Scottish High Court of Justiciary Decisons

THOMAS JOHN McBREARTY v. HER MAJESTY'S ADVOCATE [1998] ScotHC 23 (17th December, 1998)

The appellant is Alan Ian Sebastian St. John Bosco Burns who pled guilty at the High Court in Aberdeen on 27 March 1997 to a charge of culpable homicide by assaulting Ian Alexander Stewart and punching him on the neck whereby he was severely injured and died later that day at Aberdeen Royal Infirmary. The sentencing judge imposed a sentence of two years imprisonment and it is against this sentence that the appellant has appealed. At the time of the offence the appellant was 37 years of age. He had a number of minor previous convictions incurred when he was a young man but the latest dated from 1984. The sentencing judge disregarded them. He was right to do so and we shall do so too.

In his report the sentencing judge narrates the version of the facts upon which he sentenced the appellant. The appellant and the deceased were both regulars at a

public house in Aberdeen known as Filthy McNastys. Some time before 16 June 1996 there had been an altercation between them - possibly about a rugby match - in the presence of the appellant's wife. This had resulted in some tension, at least on the part of the appellant. On Sunday 16 June the deceased returned early from a golf weekend and went to the home of friends. He was substantially under the influence of alcohol, but appeared in good spirits. He may well have had nothing to drink between then and his death and the blood alcohol level on post mortem examination was 335mg/100ml. The deceased and his friends went to Filthy McNastys. He and one of his friends went to the bar and placed an order. The appellant was at the end of the bar where he had been most of the evening. He made his way over to the deceased. There was a short exchange between them. The appellant told the deceased that this was his chance to apologise. In addressing this court Mr. Jackson explained that the apology which the appellant sought was for the deceased having used bad language in front of his wife. The deceased told him to "fuck off". The appellant repeated his request for an apology and this time the deceased's reply was in stronger terms, "Fuck off, you cunt". At that the appellant punched the deceased. The deceased was in the course of turning away and was struck in the area of the right ear where the base of the skull meets the neck. Others then became involved, apparently to quell the trouble and restrain the appellant, although there was no indication that he intended any further violence. The deceased was standing beside the pillar. His knees seemed to buckle and he fell to the floor. An immediate call was made for an ambulance. Attempts were made to resuscitate the deceased. Further attempts were made at Aberdeen Royal Infirmary. All were in vain. Life was pronounced extinct shortly after his arrival there.

The eye witness evidence suggested that the appellant had used little force in delivering the blow. In particular there was no significant back swing. On the deceased's body there was little external evidence of a blow, but dissection of the neck and head revealed internal bruising. The deceased had died as a result of one of the arteries in that part of the neck (the vertebral artery) being severed. The sentencing judge was told of the opinion of Dr. Cassidy, the Glasgow forensic pathologist, to the effect that little force can cause this type of injury. Although mere jerking back of the neck could be enough, in this case the presence of quite considerable bruising in the soft tissues at the right side of the neck, also apparently implicating the skin below and behind the right ear, led the pathologists who carried out the initial post mortem to conclude that the local blunt trauma occurring in that area had caused the tear in the artery. Pathologists remain uncertain why the vertebral artery can be damaged so easily, but it is thought that general muscle laxity associated with the consumption of too much alcohol can be a contributing factor. It was submitted on behalf of the appellant that this might well have been a factor in the present case.

In mitigation it was said that the deceased had been very drunk, as was shown by the figure quoted above. He had left the golf outing early because of his condition and, when he arrived at his friend's house, he was in his stocking feet. In recent months he had been indulging more and more in alcohol. The appellant had admitted from the outset that he struck the deceased. As soon as the blow was struck, others became involved and the appellant ended up on the floor. That was the end of the matter. This was a classic case of a foolish incident occurring over a minor matter in respect of which the police would probably not have been called but for the horrendous consequences.

The sentencing judge was supplied with a number of favourable testimonials as to the appellant's character. These were from people who knew him and some of whom drank with him. None would have expected the appellant to act in a way which would cause death. There was also a letter from his Building Society. He and his wife had had to give up their home and move to rented accommodation because he had been unable to maintain his employment position. On the day after the incident he had been due to start a new job. He had been in custody until 25 June when he had been released on bail. He had initially been unable to settle to work with this matter hanging over him, but eventually in April 1997 he had been able to start work as a draughtsman with Nessco Telecommunications Solutions. We were shown a letter from Nessco in which they indicated that he had been offered a promoted post as a supervisor and that this post was being kept open for him. There was a favourable Social Enquiry Report. It was submitted that, although his advisers had assured him that he was not going to be indicted for murder, this was not actually confirmed until he was served with the indictment for culpable homicide some eight months after his arrest. The matter had hung over him for all these months.

The judge tells us that, in selecting the sentence of two years, he took all these factors into account. He points out that the cases where death has occurred as a result of damage to the cerebral artery underline "the fact that the risk of causing serious injury or death accompanies any blow aimed at a part of the body which contains sensitive organs, such as the neck or head". Mr. Jackson criticised this passage since he said that the appellant had not aimed the blow at the deceased's neck: the deceased had moved away and the blow had landed on his neck. While we accept that the sentencing judge did not specify that the blow had been aimed at the deceased's neck, we think that the correct approach is to say that the blow was one which was delivered with only a little force and which happened to land on the particular area of the neck, not because it was aimed at that point, but because the deceased moved away.

The sentencing judge observed that the deceased presented no threat and that the appellant approached him. That is undoubtedly correct, as is the point that the resulting loss of life was quite unnecessary. The key to the sentencing judge's approach is to be found in this passage:

The reasoning in this passage is powerful and undoubtedly there will be many cases where, as the sentencing judge indicates, the only appropriate way of marking the seriousness of the offence will be imprisonment. The heart of the argument, however, lies in the judge's assertion that the only appropriate sentence in this case was imprisonment. As Mr. Jackson pointed out, given that the blow was delivered with only a little force and was not deliberately aimed at the deceased's neck, and given that if it had landed elsewhere the event might well have been so minor that the police would not have been called, the approach of the trial judge effectively means that in no case where someone died as a result of a blow to the head or neck could anything but a custodial sentence be appropriate, even where the accused was a first offender. In our view that is too extreme a proposition.

If that is so, then the question which we have to consider is what the appropriate sentence is in the very special circumstances of this particular case. We were told by Mr. Jackson that friends of the deceased who were also friends of the appellant had written to support the appellant and to urge that he should not be imprisoned. His project manager with Nessco had written very strongly in support of him. This is plainly a situation where sending the appellant to prison will, as the sentencing judge accepts, do him no good. Indeed it is plain that it will cause further disaster for both the appellant and his family. That would, of course, be an inevitable consequence if the only proper disposal was one of imprisonment. We have, however, come to the view that, given the particular circumstances of this case, where the blow in question was delivered with little force and the death of the deceased was a horrendous result which could not really have been in the contemplation of anyone who saw the assault, a custodial sentence is not necessary. In reaching that view we also take into account the remorse felt by the appellant and the fact that he had a murder charge hanging over him for eight months.