IG v Her Majesty’s Advocate [2018] HCJAC 63
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IG v Her Majesty’s Advocate [2018] HCJAC 63 concerned an appeal against sentence heard in the High Court of Justiciary in which the court allowed the appeal and substituted a Community Payback Order for the sentence of detention originally imposed. The appellant was a child aged 14 years at the time of sentence.
On 25 June 2018 the appellant pleaded guilty to three charges arising from conduct on 15 September 2017 at a school in West Lothian where he was then a pupil aged 13. Charge two was having an article with a blade, namely a knife, contrary to the Criminal Law (Consolidation) (Scotland) Act 1995. Charge three was assaulting LG, a 14-year-old pupil, by repeatedly punching him on the head and body to his injury. Charge four was assaulting RM, also a 14-year-old pupil, by punching him on the head and struggling with him whereby he was struck on the head with a knife, to his severe injury and permanent disfigurement. The sheriff sentenced the appellant to a cumulo sentence of 15 months’ detention, reduced to 12 months to reflect the utilitarian value of the guilty plea.
The background to the offences was that there had been ongoing issues between the appellant and a particular group of boys within the school. In August 2017 the appellant had been assaulted by members of this group, an assault which was filmed on a mobile phone and posted on social media. Subsequently the appellant and the complainer LG arranged over social media to meet for a fight at the school. The appellant’s explanation was that he decided to take the knife with him in order to threaten any other members of the group whom he believed might intervene. The incidents occurred at around 8.30am in the canteen area of the school where many other pupils were present. The appellant punched LG to the head, causing him to fall to the ground, and then repeatedly punched him on the head and body. After this fight was separated and the appellant began to walk away, the complainer RM approached him asking why he was hitting the other boy. Mr RM then pushed the appellant and they struggled and engaged in a fight during which they fell to the ground. During this incident the complainer was struck on the right cheek with the knife which was being held by the appellant. The incident was separated by older boys and the head teacher attended. Mr RM was seen to have a notable and serious facial injury and was taken to hospital, where he required five stitches to a deep laceration on his right cheek. At the date of sentencing, some nine months after the incident, the complainer still had a clearly visible scar on his cheek of which he felt very self-conscious. A victim impact statement explained the impact which the scar to his face had upon him and his concerns about its effect in the future, such as when he attended job interviews.
The sentencing sheriff had available to him advice from the Children’s Panel recommending support rather than punishment and asking for the case to be remitted to the Children’s Hearing system. He also had a Criminal Justice Social Work Report which suggested that the case should be remitted to follow the advice of the Children’s Hearing. The sheriff concluded that the offence was of a seriousness that was not appropriate for remission to the Children’s Panel. Whilst he recognised that the Panel could help provide advice and support, he concluded that such a disposal would not address other important aspects of sentencing. The sheriff recognised that charge four did not reflect that the injury inflicted was intentional, however he considered that it was of crucial importance in assessing the appellant’s culpability to recognise that he had deliberately taken a knife to school in the knowledge that he was to become engaged in a fight and that he did so in order to threaten any other members of the group whom he believed might intervene. In his report to the appeal court the sheriff stated that he was fully aware of the circumstances surrounding the commission of the offences and described this as a sad and anxious case. He recognised that a sentence of detention could only be imposed if no other method of dealing with the appellant was appropriate and that his priority was to prevent further offending and to have full regard to the appellant’s welfare as a child. He concluded that to take proper account of the appellant’s actions in taking a knife into school, to take account of the terrible outcome of the incident and the undoubted concern which existed amongst parents, teachers and others regarding knives being taken into school, it was important for there to be a measure of punishment for what he saw as a grave crime. He concluded that it was important to make it plain that the taking of knives into school would not be tolerated and would be dealt with seriously, and that these objectives could only be achieved by the imposition of a custodial sentence.
On appeal counsel for the appellant contended that the imposition of a period of detention by the sheriff was excessive and inappropriate. The background circumstances to the offences were reiterated and it was submitted that the sheriff erred in failing to attach sufficient weight to these. It was stressed that the appellant took the knife because he was fearful and he did not intend to assault anyone with it. The appellant’s own circumstances were revisited and the efforts which he had made to engage with support services since the date of the offence were explained and emphasised. It was submitted that the sheriff had erred in failing to give sufficient regard to the appellant’s age and the availability of a disposal which would address the causes of his offending, thereby reducing the risk of further harm. Counsel referred to Kane v HM Advocate 2003 SCCR 749 and Smart v HM Advocate [2016] HCJAC 73 concerning the approach to be taken by the court in sentencing a young offender. It was submitted that the sheriff had placed too much weight on the sentencing aims of retribution and deterrence and on the nature and seriousness of the offence, rather than having regard to the need for and the availability of rehabilitation of the appellant.
The court considered the background of bullying to be a relevant consideration and one which the sheriff ought to have given due consideration to. The court was impressed by and took account of certain comments in the Criminal Justice Social Work Report. At page three of eight the appellant was said to have shown a level of insight into his offending and it was noted that he had engaged in work to address some of the issues which had contributed towards his behaviour whilst working alongside the West Lothian Criminal and Youth Justice Team. This engagement, it was said, suggested that the appellant recognised the need to accept the consequences of his behaviour. It was also noted that the appellant had been affected by his involvement with the criminal justice system and he appeared to have recognised the importance of making changes to his behaviour for the future. The author noted that the appellant displayed a level of recognition regarding the impact of his behaviour on the victims which was appropriate for his age and had shown an understanding of the impact of his behaviour on his family and expressed regret for this. The court observed that these were important considerations which could distinguish the appellant from many of those described in such reports. It was also, in the court’s opinion, important to recognise that there was no background of trauma or abuse disclosed in the social enquiry report concerning the appellant. The social enquiry report reflected a good family background and a caring and loving environment. This again distinguished the appellant’s case from, for example, cases such as Kane and Smart. The court recognised the legitimacy of the sheriff’s concerns as set out in his report but accepted and agreed that he had failed to adequately balance these concerns against the positive elements contained within the social enquiry report.
Nevertheless, the court considered that the circumstances of the offences disclosed a serious matter and given the consequences of the appellant’s conduct the court did not think it appropriate to remit the case to the Children’s Panel. The court wished to keep control of the disposal of the case and to be in a position to revisit that if necessary. That having been said, the court was prepared to give effect to the submissions advanced on the appellant’s behalf and quashed the sentence of detention imposed. In its place the court imposed a Community Payback Order with a supervision requirement for a period of 18 months. In short, the appeal court substituted a Community Payback Order for the custodial sentence, finding that the sheriff had failed adequately to balance legitimate concerns about knife crime against the appellant’s positive engagement and the availability of rehabilitative measures.