J.B. v. Her Majesty’s Advocate [2020] HCJAC 35


Note of appeal against sentence:- On 6 January 2020, at Glasgow High Court, the appellant pled guilty by the accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to an indictment containing a charge of assault to severe injury, permanent disfigurement and to the danger of his life and attempted murder by repeatedly striking the complainer on the body with a knife. On 7 February 2020 the appellant was sentenced to 4 years detention backdated to 6 January 2020, discounted from 6 years to reflect the plea of guilty. The appellant appealed against the sentence imposed it being contended that the sentence was excessive, specifically that the sentencing judge erred in imposing a custodial sentence in light of the age of the appellant (16) at the date of the offence and the appellant had no previous convictions. It was further submitted that, in the event the court considered a custodial sentence was the only appropriate sentence, then the starting point of 6 years was excessive in the circumstances. On the basis of a psychological report from a developmental psychologist instructed by the defence together with the Criminal Justice Social Work Report which had been obtained for the adjourned diet for sentence it was submitted that, in the particular circumstances of the case, there was an appropriate alternative sentence to custody available in the form of a robust community disposal. It was submitted that, having regard to the contents of the psychological report and the terms of the CJSWR, the sentencing judge had erred in concluding that a non-custodial sentence was not appropriate or, in the alternative, that a starting point of 6 years was excessive. In relation to the appellant’s personal circumstances and the contents of the CJSWR it was submitted that at the time of the commission of the offence he was 16 (by the time of sentencing he was 17), he had no previous convictions, he had enjoyed full time employment having obtained qualifications as an electrician after school. In addition, he had expressed remorse and had exhibited positive attitudes to the author of the CJSWR and was assessed as being suitable for a community based disposal. It was further submitted having regard to the psychological report obtained that the appellant had experienced significant childhood trauma resulting in toxic childhood stress which altered the body’s self-regulatory system, leaving individuals less able to manage strong emotions and the psychologist considered these factors were relevant to the commission of the offence. Here the court agreed with the sentencing judge that the only appropriate sentence in the circumstances was a custodial one, having regard to the seriousness of the crime, however, having regard to the authorities the court considered that a starting point of 6 years was excessive and did not give sufficient weight to the best interests of the appellant and his re-integration into society. As such the court considered that a starting point of 5 years detention was appropriate discounted to 40 months detention to reflect the plea of guilty.

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