Grant Gay v. Her Majesty’s Advocate [2017] HCJAC 62

Note of appeal against sentence:- The appellant was indicted in relation to a charge of culpable homicide and proceeded to trial at Edinburgh High Court between 3 and 8 March 2017. Following their deliberations the jury deleted culpable homicide and acquitted the appellant of that element of the charge and convicted him of a charge of assault to severe injury. On 28 April 2017, after obtaining a Criminal Justice Social Work Report, the trial judge sentenced the appellant to two years imprisonment. The appellant appealed against the sentence imposed on the grounds that it was excessive. Here it was submitted on behalf of the appellant that the sentenced imposed was excessive and that a Community Payback Order was an appropriate alternative sentence to custody, failing which, it was contended that the sentence of 2 years should be reduced. It was submitted on behalf of the appellant that the following factors were in the appellant’s favour:- (a) section 204(2) of the Criminal Procedure (Scotland) Act 1995 applied in that the appellant had never received a sentence of imprisonment previously and the CJSWR indicated there was an appropriate alternative to a custodial sentence in the form of a CPO; (b) he suffered from anxiety and depression; (c) he had been a hard worker all his life was described as having a good work ethic and a number of letters of reference were provided; (d) he had been involved in running an amateur football team and was involved in the local community; (e) he had expressed genuine remorse and distress for his actions; (f) he was in a stable marriage and his wife is due to go into hospital for surgery and would require to be cared for on her release from hospital for a number of weeks. Here the court could find no error in the sentencing judge’s reasoning and refused the appeal. The court referred to the following factors in affirming the sentence of two years imprisonment:- (a) the appellant has a number of previous convictions including two convictions for assaulting police officers and a conviction for assault to injury; and (b) the present offence was a serious one and came about after the appellant confronted the deceased and did nothing to assist him after assaulting him.