Dillin Armstrong v. Her Majesty’s Advocate [2021] HCJAC 34

Note of appeal against sentence following a reference from the Scottish Criminal Cases Review Commission:- The appellant, who was aged 24 at the time of the offence, was convicted after trial at the high court of a charge of attempted murder. The trial judge imposed an extended sentence of 13 years comprising of a custodial element of 10 years and an extension period of 3 years. There were five co-accused, four of whom were also convicted of attempted murder, albeit two of those convictions were in different terms. Of the four who were convicted of the attempted murder, their ages ranged between 16 and 21. The trial judge imposed extended sentences on them of between 10 and 14 years comprising of custodial elements of periods of between 7 to 11 years. Thereafter, after two separate sentence appeal hearings, the court reduced these sentences to periods of imprisonment or detention of between five and seven years and none of them included extended sentences. The present appeal against sentence followed a reference by the Scottish Criminal Cases Review Commission and related to the application of the principle of comparative justice. It was submitted on behalf of the appellant that the length of the sentence was excessive and the imposition of an extended sentence was unnecessary. It was further submitted that the appellant was in a stable relationship, had a two year old daughter and all of his previous convictions were at summary level. The appellant suffered from ADHD and had not been taking his medication at the time of the commission of the offence. It was submitted that in considering what his co-accused had been sentenced to, an issue of comparative justice arose. Here the court allowed the appeal. The court noted that two of the appellant’s co-accused were aged only 16 or 17 at the time of the offence and received significantly lower prison terms than those which might be imposed upon an adult. The appellant was aged 24 at the time of the offence. The Scottish Sentencing Council considers a young person to be someone who is under the age of 25. The court considered that, when viewed in isolation, an extended sentence of 13 years, with a custodial element of 10 years was not excessive, however, the court had to have regard to the sentence imposed in relation to the co-accused, Renton, who was aged 21 at the time of the offence, and was sentenced to 7 years imprisonment. The court described his sentence as “significantly lenient”, however, the court stated that his sentence could not be ignored and the important principle of comparative justice had to have some effect in relation to the appellant’s appeal. The court considered that, in light of the violent nature of the appellant’s participation in the offence, his record and the terms of the CJSWR in relation to his lack of remorse, empathy or attempts to rehabilitate himself in prison, an extended sentence was necessary. The court quashed the sentence and substituted an extended sentence of 11 years comprising of a custodial element of 8 years and an extension period of 3 years.