Armstrong v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Woolman,Lord Pentland |
| Judgment Date | 24 June 2021 |
| Neutral Citation | [2021] HCJAC 34 |
| Court | High Court of Justiciary |
| Docket Number | No 25 |
[2021] HCJAC 34
Lord Justice General (Carloway), Lord Woolman and Lord Pentland
Advocate (HM) v Clark [2010] HCJAC 4; 2010 JC 90; 2010 SCCR 210; 2010 SCL 613; 2010 GWD 6-110
Cosgrove v HM Advocate [2007] HCJAC 54; 2008 JC 102; 2008 SCL 113; 2007 GWD 32-551
Iqbal v HM Advocate [2018] HCJAC 65; 2018 GWD 35-433
Kinlan v HM Advocate [2019] HCJAC 47; 2019 JC 193; 2020 SLT 97
LM v HM Advocate [2019] HCJAC 82; 2020 GWD 1-19
Lambert v Tudhope 1982 SCCR 144
McCormick v HM Advocate [2016] HCJAC 50; 2016 SLT 793; 2016 SCCR 308; 2016 SCL 651
Nelson v HM Advocate [2020] HCJAC 31; 2021 JC 1; 2020 GWD 28-367
Simpkins v HM Advocate 1985 SCCR 30
Skilling v McLeod 1987 SCCR 245
Thomas v HM Advocate [2014] HCJAC 66; 2014 GWD 22-417
Scottish Sentencing Council, Principles and Purposes of Sentencing: Sentencing guideline (Scottish Sentencing Council, Edinburgh, November 2018) (Online: https://www.scottishsentencingcouncil.org.uk/media/1964/guideline-principles-and-purposes-of-sentencing.pdf (6 September 2021))
Scottish Sentencing Council, Sentencing Young People: Draft sentencing guideline (Scottish Sentencing Council, Edinburgh, February 2020) (Online: https://www.scottishsentencingcouncil.org.uk/media/2045/sentencing-young-people-draft-guideline.pdf (6 September 2021))
Sentencing Guidelines Council, Attempted Murder: Definitive guideline (Sentencing Guidelines Council, London, July 2009) (Online: https://www.sentencingcouncil.org.uk/wp-content/uploads/Attempted-Murder-definitive-guideline-Web.pdf (6 September 2021))
Justiciary — Sentence — Accused convicted of aggravated assault and attempted murder — Co-accused also convicted subject to amendments and deletions — All co-accused successful in appeals against sentence — Whether appellant's sentence excessive by reference to comparative justice
Dillin Armstrong was charged with five co-accused on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with aggravated assault and attempted murder. The appellant pled not guilty and the cause came to trial before a temporary judge (GWM Liddle) and a jury in the High Court of Justiciary at Edinburgh, on 13 August 2019. On 26 August 2019, the appellant was convicted. One co-accused had pled guilty to an amended charge. The remaining four co-accused were convicted by the jury with various deletions and amendments to their respective charges. On 23 September 2019, the appellant was sentenced, to a 13-year extended sentence with a ten-year custodial term. The appellant appealed to the High Court of Justiciary against sentence on the ground that it was excessive. The appellant was refused leave to appeal. All five co-accused successfully appealed their sentences. The appellant made an application to the Scottish Criminal Cases Review Commission. The SCCRC referred the case to the High Court of Justiciary.
The appellant was charged along with five co-accused with aggravated assault and attempted murder. One co-accused pled guilty to an amended charge. The remaining five, including the appellant, proceeded to trial and were convicted by the jury, each subject to certain deletions and amendments. The assault involved the complainer, a member of a rival gang, being set upon by the six co-accused with various weapons, including knives, poles and a stone or paving slab. The assault left the complainer with multiple life-threatening injuries.
The appellant had had a difficult background and upbringing. He had accrued a number of previous convictions, including for crimes of violence. He received a 13-year extended sentence with a ten-year custodial term. He intimated an intention to appeal against conviction and sentence. His co-accused all appealed against sentence only. In due course, the appellant proceeded with an appeal against sentence only, submitting that his sentence was excessive. His note of appeal was lodged shortly after three of his co-accused were successful in their appeals and prior to the remaining two co-accused being successful in their appeals. The note of appeal did not raise comparative justice. The appellant was refused leave to appeal.
The appellant applied to the Scottish Criminal Cases Review Commission raising the issue of comparative justice. The SCCRC considered that the appellant's sentence was now arguably excessive by reference to comparative justice with one of the co-accused in particular whose sentence had originally been longer than the appellant's but was now significantly shorter than the appellant's.
It was argued on behalf of the appellant that: (1) the sentence was excessive in isolation; (2) the sentence was excessive by reference to comparative justice; and (3) an extended sentence was unnecessary.
Held that (1) the principle of comparative justice was an important one and co-accused who had been convicted of the same, or a similar, offence ought to attract substantially the same sentence, while any significant differences in sentence ought to be capable of rational explanation such as by reference to roles played in the offence or their personal backgrounds (paras 24–26); (2) viewed in isolation, the appellant's sentence had not been excessive (para 27); (3) even though a co-accused's sentence was significantly lenient it could not be ignored and required, as a matter of comparative justice, to be taken into account when dealing with the appellant's appeal (paras 30, 31); (4) an extended sentence was merited in the appellant's case standing the violent nature of the appellant's participation in the offence, his record, and his lack of remorse, empathy, or attempts to rehabilitate himself in prison (para 33); and appeal granted, sentence quashed and an 11-year extended sentence with an eight-year custodial term substituted.
Lambert v Tudhope 1982 SCCR 144 and Thomas v HM Advocate2014 GWD 22-417referred to.
The appeal called before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Woolman and Lord Pentland, for a hearing, on 24 June 2021.
Eo die, the court refused the appeal for the reasons set forth in the opinion of the Court which was subsequently delivered by the Lord Justice General (Carloway)—
Opinion of the Court—
[1] This is an appeal against sentence following a reference by the Scottish Criminal Cases Review Commission. It concerns the application of the principle of comparative justice.
[2] The appellant, who was aged 24 at the time of the offence, was convicted of a charge which libelled that:
‘[O]n 31 December 2018 at Delta Drive, Musselburgh … you … did assault Rhys Robert Reynolds … and utter threats, pursue him, drag him to the ground, repeatedly strike him on the head and body with knives, and poles, or similar instruments, restrain him, repeatedly punch, kick and stamp on his head and body, stab him on the body with a broken piece of pole or similar instrument and repeatedly strike him on the body with same, all causing him to lose consciousness all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and did attempt to murder him’.
The trial judge imposed an extended...
To continue reading
Request your trial
-
Appeal Against Sentence By Alistair Douglas
...the differences in the respective criminal records of the three accused. While the principle is an important one (Armstrong v HM Advocate 2021 JC 227), the question of comparative justice as between various accused on the same indictment can only be approached on a somewhat broad basis. Att......
-
Douglas v HM Advocate
...circumstances and the court was satisfied that it was not (para 11); and appeal refused. Cases referred to: Armstrong v HM Advocate [2021] HCJAC 34; 2021 JC 227; 2021 SLT 1033; 2021 SCCR 228 Alistair Douglas was charged with two co-accused in the High Court of Justiciary at Glasgow on an in......