Joseph Llewellyn v. Her Majesty’s Advocate [2018] HCJAC 76

Note of appeal against sentence:- On 9 May 2018 the appellant was convicted on indictment at the sheriff court of a charge of assault which included throwing a brick at the complainer, chasing him and threatening him with violence whilst in possession of a knife. On 20 September 2018 the appellant was sentenced to 18 months detention. The appellant appealed against his sentence on the grounds that it was excessive. It was submitted on behalf of the appellant that:- (1) the offence was committed 2 years before the date the sentence was imposed; (2) at the time of the offence the appellant was 16 years old; and (3) the appellant was a first offender. It was submitted on behalf of the appellant that in all of the circumstances a sentence of detention was unnecessary and inappropriate. In 2017 the appellant was convicted of a charge of assault to injury and a contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 for which he was made subject to a community payback order with a supervision requirement for a period of 15 months imposed on 15 June 2017. Prior to sentencing the sheriff had obtained a Criminal Justice Social Work Report and a report from a clinical psychologist. Whilst both reports included a number of concerns regarding the appellant it was noted that the appellant had a history of ADHD and came from a family with a history of mental health difficulties which had contributed to a disruptive and violent family environment. It was also noted that the appellant had attempted suicide in 2016, 3 days after the commission of the present offence and he had been admitted to the acute psychiatric admissions ward of Hairmyres Hospital where he was an inpatient for six weeks. Both reports highlighted a number of positive changes in the appellant’s circumstances. The sentencing sheriff took the view that the offence which the appellant had been convicted of was serious one and in balancing the appellant’s age and lack of previous convictions against issues of public safety, deterrence and what he considered to be two rather negative reports, he considered that no sentence other than a period of detention was appropriate. Here the court allowed the appeal. The court stated that the sheriff had erred in his approach to sentencing, in particular, insufficient weight had been given to the appellant’s age and his circumstances at the time of the commission of the offence and the considerable period of time which had passed between the offence and the sentence being imposed. The court considered that given the appellant was aged 16 at the time the sheriff had given too much weight to the aim of deterrence rather than rehabilitation and that imposing a community payback order would not mean the appellant going “scot-free” as the sheriff had described it in his report. The court quashed the sentence of detention and imposed a community payback order with a supervision requirement of 2 years to include a requirement to undertake 200 hours of unpaid work in the community within 12 months.