S.D. v. Her Majesty’s Advocate [2015] HCJAC 83

Note of appeal against sentence:- On 26 February 2015, at Glasgow High Court, the appellant pled guilty at a trial diet of assaulting his 6 week old daughter on 3 October 2012 to her severe injury, permanent impairment and to the danger of her life by seizing her on the body, shaking her, throwing her against a surface or by means to the Prosecutor unknown. A Criminal Justice Social Work Report was obtained and, on 31 March 2015, the appellant was sentenced to 7 and a half years imprisonment discounted from 9 years to reflect the utilitarian benefit of the guilty plea. The appellant appealed against the sentence imposed on the basis that the period of imprisonment imposed was excessive. It was submitted on the appellant’s behalf that, whilst it was accepted that the child had suffered catastrophic injuries, the sentencing judge’s description of what the appellant had done as being “obviously likely to cause serious harm” was wrong as it was not known by the appellant that such damage could be inflicted by the degree of force used. It was submitted that the conduct amounted to a momentary loss of control for a matter of seconds by a loving father who had never previously received a prison sentence and there was no suggestion of previous assaults or neglect of the child. It was further submitted on behalf of the appellant that the present case was indistinguishable from that of SS v HMA [2015] HCJAC 63 in which seven years imprisonment was selected as the appropriate sentence before discount. Reference was also made to HMA v IWKM 2003 SCR 499 and RB v HMA 2004 SCCR 443 and issues of comparative justice. Here the court considered that the judge at first instance had been correct to view the conduct as involving a significant degree of culpability having regard to the catastrophic consequences for the child, however, the court did not consider that a starting off point of 9 years was appropriate, particularly in light of the cases referred to. The court did, however, consider that the present case was more serious than the circumstances in SS in that here the appellant had not only shaken the child but had thrown her down on to a couch. In the circumstances the court quashed the sentence and imposed a sentence of 6 years and 9 months discounted from 8 years.