Colin Marshall v. Her Majesty’s Advocate [2021] HCJAC 40


Note of appeal against sentence:- The appellant was convicted after trial at the high court of the following charges:- (1) an assault to injury involving repeated punching of his friend’s head, knocking him to the ground, and rendering him unconscious; (2) an assault to injury of his friend’s female partner by punching her on the head and body and pushing her causing her to fall down stairs; and (3) the attempted murder of the same friend by repeatedly punching his head and body and stabbing him in the neck with a knife, all to his severe injury, permanent disfigurement and to the danger of his life. Following charge 3, the complainer was left unattended, unconscious and bleeding outside the appellant’s flat and it was only good fortune that he was found by police officers who summoned an ambulance and he was treated for a 2.5cm laceration to his neck which was closed by using a steristrip. Following the obtaining of a Criminal Justice Social Work Report the appellant was sentenced to a cumulo extended sentence of 18 years, with a custodial element of 12 years and an extension period of 6 years. The appellant appealed against his sentence it being contended that the sentence imposed was excessive. The trial judge reported that he had regard to a number of factors in selected the sentence he did including the gravity of the attempted murder conviction, the appellant’s record and the high risk of further offending, and the need to protect the public.  It was submitted that the sentence was excessive:- (1) while the assault with the knife created a potential danger to life, in fact the neck injury sustained was not life-threatening and had been relatively minor and was treated with steristrips; (2) while the appellant has a lengthy record of previous convictions none of them had been in the high court, none were for crimes of violence and none of them had resulted in a sentence of more than 18 months imprisonment; and (3) the CJSWR suggested that the appellant did not seek out opportunities to use violence and was not predatory and that his involvement in violence was a disproportionate response to personal difficulties whilst under the influence of alcohol. Here the court considered that the sentence imposed was excessive having regard to the nature of the injury sustained and some indication outlined in the CJSWR that the appellant may have some insight in to his offending and the court allowed the appeal. The sentence was quashed and substituted with acumulo sentence of an extended sentence of 15 years imprisonment with a custodial element of 10 years and an extension period of 5 years. 

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