Dale Hibbard V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Carloway |
| Judgment Date | 14 October 2010 |
| Neutral Citation | [2010] HCJAC 111 |
| Date | 04 November 2010 |
| Court | High Court of Justiciary |
| Published date | 04 November 2010 |
| Docket Number | XC228/10 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Mackay of Drumadoon | [2010] HCJAC 111 XC228/10 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by DALE HIBBARD Appellant; against HER MAJESTY'S ADVOCATE, Respondent: _____________ |
Appellant: Jackson Q.C., CM Mitchell; John Pryde & Co. SSC (for Ian McCarry & Co., Glasgow)
Respondent: A Miller, Solicitor Advocate, A.D.; Crown Agent
14 October 2010
1. General
[1] On 5 March 2010, after a trial lasting several days at the High Court in Glasgow, the appellant was sentenced to be detained without limit of time in terms of section 205(2) of the Criminal Procedure (Scotland) Act 1995 for the murder of Anthony Ford. The trial judge fixed the punishment part of his sentence at 11 years in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (see section 6(1)(b)(i)). He fixed an identical period for a co-accused, namely David McKenzie, for his part in the murder. A third accused, John Gallagher, was sentenced to 9 years detention for culpable homicide. A fourth, Daryl Barney, was made the subject of a community service order, having been convicted of an assault. A fifth accused was acquitted.
2. The Murder
[2] The circumstances, as explained by the trial judge, were that on the evening of 7 July 2009, the appellant, who was then aged only just 15 years of age, had been engaging in gang violence, involving the use of sticks. He then joined an assembly of other youths, including the four co-accused, at the corner of Golspie Street and Shaw Street, Govan. At this time, the deceased was walking his dog past the group, in the company of a friend. The deceased was aged 32. He had had a long standing heroin addiction, although his family spoke of him in more positive terms. He had been acquitted of the assault and attempted murder of Mr Gallagher's father; an episode which had left the father with serious permanent brain damage.
[3] Mr Gallagher, who was then aged almost 17, made off after the deceased with the appellant in tow. Both had sticks as they pursued the deceased into the pedestrian zone of Nethan Street and onto Harhill Street. The others followed at a more leisurely pace. There was building work in the vicinity and scaffolding equipment was piled on the roadway. The group threw scaffolding clamps at the deceased as they closed in upon him. The deceased picked up a pole and tried to escape through the group. Although he managed to hit Mr Barney with some force, he was disarmed, punched and tripped. He fell to the ground.
[4] The group, including the appellant, then set about assaulting the deceased by kicking him repeatedly on the head and body as he lay on the ground. One of them, probably Mr McKenzie, who was not yet 15, struck him a fatal blow to the head with a scaffolding pole. At this point most of the group broke off the attack; the deceased by this time lying unconscious on the ground. But the appellant continued to attack by punching him repeatedly on the face.
[5] The deceased suffered a depressed and comminuted fracture to the top of the skull and a fracture of the cheekbone, probably caused by the pole. He had no prospect of survival. He also had extensive bruising to the arms and legs and fractured ribs and facial bones, caused by the other aspects of the assault.
3. The appellant's background
[6] There was a detailed Social Enquiry Report before the trial judge. It had been compiled after several meetings with the appellant, examination of the Social Work Department's records, consultation with his previous social workers and discussions with his teachers. The appellant's parents separated soon after his birth. His mother went on to give birth to his two younger half-sisters to different fathers, whom he knew. He was soon put on the Child Protection Register for physical neglect. His mother was a drug addict. He had once found her unconscious on the floor as a result of an overdose when he was aged 9. He often saw his mother assaulted as a result of neighbourhood disputes.
[7] The appellant's primary education was disrupted because of his moving between a number of schools. Although academically capable, he was disruptive and assaulted other pupils. He was a promising footballer but was not able to take advantage of possible professional opportunities in that field because of lack of money. In July 2004 he was made the subject of a supervision order. That order was still in force at the time of the murder. Meantime, the appellant had had no contact with his own father and no male role model at all throughout his childhood.
[8] In January 2007 the appellant went to live with his maternal grandmother, who had alcohol problems and argued with him to the point of assault. His half-sisters went to live with paternal relations and he had limited contact with them. In November 2008, he returned to live with his mother, despite her continuing problems. From the age of about 14, he drank alcohol, notably Buckfast and large quantities of cider, to excess. He became involved in anti social behaviour, notably gang violence in Govan, where he was a prominent member of the "Young Crossie Posse".
In relation to the murder, the Social Worker remarks:
"The subject appears to have been motivated by a desire to establish himself as a well liked, popular and confident young man whilst seeking affirmation, warmth and respect. [He] appears to have been of the belief that this was only attainable through involving himself in territorial conflict and violence".
He was appropriately remorseful.
4. The Sentence and the Appeal
[9] Having referred to all the various circumstances, the trial judge reports:
"[27] I took account of the fact that the appellant was only 15 when this incident happened, by reducing the punishment part from what it would...
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