C.D. v. His Majesty’s Advocate [2025] HCJAC 15

Note of appeal against sentence:- On 5 November 2024, at a first diet at the sheriff court, the appellant pled guilty on indictment to three charges:- (1) assaulting a door steward at licensed premises by pushing and kicking him on the body and spitting blood on his face and body to his injury (charge 2); (2) assaulting the same steward by swinging a knife towards him twice (charge 3); and (3) assaulting a police officer to her injury following the appellant’s arrest when she bit the police officer causing a teeth imprint on her skin (charge 5). Following the obtaining of a Criminal Justice Social Work Report the sentencing sheriff selected a headline in cumulo sentence of 24 months imprisonment which he discounted to 18 months to reflect the utilitarian value of the plea of guilty. The appellant appealed against the sentence imposed, it being contended that it was excessive. The circumstances of the charges, which occurred on the same evening, were that the appellant was on a night out with friends and was considerably under the influence of alcohol in combination with her prescribed medication. It was submitted on behalf of the appellant that in light of the seriousness of the offences the sheriff was entitled to consider imposing a custodial sentence, however, there were present such exceptional circumstances which cumulatively made it appropriate for him to opt for a community disposal:- (1) the appellant had experienced a number of adverse childhood experiences and suffers from mental illness; (2) the appellant is now aged 30 (she was 28 at the time of the offences), has no previous convictions and has lived a pro-social life in which she is the main carer for her three young children one of whom (aged 11) is quadriplegic and suffering from cerebral palsy; (3) the CJSWR was in positive terms and assessed her as being a low risk of further offending and that she is suitable for, and willing to comply with, a community payback order; and (4) the appellant has been in custody since 18 December 2024 and has spent the equivalent of a sentence of more than 4 months imprisonment. Here the court allowed the appeal. The court emphasised the seriousness of the offences, in particular, the assaults with a knife and an assault on a police officer, however, the court considered the circumstances of the case to be exceptional. The court noted that the appellant was subject to the protection of section 204 of the Criminal Procedure (Scotland) Act 1995 and in light of the factors submitted on her behalf, in particular, her caring responsibilities for her three children and the engagement of ECHR Article 8 rights of the appellant and her family which carried considerable weight, the court considered that there was an appropriate alternative to custody available. The court quashed the sentence of imprisonment and substituted a community payback order with a supervision period of 18 months and an unpaid work or other activity requirement of 150 hours reduced from 300 hours to reflect the plea of guilty and the period in custody already served.