McCormick v HM Advocate 2016 SLT 793.

Counsel for both appellants also referred to the cases of Kane v HM Advocate 2003 SCCR 749, Smart v HM Advocate 2016 SLT 1035, as well as Hannon v HM Advocate 2015 SLT 585 and Divin v HM Advocate 2013 JC 259.

The appeal judges took no issue with the principles established in those cases, but upheld the sheriff’s disposals.

Delivering the opinion of the court, Lord Menzies said: “Clearly the age of a young offender is an important factor to which a sentencer must have regard and, as in any case, a sentencer must have regard to factors such as a deprived or difficult upbringing.

“It does not appear to us that the sheriff in either of these two appellants has failed to have regard to their young age nor has he failed to have regard to the difficulties that they have experienced in their young lives.

“In paragraph 15 of his report to us in the appeal by LR (and this is echoed in the equivalent paragraph in his report in relation to DM) the sheriff seeks to distinguish the circumstances of these appellants from the circumstances of the appellants in Kane and Smart. We consider that he was correct to do so.”

He added: “We take no issue with those observations in the circumstances of those cases but those cases are not authority for the proposition that young offenders can go scot-free or never require a punitive element to sentencing.

“Each of the cases to which we were referred contained positive pointers for the future. Each contained some hope for improvement in the appellant’s circumstances if the appellant was provided with adequate support in a non-custodial disposal.

“We have been unable to find any similar positive pointers in either the appeals of LR or DM. We are also unable to agree with the submissions that the sheriff has failed to pay adequate attention or to give adequate weight to factors such as the appellants’ ages and their difficult background circumstances.

“Indeed it is clear that the sheriff would have imposed more severe sentences were it not for the age of each of the appellants and the sentences which he did impose were such as to indicate that he paid full attention to these factors. Accordingly, each of these appeals must be refused.”