Her Majesty's Advocate V. Anthony Johnstone+william Mcmanus+adam Mcmanus
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne,Lord Justice General,Lord Eassie |
| Judgment Date | 19 January 2010 |
| Neutral Citation | [2010] HCJAC 3 |
| Court | High Court of Justiciary |
| Published date | 19 January 2010 |
| Docket Number | XC406/09, |
| Date | 19 January 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Eassie Lord Bannatyne | [2010] HCJAC 3 Appeal Nos: XC406/09, XC405/09 and XC403/09 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in CROWN APPEALS AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against ADAM JAMES McMANUS, WILLIAM McMANUS and ANTHONY JOHNSTONE Respondents: _______ |
Appellant: Cherry, Q.C., A.D.; Crown Agent
Respondents (A McManus): Ogg, Solicitor Advocate; Tods & Mitchell, Paisley
(W McManus): Hamilton; Gordon Ritchie & Co., Paisley
(Johnstone): McCormick, Solicitor Advocate; BJ Langan & Co., Glasgow
19 January 2010
Introduction
[1] At a preliminary hearing at the High Court at Glasgow on 14 April 2009 each of the respondents pled guilty to the following charge:
"(007) on 22 November 2008 at Sycamore Avenue, Cedar Avenue and Maple Drive, all Johnstone you ADAM JAMES MCMANUS, WILLIAM MCMANUS and ANTHONY JOHNSTONE did assault David Collins, c/o Strathclyde Police, Johnstone and did pursue him, seize hold of him, knock him to the ground, repeatedly punch him on the head and body, repeatedly kick him on the head and body and repeatedly stamp on his head, all to his severe injury, permanent impairment and to the danger of his life;
you ADAM JAMES MCMANUS did commit this offence while on bail, having been granted bail on 11 August 2008 at Paisley Sheriff Court".
The pleas were tendered under deletion, from the terms of the libel in the indictment, of the words "and did attempt to murder him".
The first respondent also pled guilty to the following charge:
"(004) on 8 August 2008 at 173 Willow Drive, Johnstone, you ADAM JAMES MCMANUS ... did assault Thomas McInally, c/o Strathclyde Police, Johnstone and did repeatedly punch and kick him on the head and body all to his injury".
[2] The first respondent was subsequently sentenced to 45 months' detention in cumulo, backdated to 25 November 2008. The sentencing judge indicated that, but for the plea of guilty, the sentence would have been 5 years' detention, with 6 months being attributable to the bail aggravation. The second and third respondents were each sentenced to 3 years' detention, backdated to 16 April 2009. These sentences were discounted from 4 years to take account of their early pleas of guilty. The appellant contends that these sentences were unduly lenient and has brought the present appeals under section 108(1)(a) and (2)(b)(i) of the Criminal Procedure (Scotland) Act 1995, although no issue is taken with that part of the first respondent's cumulo sentence which is attributable to charge 4.
Circumstances of the offence
[3] The offence in charge 7 was the subject of an agreed narrative. At about 3 pm the complainer, who was 34 years old, had become involved in an altercation with the first respondent, after which he was pursued by all of the respondents, before being knocked to the ground and assaulted in the manner libelled. Only the first respondent was personally responsible for stamping on the complainer's head, although all three accepted having kicked him on the head. The complainer was rendered unconscious. He suffered bruising to his face and his right eye was swollen and closed. On admission to hospital he had diffuse anoxic brain trauma due to breathing restrictions as well as diffuse axonal (physical) brain trauma. He spent four days in intensive care. His level of consciousness had not much improved by 1 December 2008. He thereafter recovered consciousness slowly, but had problems associated with brain injury, including speech and comprehension difficulties, and was doubly incontinent. The prognosis was that he would continue to have cognitive defects into the foreseeable future, particularly with problem solving and decision-making. On being discharged from hospital he had required physiotherapy and it was thought that he would not recover the full use of one of his arms. He had been prescribed anti-depressant medication. While he was expected to recover some form of independent living and mundane employment, his parents were expected to have to move in with him to assist with his daily living.
[4] All of the respondents were detained and questioned by the police. The first respondent made no comment. The second respondent admitted chasing the complainer, who he claimed was trying to get a knife, and kicking his head once or twice. He named the others involved in the assault and expressed remorse, stating it had gone too far. The third respondent admitted chasing the complainer and kicking him on the head and body.
The appellant's submissions
[5] The Advocate depute submitted that the sentencing judge had erred by giving insufficient weight to the risk posed by the respondents, the seriousness of the offence, the sustained nature of the attack and the extent of the complainer's injuries. She emphasised the violent nature of the assault and the consequences for the complainer, whose injuries were eloquent of the degree to which the assault was aimed at his head as he lay on the ground. He had suffered severe and lasting damage and could easily have died. The sentences imposed did not reflect the need for retribution and deterrence...
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