Scottish High Court of Justiciary Decisons

ANDREA McALLAN v. HER MAJESTY'S ADVOCATE [1999] ScotHC 88 (21st April, 1999)

The appellant stood trial on two charges. The first was a charge of murder which alleged that she had assaulted Claire Gordon at an address in Aberdeen, repeatedly struck her on the head and body with a metal bar or similar instrument, compressed her neck, repeatedly kicked her on the body and so murdered her. She also faced a second charge that on the same date at a nearby address she assaulted Dawn Findlay or Kiloh and repeatedly struck her on the head and body with a metal bar or similar instrument all to her severe injury and her permanent disfigurement. During the course of the trial the Crown deleted the allegation that the appellant had compressed the neck of the deceased. The jury found the appellant guilty of culpable homicide in respect of the first charge, and found her guilty of the second charge subject to deletion of the word "severe".

The appellant appealed against her conviction of culpable homicide and that appeal was eventually refused on 10 March 1999. For the circumstances of this case it is sufficient in general to refer to the opinion of the Court which was delivered in dealing with the appeal against conviction. For present purposes we may say that the background to the two charges appears to have been that a friend of the appellant had allegedly been assaulted by one or other, or both, of the deceased and the complainer the previous day. The appellant had gone, first of all, to the house of the deceased carrying with her a heavy metal bar and also some knives. She admittedly kicked the deceased and the question which was in issue at the trial was whether she had struck the deceased on the neck with the metal bar and so had caused her death. The causation of death was a matter of some complexity since it involved the proposition that it had arisen as a result of a nervous reaction on the part of the deceased to being struck on the neck. In the end of the day the jury were satisfied as to that connection, and in refusing the appeal against conviction this Court was satisfied that the conclusion which they had reached was not an unreasonable one. Having assaulted the deceased and caused her to fall to the ground the appellant apparently kicked her and then proceeded to the house of the complainer. That house was nearby and the assault on the complainer took place about 15-20 minutes after the first one. The appellant explained that she had carried out the second assault since she was on a "high" after having assaulted the deceased.

In presenting the appeal against sentence which was imposed by the trial judge, which was that of seven years' imprisonment, Miss Scott accepted that the two charges were of a serious character involving the use of a weapon in each case. She pointed out, however, that the blow which the deceased had received on the neck could only have been a glancing blow. She also stressed that the two assaults had each taken a short time and had occurred within a relatively short time, one after the other. It was clear from what the appellant said to the police after the incident that she had been distressed by what had allegedly happened to the friend. She had admittedly taken a considerable amount of drink before carrying out the assaults to which the charges related.

In sentencing the appellant the trial judge described her conduct as follows:

He went on to say that in all the circumstances including the record of the appellant and having regard to everything said on her behalf, he was satisfied that only a custodial sentence was appropriate and that it should be a cumulo sentence of seven years' imprisonment.

Miss Scott made two main points in attacking the disposal in this case. First of all she submitted that the trial judge had placed undue emphasis on the past record of the appellant. She had two previous convictions in 1989 and 1991 for assault, but these were summary charges. She was admonished for the first and was put on probation for the second. She also was put on probation in 1993 on a charge which concerned the possession of an offensive weapon. It was clear from the personal history of the appellant that at times she had gone off the rails and this was no doubt the explanation for her previous behaviour. However, she had no record for serious violence.

So far as the personal circumstances of the appellant were concerned, Miss Scott relied on a recently obtained social enquiry report and a psychology report on the appellant. By reference to the first of these she said that the appellant had had an extremely unfortunate and unhappy childhood. Her mother had committed suicide and those who were looking after her did not do so well. She had no proper upbringing and she had been taken into foster care. The birth of a daughter Julie had been a positive factor for her but Julie had been taken into custody in October 1994 and she had been in custody thereafter. The appellant had had constant access to her, there was a strong bond between them, and even in prison she was able to see Julie every three weeks. The personal history of the appellant could be seen in a further light by reason of the fact that she had now made allegations of sexual abuse against her father. This matter had been investigated and reported to the Procurator Fiscal following certain admissions by him. Miss Scott suggested that this could very well explain the fact that, at times, the appellant had gone off the rails. She also reminded us that at the time that when she was sentenced the appellant was pregnant. However, she lost the child that she was then bearing through stillbirth. Life had been extremely difficult in this respect for her while she was in prison.

As far as the custodial position is concerned Miss Scott said that the appellant had been four months in prison prior to her trial and she had been in prison following her trial for some two years and eight months until 27 November 1998 when she was then released pending her appeal against conviction. Thus, in the result, she had served some three years in total. Had she not been released, she would have been due for parole in July 1999.

Miss Scott said that the reports before us demonstrated that the appellant had taken the opportunity to adopt a more positive attitude, to leave her past behind her and to deal with her alcoholic problems. During the period she had also obtained certain certificates which would enable her to obtain employment. Miss Scott stressed that the case had been outstanding for a considerable length of time. The original charges related to events which took place as long ago as 27 October 1994.

In these circumstances Miss Scott invited the Court to consider quashing the sentence of imprisonment and substituting a probation order. She pointed out also that the psychological report on the appellant was in positive terms. It was said that the appellant was at a low risk of re-offending. She suffered continuing depression and anxiety. Miss Scott pointed out that it was plain that the appellant was in continuing need of some form of supervision and that could be given by means of appropriate conditions attached to a probation order.

We have considered carefully the circumstances which have been put before us, and very clearly put before us, by Miss Scott on behalf of the appellant. It is certainly to the credit of the appellant that since these events she has made significant steps to improve her own position and to put her past difficulties behind her. On the other hand, we have to consider offences which were very serious in themselves, although we fully bear in mind that the death of the deceased was a result that could perhaps have hardly been anticipated in the context of what actually happened. We prefer to concentrate on the serious nature of the conduct of the appellant.

Having regard to all the matters put before us we are not satisfied that, even when account is taken of the personal circumstances of the appellant and all that has happened since her trial, there is sufficient reason for disturbing the disposal which was selected by the trial judge in the light of the evidence and the considerations which were before him. We fully appreciate that there is a continuing need for supervision and various forms of assistance for the appellant, but this can be attended to by the prison authorities and, in due course, it can be considered by the parole board in deciding the basis upon which the appellant may obtain parole. We note, in particular, that at the end of the psychologist's report he says that he will be happy to liaise with the prison psychologist to initiate psychological support which the appellant is required to address. These are matters for others and not for this Court. For our purposes we are satisfied there is no ground for interfering with the sentence which was imposed.

The appeal against sentence is accordingly refused.