James Dunn v. His Majesty’s Advocate [2023] HCJAC 34

Note of appeal against sentence:- The appellant pled guilty at a first diet at the Sheriff Court to an indictment containing a charge of assault to severe injury and permanent disfigurement and to a charge of possession of a knife contrary to section 49(1) of the Criminal Law (Consolidation) Act 1995. The sheriff sentenced the appellant to an extended sentence of 8 years of which the custodial element comprised of 4 years, reduced from 65 months to take account of the plea of guilty. The sheriff indicated that he selected a cumulo headline sentence of 72 months before reducing it to 65 months to take account of the appellant’s age of at the date of sentencing and the application of the Sentencing Young People Guideline. On behalf of the appellant it was submitted that the headline sentence of 6 years was excessive and, whilst the sheriff was correct to make allowance for the appellant’s age, insufficient weight had been given to the adverse childhood circumstances that the appellant had experienced. Here the court refused the appeal given the seriousness of the offence. The court considered, however, that the sentencing sheriff had erred in, firstly, assessing a headline sentence and then discounting that headline sentence as a result of his age and, secondly, no explanation had been offered as to why he had selected a discount of 10% to that headline sentence. The court stated that “the assessment of culpability for a young person does not involve a mere discounting exercise of an arithmetical nature” but, rather, requires an assessment of the seriousness of the offence having regard to the level of culpability and the harm. The court considered that whilst the sheriff had erred in his approach in applying the Sentencing Young People Guideline, that error was in the appellant’s favour and, having regard to the high degree of culpability and harm, along with the high level of danger posed by the appellant to the public, the sentence could not be considered excessive.