Jordan Mitchell v. His Majesty’s Advocate [2024] HCJAC 8

Note of appeal against sentence:- On 15 December 2022, at the High Court, the appellant was sentenced to an extended sentence of 14 years, comprising of a 4 year custodial term and an extension period of 10 years, having been remitted from the sheriff court at Falkirk having pled guilty under the accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to four charges:- (1) possession of a knife at A & E Department of Forth Valley Royal Hospital contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995; (2) at A & E Department of Forth Valley Royal Hospital behaving in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did state that you had killed and mutilated animals on a number of occasions and that you had intended to murder members of the public in the future contrary to Section 38(1) the Criminal Justice and Licensing (Scotland) Act 2010; (3) on a different occasion to those libelled in charges 1 and 2 also at Forth Valley Royal Hospital assaulting Greig Smith by repeatedly kicking him on the head and body which offence was aggravated by prejudice relating to disability in terms of Section 1 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009; and (4) breaching his bail conditions by failing to attend Brockville Social Work when required to do so contrary to section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995. On 15 December 2022 the judge did not consider that the Risk Criteria specified in section 210E of the 1995 Act may have been met and did not make a Risk Assessment Order but, rather, imposed an extended sentence as a means to protect the public. The appellant appealed against the sentence imposed, it being contended that the headline custodial sentence of 5 years and 6 months (which was discounted to 4 years on account of the plea) was excessive having regard to the nature of the offences and the appellant’s age, his limited criminal record and his mental health. It was also contended that the extension period was excessive having regard to his limited criminal record. Here the court noted the contrast between the approach taken on behalf of the appellant before the sentencing judge on 15 December 2022, when it was conceded that an extended sentence may be appropriate, and the approach at the initial appeal hearing on 14 March 2023, when it was submitted that the extended sentence imposed was excessive. It was submitted on behalf of the appellant that the court appeared to have imposed a custodial element of 4 years to allow for an extended sentence to be imposed due to concerns about public protection in the future and such an approach, namely, to impose a sentence higher than the gravity of the offences and culpability of the appellant, for that purpose, was inappropriate. The High Court considered that the Risk Criteria may be met and made a Risk Assessment Order and instructed Dr Marshall to prepare a Risk Assessment Report. Dr Marshall subsequently prepared a RAR and concluded that the appellant presented a high risk. Dr MacNab, who was instructed on behalf of the appellant, to prepare a RAR similarly concluded that the appellant presented a high risk. On behalf of the appellant a Notice of Objections was lodged which did not take exception to the assessment by both Risk Assessors that the appellant was high risk. Nevertheless, it was contended that Dr Marshall had erred in recommending that an OLR should be imposed and insufficient weight had been given to the appropriateness of an extended sentence having regard to various factors including the appellant’s limited record of non-analogous previous convictions, that he had no convictions for harming animals or people and the terms of Dr MacNab’s report and her view that the appellant would benefit from therapeutic work in relation to his risk formulation. At the continued appeal hearing following receipt of the RARs and the lodging of the Notice of Objections it was submitted on behalf of the appellant that it was now accepted that an extended sentence was appropriate and the court was invited to refuse the appeal and not to impose an OLR. On behalf of the Crown it was submitted that the task of assessing future risk was ultimately a matter for the court at the time of imposing sentence, that both Risk Assessors had carried out extensive investigations and concluded that the appellant posed a high risk to the safety of the public at large while at liberty. Here the court utilised its powers under section 118(4)(b) of the 1995 Act to consider the issue of sentence anew having regard to the further information available to the court in the form of the two RARs. The court considered that the appellant presented a particularly high risk to public safety and had been assessed as presenting a high risk of carrying out a killing spree or mass murder and of acting as a lone terrorist. The court was satisfied that the Risk Criteria were met and that an Order for Lifelong Restriction be made. The court quashed the extended sentence imposed and substituted for it an Order for Lifelong Restriction with a punishment part fixed at two years backdated to 18 February 2022 when the appellant was first remanded in custody following his first appearance on petition.