HMA v Tony Cartney

At the High Court in Edinburgh today, 25 September 2019, Lord Boyd of Duncansby sentenced Tony Cartney to a Community Payback Order with an offender supervision requirement after the accused pled guilty to the assault to severe injury, permanent disfigurement and danger to life of his wife.

On sentencing, Lord Boyd made the following statement in court:

“Tony Cartney, you are a 49-year-old man who appears before me as a first offender. You have pleaded guilty to the assault to severe injury, permanent disfigurement and danger to life of your wife.

“On 8 September last year you stabbed her once apparently in the course of an argument and while under the influence of alcohol. The wound penetrated the thoracic cavity.

“There was no underlying lung damage but a few millimetres either way and the wound might well have been fatal. Fortunately your wife has made a complete recovery.

“It is clear from everything that I have read that you are genuinely remorseful. You cannot recall the events and find it difficult to understand the reason for your behaviour beyond the fact that you were heavily under the influence of alcohol.

“You have been with your wife for some 25 years and you have a 21-year-old son. There is no history of domestic abuse. On the contrary this is described as being completely out of character.

“You have been in employment for most of your life and I have a reference from your present employers.

“You are described as being calm in nature. You lead your team well. You are punctual, hard-working, reliable, open and honest.

“As I understand it the job has been kept open for you during the period on remand since your conviction. You will however lose the job if you receive a custodial sentence.

“It appears from the social work report and from the report from Dr Isabel Campbell, a consultant forensic psychologist that you have an issue with alcohol abuse. You use alcohol as a coping strategy and there is a pattern of drinking to excess and to the embarrassment of your wife in social company.

“While you were on bail you were referred to Angus Integrated Drug and Alcohol Recovery Service. I have a report from the social worker, Ian Stilwell, who tells me that you have voluntarily attended a total of 25 sessions.

“You have engaged well with the service and are reported to be developing helpful strategies to cope with stress without alcohol. It appears that there were stressors in your life at around the time of this incident.

“I also have both a victim statement and a personal letter which your wife has written to me. From both of these documents it is clear that she wishes to continue with the relationship.

“The enforced separation during the last year when she was prevented by court order from seeing you has been an unhappy and stressful time for her. She describes it as like a bereavement.

“She is clear that she does not want you to go to prison and she describes the adverse effect that such an outcome would have on her.

“She says that although she understands that protection needs to be put in place for victims nobody has thought to ask her what she wanted or what she thought would be in her best interests. She would see such an outcome as a punishment on her.

“I have to consider what weight to give to your wife’s views. Everything that I have seen and heard suggests that these are her genuine and freely held views. There is no suggestion that your wife is a victim of domestic abuse or that she is under any emotional or other pressure to support you.

“Ordinarily there would be no question that you would go to prison for quite a long time. The seriousness of this offence cannot be underestimated. It is perhaps more by luck and good fortune that you are not facing a murder charge.

“Mr Gilmartin has urged me to consider a community disposal. This is not a simple matter.

“While it would be easy to give effect to your wife’s views and impose a non-custodial sentence I have to consider the wider public interest. But before I can pass a sentence of imprisonment I have to be satisfied that there is no other appropriate disposal.

“I am satisfied that you do not pose a threat to the public. So far as punishment is concerned you will have to live with the fact that you caused a very serious injury to the person you love. That will stay with you for the rest of your life.

“Turning to rehabilitation I am satisfied that this may be best achieved in a community setting.

“I take into account however your age, the fact that you are a first offender, your genuine remorse, your good work record and the reference from your employers, your engagement with the alcohol service and the fact that you have pleaded guilty.

“ I am also satisfied that were I to impose a sentence of imprisonment it would have a deleterious effect on your wife and be as much a punishment for her as it is for you. 

“For these reasons I have decided that this is an exceptional case in which it would be appropriate for me to exercise a degree of leniency. In coming to that conclusion I do not minimise the seriousness of the offence.

“I am proposing to impose a Community Payback Order upon you today. The Community Payback Order will require you to undertake a number of requirements that I am going to explain to you.

“You should listen carefully as I will ask you firstly to confirm that you understand the terms of the Order that I am going to impose and secondly, that you are willing to comply with the Order.

“A Community Payback Order is a punishment that requires you to pay back to the community for the offence that you have committed. I am satisfied that the offence is serious enough to warrant my imposition of this Order because the alternative would be a custodial sentence.

“From today’s date you will be subject to a Community Payback Order. The Order which I am imposing will include a requirement to perform an unpaid work or other activity work requirement of 300 hours. That is the maximum that I can impose.

“I do not intend to discount the number of hours for the early plea as I took the fact of the plea into account in determining that I could exercise a degree of leniency in imposing this order.

“This work will be carried out under the instruction of your responsible officer who will be a member of the criminal justice social work department – that is a social worker with whom you must stay in touch. He/she is responsible for allocating you to the work that you will undertake which must be completed under his/her supervision and in a satisfactory manner.

“You must report to this social worker as required. This work must be completed within a period of 12 months from today’s date.

“I have considered whether I should impose an alcohol treatment requirement. I do not intend to do so as it appears that you yourself have engaged voluntarily and satisfactorily with Angus Integrated Drug and Alcohol Recovery Service. While I do not make it a requirement I will expect you to continue to make progress on addressing the alcohol related problems.

“And I shall impose an offender supervision requirement for a period of three years. 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.

“I am also instructing that this Order will be subject to a progress review one year from now on 25 September 2020 at the High Court in Edinburgh. The 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 each progress review. Failure to attend any progress review may mean that a warrant will be issued for your arrest.

“While the Order is in force, you should report any change to your address or your personal circumstances and the times that you work if you are working to your responsible officer.

“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. The court will either issue a warrant for your arrest or you will be cited to come to court.

“If it is proved that you failed to comply without reasonable excuse with the terms of any requirement, the court can fine you, revoke the order and deal with you as if the order had not been imposed, revoke the order and sentence you to imprisonment, vary the order to impose a new requirement or vary, revoke or discharge any requirement imposed by the Order, or impose both a fine and vary the Order.

“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.”