L.M. v. Her Majesty’s Advocate [2019] HCJAC 82

Note of appeal against sentence:- On 22 July 2019, at Livingston Sheriff Court, the appellant, now aged 17, pled guilty to a charge of assault to severe injury by repeatedly punching and kicking CB, aged 16, on the head and body and striking him on the body with a knife, under provocation. Following the obtaining of a Criminal Justice Social Work Report the sentencing sheriff imposed a sentence of 10 months detention, reduced from a period of 15 months, to reflect the appellant’s early offer of a plea of guilty. The appellant appealed against the sentence imposed on the ground it was excessive, an alternative to a custodial sentence being appropriate and available in the form of a robust community payback order. It was submitted that :- (1) the appellant was aged 16 at the time of the offence; (2) the plea was tendered and accepted under provocation; (3) the appellant had been at liberty between the date of the offence and the date of his sentencing; (4) the CJSWR highlighted that the appellant had been brought up in a dysfunctional home environment with both of his parents involved in substance abuse and his father had spent some time in prison and recently, his grandmother, uncle and father had all died; and (5) whilst from the age of 12 his behaviour had been troublesome that was largely due to the negative peer group he associated with and whilst he had some appearances in the children’s hearing system this was his first criminal conviction and he had gained employment prior to the offence. Here the court allowed the appeal. The court highlighted that the appellant enjoying the benefit of section 207 of the Criminal Procedure (Scotland) Act 1995 and that prison or detention should be seen as a sentence of last resort. Having regard to what has been said in a number of recent cases relating to the sentencing of children the court reiterated that perhaps the most important aim of any sentence imposed on a young person should be to promote the process of maturation, the development of a sense of responsibility and the growth of a healthy adult personality and identity. Here the court considered that the appellant’s difficult background and the fact the offence was committed under provocation were important factors in pointing away from a custodial sentence being appropriate. The court considered that the sentencing sheriff failed to indicate what the sentencing purpose was behind the disposal selected and the court considered that the purpose appeared to be protection of the public, deterrence and punishment as opposed to any focus on rehabilitation. Here the court agreed that the sentence imposed was excessive and quashed the sentence and substituted a community payback order with:- (a) a supervision requirement including a supervision plan to run for a period of 18 months; and (b) a requirement to perform 150 hours of unpaid work in the community within a period of 12 months (to reflect the period of 7 weeks which the appellant spent in custody before being granted interim liberation).