Appeal Against Sentence By Patrick Ohara Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Brodie |
| Neutral Citation | [2016] HCJAC 107 |
| Court | High Court of Justiciary |
| Date | 11 October 2016 |
| Docket Number | HCA/2016 |
| Published date | 22 November 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 107
HCA/2016/000198/XC
Lord Brodie
Lord Turnbull
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL AGAINST SENTENCE
by
PATRICK OHARA
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Paterson Sol. Advocate; Paterson Bell
Respondent: Hughes AD; Crown Agent
11 October 2016
[1] This is the appeal of Patrick Ohara, whose date of birth is 31 December 1996. On 8 March 2016, the appellant was convicted after trial in respect of three charges on indictment. He admitted the first two charges during the course of that trial. The first charge was one of contravention of section 38(1) of the Criminal Justice & Licensing (Scotland) Act 2010, the second charge was a charge of common law assault and the third charge was contravention of section 3 of the Sexual Offences (Scotland) Act 2009 which was libelled as an assault with intent to rape.
[2] On 31 March 2016, having had the opportunity of considering a Criminal Justice Social Work Report, the sheriff imposed a single extended sentence in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. That sentence had a custodial term, being a term of detention of 4 years with a 4 year extension period, making it a sentence of 8 years.
[3] The sheriff has provided two reports. From her report of 14 March 2016, one sees that the three charges arose from an incident which occurred on 10 October 2014. The appellant had been drinking lager and, according to one of the witnesses at trial, smoking cannabis. He and some eight male companions entered the house of the complainer uninvited about 8pm in the evening announcing that they were “taking over” and going “to party here tonight.” The complainer was aged 47, he was a man of slight stature and build. He was described by the sheriff as vulnerable. He asked the appellant and his companions to leave. The appellant, who was clearly the leader of the group, refused. He punched the complainer to the head and body between 12 and 20 times despite being asked to stop by other members of the group. The appellant also attempted to damage a cooker. He kicked doors and having asked others in the group to leave, the appellant then engaged in the conduct which is more particularly described in charge 3 which, includes the libel of assault to injury with intent to rape.
[4] Leave to appeal the sheriff’s sentence has been granted, limited to the contention that the length of the custodial term and the extension periods were excessive. A number of factors were relied on in support of that contention. It was said, although the sheriff was doubtful of this, that the appellant had been in employment and had family support. It was said that there was no established pattern of offending as an adult and that there had been no further offending in the period of a year and half between the date of the offences and the date of sentencing. However, what Mr Paterson who appeared for the appellant concentrated on, was that the appellant being only 17 years of age at the date of the offences and only 19 years at the date of sentencing, thus to impose a custodial sentence of the length that had been imposed here, was entirely inappropriate.
[5] In considering that submission, we took the view that what was involved in this indictment were three serious offences. We note from the Criminal Justice Social Work Report that the appellant is described as someone with no victim empathy and that is notwithstanding the fact that he is also described as a highly intelligent young man. The assessment of risk of sexual offending is high. However, as was pointed out in the course of Mr Paterson’s submissions, that apparently was by reference to the application of the Risk Matrix 2000, which is a test described in the Criminal Justice Social...
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