Scottish High Court of Justiciary Decisons

DAVID BARR v. HER MAJESTY'S ADVOCATE [1999] ScotHC 30 (16th February, 1999)

The appellant is David Barr who appeared on an indictment containing two charges of assault to severe injury and to the danger of life. Although in each case the complainer was different, the charges essentially related to the same incident. The sentencing Judge imposed a cumulo sentence of seven years imprisonment in respect of the offences and it is against that sentence that the appellant has appealed.

In presenting the appeal today Mr Brown on behalf of the appellant did not seek to challenge the narrative of the offences as given by the learned sentencing Judge. It is not necessary for us to go through the matter in detail but essentially the position was that the appellant had, shortly before the day in question, gone to live with the female complainer, a Miss McKenzie. On the day in question the appellant and Miss McKenzie had gone to a bar and in due course had fallen into company with a man, Terence McRae, with whom Miss McKenzie had formerly had a relationship. They drank together and in due course went home to the house at 7 McLennan Crescent where she was living with the appellant. It appears that at some point Miss McKenzie explained to the appellant that she did not want to continue her relationship with him and wanted him to leave. More particularly it appears that she indicated that she wanted to resume her relationship with Mr McRae.

The appellant then seized a knife which was lying in the kitchen and proceeded to attack both Mr McRae and Miss McKenzie. In the case of Mr McRae, he stabbed him twice in the stomach and Mr McRae then fell to the ground and received further blows with the knife. As a result of the attack he was found to have sustained a total of eighteen stab wounds. Two of the wounds were in the stomach and were life-threatening. Mr McRae was detained in hospital for some thirteen days and, at the time when the sentencing Judge dealt with the matter, his prognosis was good, although he continued to suffer pain and discomfort.

In addition to attacking Mr McRae, however, the appellant also attacked Miss McKenzie who had burst into the kitchen. That attack too involved the use of the knife. Miss McKenzie herself was unaware that she had been seriously injured in the attack. In fact, however, she received a single stab wound to the left iliac fossa which extended into the peritoneal cavity and, when she was taken to hospital, she had to undergo a laparotomy. She was expected to make a full recovery. In her case also the stab wound had been potentially life-threatening.

On any view, therefore, this was a very serious attack on both the complainers and Mr Brown did not seek to minimise the gravity of the offences. He accepted that a very substantial period of custody was inevitable, but he submitted that in this case the sentence of seven years could properly be regarded as excessive. He pointed out that the appellant was a man who had only two minor previous convictions both relating to the same occasion in October 1997, those being convictions at summary level for breach of the peace for which he had simply been fined. Accordingly we should treat him as, in effect, a first offender. It was also relevant to note that he had been under strain and in particular that the attack had arisen out of circumstances where he had just been told by Miss McKenzie that she wanted him to leave and that she wanted to resume a relationship with Mr McRae. In effect the appellant had lost control of himself.

The question therefore for us is whether, having regard to these factors, it can be said that the sentence was excessive. In considering that matter we note the points made by counsel. We accept that the appellant is genuinely remorseful. We accept too that this was wholly exceptional conduct on his part and that there is nothing in the circumstances to indicate that he would in future be a danger to the public.

Although it must be stressed that offences of this kind are very serious and that often a sentence of seven years would be appropriate, we have come to the conclusion that in this case, having regard to the particular circumstances and especially to the appellant's previous good conduct, we can properly regard the sentence as excessive. We shall therefore allow the appeal, quash the sentence of seven years and substitute a sentence of five years.