HMA v B

At the High Court in Edinburgh today, 3 August 2018, Lady Scott imposed a Community Payback Order with an offender supervision requirement of two-and-a-half years upon a 15-year-old boy who pled guilty to the culpable homicide of Jack Wilson, having decided that there were a number of factors which rendered the circumstances of the case “exceptional”.

On sentencing, Lady Scott made the following statement in court:

“You have pleaded guilty to culpable homicide. The crime of culpable homicide covers a huge variety of conduct and has a very wide range of culpability. 

“At one end of the spectrum it can consist of killing in an attack with a lethal weapon, where the level of culpability falls just short of the wickedness required for murder. At the other end of the spectrum it can consist of killing unintentionally in an act of minimal violence. That is what is involved here.

“The one consistent feature of this crime is the awful consequence of the loss of life. This always renders this crime very serious.

“Your victim was 20 years old and he had his whole life ahead of him. His close knit family are left devastated and are forever bereft. The victim impact statements which I have read this morning detail the profound destructive effect that this has had upon them.

“Whatever sentence I impose cannot – and is not intended to – bear upon or measure the value of the life of the deceased.

“You approached the deceased, in a moment of anger and struck him with a single punch whereupon he fell to the ground. The cause of death here was the deceased’s head hitting the ground when he fell.

“The background to this was your receiving a phone call from your young girlfriend. She was crying and she told you the deceased had kissed her cheek and touched her, and that she had run away but thought the deceased was following her. You met up with your girlfriend and a group of friends.

“You then saw the deceased, obviously under the influence of drink, walking towards you. You then went toward the deceased and punched him once on the head. After he had fallen you also kicked him on the body but this did not result in any injury.

“After you had left and because the deceased had fallen, you returned to the scene with a friend to check on the deceased. When you found him still lying there you arranged for an ambulance to be called. The next day you told your father and he came with you to the police station to make a full confession.

“I am satisfied that you had no intention to cause serious injury and you had no sense of the consequences.

“Having considered all the information before me, I have decided there are a number of factors which render the circumstances here exceptional. These include the following:

“First and foremost you are a child, aged only 15 years old. It is well established in law that a primary consideration for me in deciding upon sentence must be your best interests and to secure your reintegration in to society.

“Further, I have to take account of your immaturity at the time of this offence – our appeal court has approved the observations of Lady Hale in England, which recognise that at your age, you are less able to exercise self-control or comprehend the consequences of your actions (McCormick v HMA [2016] HCJAC 50; R (Smith) v Secretary of State for the Home Department [2006] 1 AC Lady Hale). As such you are less blameworthy than an adult.

“The violence involved was minimal. I am satisfied that your conduct in this incident was out of character. You have no history of offending or involvement in any kind of violence.

“It is clear from all the background information provided that you are generally of good character. For example the criminal justice and social work (CJSW) report is in extremely positive terms, as is the report from the Day Centre.

“I take into account the context of your tragic family circumstances at the time of this offence, namely, your mother’s terminal illness and your daily, high level, involvement in caring for her, after school and in the evenings. You were very close to her.

“Unfortunately she has now passed away. The extreme emotional distress you were under at the time provides some explanation for your acting out of character.

“You have demonstrated profound remorse both immediately after the incident and now. You have accepted full responsibility for your conduct – this is demonstrated in your actions after the assault; you tendered an early plea and it is a factor which is emphasised throughout the CJSW report.

“Finally the CJSW report which has assessed you as presenting a low risk of re-offending has gone further and suggests that in your particular circumstances a custodial sentence may have a negative effect upon you and may increase the risk of your re-offending. This is not in the public interest.

“Accordingly, having regard to all of these factors I have decided imprisonment is not necessary and that justice is best served by imposing a community sentence.

I am proposing to impose a Community Payback Order upon you. The discount for your tendering an early plea is part of the basis for your receiving a community based sentence and therefore I am not going to discount the period of this order. I have however restricted the period of the order to reflect the fact that you are a child.

“The Community Payback Order will impose an offender supervision requirement for a period of two years and six months. During this period you must attend appointments with your responsible officer at the place and times instructed, for the purposes of promoting your rehabilitation and your continuing good behaviour. 

“In addition you must undertake the requirements set out in the management plan in the CJSW report, namely:

 

-          Continue to work with North Lanarkshire’s Social Work Locality and Community Alternatives to increase understanding and comprehension of risk; the impact of your behaviours and consequential thinking;

-          To undertake specific work in relation to anger management

-          Continue to attend the Day Centre with support in linking to further education resources and employment based placements;

-          Attend classes for English and Mathematics with the aim of gaining formal qualifications;

-          Undertake any referral to bereavement counselling to address emotions in relation to bereavement including the understanding and impact of this offence

-          Undertake any assistance to structure leisure time positively; and

-          Follow general advice, guidance and assistance

“Finally, I instruct that this order will be subject to a progress review, before this court every 10 months within the duration of the order. This court will be provided with a written report which will advise on your co-operation with the requirements of the order that I am imposing.

“You must attend court before me for each progress review. Failure to attend any progress review may mean that a warrant will be issued for your arrest.

“If you fail to comply with any of the requirements that are being imposed in this order, you will be reported back to this court and be dealt with for that failure.

“If it is proved that you failed to comply without reasonable excuse with the terms of any requirement, this court can revoke the order and deal with you as if the order had not been imposed – and let me be clear, that may well mean you will receive an order of detention.

“This order is a sentence. If your circumstances change while the order is in force, you or your supervising officer will be entitled to apply to the court to have the order varied, revoked or discharged.”