Her Majesty’s Advocate v. Kenneth Graydon [2016] HCJAC 14

Crown appeal against sentence:- On 13 March 2015, at Glasgow High Court, the respondent pled guilty, at a preliminary hearing, to two charges:- (1) the theft of a quantity of groceries and tobacco at a convenience store in Prestwick; and (2) an assault of WY, an employee of the store, by struggling with her and repeatedly striking her on the body with a knife to her severe injury and permanent disfigurement. On 12 October 2015 the sentencing judge made a community payback order for a period of three years with requirements for supervision and mental health treatment. The Crown in terms of sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995 appealed that disposal as being unduly lenient. It was submitted on behalf of the Crown that the sentence imposed failed to give due weight to the gravity of the offences and the respondent’s schedule of previous convictions. It was submitted that the sentence imposed failed to satisfy the need for retribution and deterrence and the judge had placed undue weight on the rehabilitation of the respondent. In relation to charge 2 it was submitted that the complainer had suffered significantly following the assault and the case had been prosecuted in the High Court and ought to have attracted a substantial sentence of imprisonment and an extended sentence would also have been appropriate. On behalf of the respondent it was submitted that the sentencing judge had been very careful in his approach and had taken into account all relevant circumstances. In relation to the respondent’s previous convictions the last one of any significance was 9 years ago and since then there had been a very significant improvement in the condition of the respondent as a result of a treatment order. Here the court refused the appeal having regard to two important considerations:- (1) each case must turn on its own particular facts and circumstances; and (2) the question is not whether the court might have imposed a different sentence in the circumstances but rather that the court is satisfied that the sentence was unduly lenient and fell outside the range of disposals which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate. Whilst the court recognised that it was a very serious offence involving the respondent leaving his house armed with a knife and using it in a serious assault on a 60 year old female complainer who was at work the court also considered that the community based disposal represented a robust package of supervision and mental health treatment which was designed to protect the public and provide a framework for rehabilitation of the respondent.