LR and DM v Her Majesty’s Advocate [2018] HCJAC 59

LR and DM v Her Majesty’s Advocate [2018] HCJAC 59 was an appeal to the High Court of Justiciary heard by Lord Menzies and Lord Turnbull, in which both appellants’ appeals against the length of their custodial sentences were refused.

LR pled guilty to an amended charge of behaving in a threatening or abusive manner contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. He was sentenced by the sheriff to 32 months’ detention, discounted from 36 months to reflect his guilty plea, with a 12 month supervised release order. DM pled guilty to assault to injury and was sentenced to 18 months’ detention, discounted from a headline sentence of 24 months, with a 9 month supervised release order.

The offences occurred on a train journey between Westerton and Bearsden on the evening of 21 December 2015. Four passengers travelling together were approached by a co-accused who was not party to the appeal in an aggressive manner whilst holding a glass vodka bottle. LR then approached a female complainer and, after asking which of the boys with her was her boyfriend and receiving the answer that none of them was, stated “I’m going to pump you, you’re a wee belter,” which the sheriff treated as a threat to rape her. When the group of complainers attempted to leave the train at Bearsden Station, the third accused launched an unprovoked attack on one of the male complainers, striking him on the back of the head with the bottle and punching him repeatedly, causing injury including a lump to the back of his head. When another male complainer went to assist, DM launched a wholly unprovoked attack, punching him to the head and face, knocking him to the ground and repeatedly kicking him on the body. That complainer suffered an eye injury requiring hospital treatment, with a superficial cut to his right eye closed with steri-strips. As the group ran off the train LR chased them, shouting at the female complainer “I’m still gonna pump you, but I’m gonna kill you first.”

At the time of the offence LR was 17 years old with no previous convictions. DM was 15 years old and had first begun offending at the age of 12. He had accrued a significant number of offences, most dealt with by the Children’s Hearing system, with offending behaviour influenced by peer relationships and excessive alcohol and drug misuse. He had first appeared before the court aged 15 and a pattern of persistent offending had developed.

On behalf of LR, Mr Crabb submitted that the sheriff had failed to give adequate regard to the appellant’s personal circumstances and in particular his age, his very difficult upbringing and his poor decision making. He reminded the court that section 207 of the 1995 Act applied to LR and that a young offender of approximately LR’s age should be treated differently from an adult offender, with conduct deemed less reprehensible and more capable of forgiveness. He submitted that any disposal should promote the growth of a healthy adult personality and identity, referring to McCormick v HM Advocate 2016 SLT 793. He argued that a deterrent sentence should not be used often or to its fullest in respect of young offenders. Both Mr Crabb and Mr Findlater, who appeared for DM, referred to Kane v HM Advocate 2003 SCCR 749 and Smart v HM Advocate 2016 SLT 1035, with Mr Findlater also referring to Hannon v HM Advocate 2015 SLT 585 and Mr Crabb to Divin v HM Advocate 2013 JC 259.

The court took no issue with the principles enunciated in those cases and in particular the important dicta in Kane and Smart. The court accepted that the age of a young offender is an important factor to which a sentencer must have regard and that a sentencer must have regard to factors such as a deprived or difficult upbringing. However, it did not appear to the court that the sheriff in either case had failed to have regard to the appellants’ young age or to the difficulties they had experienced in their young lives. The sheriff in his reports sought to distinguish the circumstances of these appellants from those in Kane and Smart, and the court considered he was correct to do so.

The court considered the distinguishing features of Kane, noting that the appellant in that case was a 16 year old alcoholic with a disturbed family background who had pled guilty to robbing a 14 year old paper boy of some £44 at knife point, but whose only previous conviction was in the district court and who had the opportunity to receive treatment for his problems and to reform his life, with encouraging reports on his motivation. In Smart the appellant was aged 18, had an unsettled childhood, but had returned to live with his grandparents in a stable arrangement, had moved away from the area where he offended, had not reoffended since doing so, and showed real recognition that he required to take steps to address his future. The court observed that it took no issue with those observations in the circumstances of those cases but that those cases were not authority for the proposition that young offenders can go scot-free or never require a punitive element to sentencing. Each of the cases referred to contained positive pointers for the future and some hope for improvement in the appellant’s circumstances if adequate support in a non-custodial disposal was provided. The court found no similar positive pointers in either of the appeals before it.

The court was unable to agree with the submissions that the sheriff had failed to pay adequate attention or to give adequate weight to factors such as the appellants’ ages and their difficult background circumstances. It was clear that the sheriff would have imposed more severe sentences were it not for the age of each of the appellants and the sentences imposed indicated that he paid full attention to these factors. In short, both appeals against sentence were refused as the sheriff had properly taken account of the appellants’ ages and difficult backgrounds and the sentences were not excessive in the circumstances of these serious offences.