SENTENCING STATEMENTS

On passing sentence, Lord Scott said:

“You have pled guilty to 2 serious assaults committed by you on 11 September 2021 and 17 October 2022, roughly 1 and 2 years ago.  The second assault was committed when you were on bail for the first, as well as for another matter.

In both cases, you drove at and struck your victims with a car and caused them to be thrown into the air with the effect that both were injured and their lives were in potential danger.  You struck Mr Oleksiak twice with the car causing him to suffer permanent disfigurement and permanent impairment. Mr Devine’s injuries were severe owing to the fracture of his hip-bone and dislocation of his shoulder.

I have read the two Victim Impact Statements for both men.  Both suffered injury, pain and trauma. Both continue to suffer from the effects of your actions.  Both still need medication for their pain.  Mr Oleksiak had to give up his employment due to the effects of the assault.  Both are now nervous about being away from their own homes.

A supplementary impact statement came in yesterday from Mr Oleksiak which suggests that his condition has worsened.  He has required additional medication and may need surgery on his back.

Before passing sentence, I decided to obtain a Criminal Justice Social Work Report.  This was with a view to deciding if it was necessary to consider imposing an extended sentence to address questions of risk of serious harm to the public.

The report has provided me with information about your background as well as your accounts of what happened.

You told the author of the report that what happened on 11 September 2021 was, in effect, an accident after your victim attacked your car with a shovel.  Your account is at odds with the agreed narrative as regards your actions. It would be preposterous to try to claim that you struck Mr Oleksiak twice by accident on that occasion.  To the extent that you claim this incident was accidental, I ignore your account.  I note from what Mr Scullion said that you accept the agreed narrative and that there may have been some confusion about aspects of the narrative.

In relation to the incident on 17 October 2022, you accept deliberately driving the car at Mr Devine approximately 5 hours after he had punched you, apparently because he jumped out in front of your car at that later point in the day.  You were apparently under the influence of crack cocaine and freely admitted that you made no attempt to stop the car but decided instead to run Mr Devine over.  As acknowledged by Mr Scullion, being under the influence of drugs offers you no excuse or mitigation at all.

Your position seems to be that both offences involved ‘inappropriate impulsive reactions’ by you.  Whether true or not, your behaviour suggests that you are someone who is unable to control himself and therefore poses a risk of serious harm to the public.

The report gives me information about some of the difficulties you faced in childhood, including bullying because of your medical condition.

The author of the report is of the view that you have demonstrated remorse for what you did and insight into the consequences for your victims and others, despite some of what you said suggesting a failure to fully acknowledge the extent of what you did, on the first occasion at least.  You have also shown insight into the role of drugs and, previously, of alcohol, in your offending.

You have several previous convictions including one from 2020 which also involved an assault causing severe injury and permanent disfigurement.  For that, you were sentenced on indictment at the sheriff court to 16 months imprisonment.  The marked escalation in the gravity of your offending in a short period – one offence in or around 2019, one in 2021 and one in 2022 ‑ is such that you are assessed in the CJSWR as presenting a significant risk of violence and life-threatening harm to the public.

In his plea in mitigation, Mr Scullion emphasised your remorse as well as your age and lack of maturity at the time and your plea of guilty.

He gave me additional information about your medical condition and its impact on your life.  I have taken all of this into account.

In conclusion, I have considered all that is said in the Criminal Justice Social Work Report and all that has been carefully said today on your behalf by Mr Scullion.  The main consideration in sentencing is the extreme and violent nature of your conduct on 2 separate occasions in a period of just over a year, following another incident of serious violence for which you had not long been imprisoned and released.  In mitigation, the main considerations are your plea of guilty, your expressions of remorse and your insight and developing maturity.

In relation to your age, the Guideline for the Sentencing of Young People applies to those under 25 at the point of sentence.  You are now 25, having turned 25 on Saturday although I can see the relevance of some aspects of the Guidelines in your case.  You were 23 and 24 years old at the time of these offences and Mr Scullion has explained how you have started to realise the links between your addictions and your offending and have started the process of maturing.

Paragraph 21 of that Guideline states:

‘If a custodial sentence is imposed on a young person, it should be shorter than that which would have been imposed on an older person for the same, or a similar, offence.’

While I do not consider it appropriate to attach any weight to the Guideline in your case, as you are 25 and, in particular, because you repeated this serious behaviour when you were 24 and therefore at the upper end of the relevant age range for the Guideline, some of the issues highlighted in the Guideline are relevant by way of general mitigation.

Having regard to the whole circumstances of the case, in particular the gravity of both charges, only a custodial sentence is appropriate.  It is necessary to punish you and to seek to deter you and others from behaving in this way and in particular to protect the public from you.

Having considered the gravity of the 2 charges, the pattern of your offending and the insights in the CJSWR, I consider that the question of how best to protect the public arises.  I am concerned to ensure that the public is adequately protected against serious harm from you when you are released from prison.

Having reflected carefully on all of the circumstances, in my judgement the normal period of licence would not be enough to protect the public from serious harm from you.  Accordingly I consider that the custodial sentence in your case should be by way of an extended sentence.

In the circumstances, I will impose a cumulo sentence, that is one which deals with both charges together.

Having regard to all the circumstance, the starting point, prior to taking into account your plea of guilty, is a custodial term of 9 years imprisonment.  This period reflects the bail aggravations to which I attribute 6 months of the 9 year period.  I consider that each charge would have merited a custodial term of 6 years but also that the personal mitigation outlined by Mr Scullion and the principle of totality mean that taking a starting point of 12 years would be excessive.

You pled guilty at the preliminary hearing.  I must and will take that into account. I recognise that there was a utilitarian value to your plea ‑ that is primarily that there was a saving of court time ‑ and will therefore reduce the period of 9 years by 25%, giving a final custodial term of 6 years 9 months.

The total sentence to be served is an extended sentence of 10 years with a custodial term of 6 years 9 months and an extension period of 3 years 3 months for the duration of which you will be under licence on conditions fixed by the Scottish Ministers.  If during this extension period you fail to comply with the conditions of your licence it may be revoked by the Scottish Ministers and you may be returned to custody for a further period.

Sentence will date from 1 November 2022 which reflects the full period of remand and your initial 16 day remand.”

8 August 2023