Harry Finnegan v. Her Majesty’s Advocate [2016] HCJAC 88

Note of appeal sentence:- On 24 May 2016, at Dundee Sheriff Court, the appellant pled guilty on indictment to a charge of assault to severe injury and permanent disfigurement which included an averment of repeatedly kicking the complainer on the head as he lay on the ground. The sentencing sheriff imposed a period of detention having taken the view that:- “...the kicking was a sustained assault on a man in a vulnerable position. The licensee had to restrain the appellant physically. Kicking on the head in particular, which by his plea the appellant admitted, is dangerous ... I have known it to inflict brain damage and I have known it to kill ... he did suffer injuries which are admitted to have been severe and he now has a scar on his face and some psychological consequences.” Here it was submitted on behalf of the appellant that the imposition of a period of detention was excessive having regard to:- (a) the appellant being aged 19; (b) the appellant had no previous convictions and was of good character; (c) on the day in question the appellant was upset and had consumed too much alcohol as he had attended the funeral of a friend who had committed suicide; (d) the Criminal Justice Social Work Report assessed the appellant as being at low risk of offending; and (e) he had a supportive family and his employers had provided a reference and were also supportive of him. Here the court allowed the appeal. The court observed that the sentencing sheriff had failed to refer to the provisions of section 207(3) of the Criminal Procedure (Scotland) Act 1995 which states:- “The court shall not impose detention on an offender under 21 years of age unless it is of the opinion that no other method of dealing with him is appropriate and the court shall state its reasons for that opinion”. The court considered that there was an appropriate alternative sentence that could be imposed and quashed the sentence of detention and imposed a Community Payback Order with various additional requirements including 200 hours of unpaid, reduced from 300 hours to reflect the period of time the appellant had spent in custody, a supervision requirement of 6 months duration and a Compensation Order requiring the appellant to pay compensation to the complainer £800.