Man who stabbed potential witness in upcoming trial loses appeal against extended sentence

About this case:

• Citation:
  [2023] HCJAC 34
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Boyd of Duncansby

Appellant James Dunn pled guilty at a first diet in the Sheriff Court to assault to severe injury and permanent disfigurement and to a statutory offence of possession of a knife. He argued that the sheriff had not taken all relevant factors into account in assessing the level of sentence.

The appeal was heard by Lord Pentland and Lord Boyd of Duncansby. Neilson, advocate, appeared for the appellant and Miller, advocate depute, for the Crown.

Adverse circumstances

The appellant had encountered the complainer in the street and asked him if he was giving evidence in a forthcoming trial, placing the complainer in a state of alarm. The appellant followed the complainer and lunged at him with a knife leaving him with a 10cm laceration from his left cheek at the ear lobe to his lower chin. He required 15 stitches and was left with a permanent scar.

Due to his age, the Sentencing Young People guideline applied to the appellant. In determining the headline sentence, the sheriff selected a cumulo sentence of 72 months, reduced to 65 months to take account of the appellant’s age at the date of sentencing. It was the appellant’s submission that, while a period of imprisonment was inevitable, the headline sentence was excessive.

Counsel for the appellant went on to acknowledge that the sheriff had made an allowance for his age but argued that the sentence imposed did not reflect the adverse childhood circumstances he had experienced, as detailed in the criminal justice social work report. His mother had problems of addiction, while his father had been sentenced to a long term of imprisonment when he was only four years old.

It was further submitted that the appellant had shown a willingness to turn his life around, having completed a trade course in mechanics and obtained a number of other training certificates. The sheriff had not accounted for the appellant’s lack of maturity and increased potential for long-term rehabilitation.

Error in his favour

Delivering the opinion of the court, Lord Boyd began: “The sheriff has clearly erred in his approach to the Sentencing Young People guideline. There is no warrant for assessing a headline sentence and then discounting the sentence as a result of his age. Nor has the sheriff explained why he selected 10% as an appropriate discount for age.”

He continued: “While we see no difficulty, in appropriate cases, in indicating what sentence might have been imposed had the young person been an adult, the assessment of culpability for a young person does not involve a mere discounting exercise of an arithmetical nature. The correct approach, in our opinion, is to assess the seriousness of the offence having regard to the level of culpability and the harm.”

Assessing the appellant’s culpability, Lord Boyd said: “Although the court should not rely solely on age, there is no evidence that the appellant is less mature then others of his age. The appellant has a bad record of offending. He has accrued sixteen convictions since the age of 18. Four convictions are at Sheriff and Jury level for assault either to injury or severe injury and he has a number of convictions for possession of a weapon.”

He went on to say: “It is to his credit that he has obtained qualifications and expresses a wish to turn his life around. So far, however, he has not taken any opportunity to address either his addiction problems or his criminal behaviour. While rehabilitation is a primary consideration in sentencing a young person there is little to suggest that the appellant at this point in his life is amenable to rehabilitation.”

Lord Boyd concluded: “The sheriff had regard to the report and took into account the appellant’s personal circumstances including his adverse childhood experiences. He assessed the offences as having a high degree of both culpability and harm. He regarded the appellant as an extremely dangerous individual who posed a high degree of risk to the public. He rightly considered that in this instance the court’s primary concern was protection of the public. While the sheriff erred in his approach to the Sentencing Young People guideline it was, if anything, in the appellant’s favour.”

The appeal against sentence was therefore refused.