Scottish High Court of Justiciary Decisons

ANTHONY DUFFY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 17 (10th February, 2000)

The appellant is Anthony Duffy who went to trial at the High Court at Glasgow on an indictment libelling a charge of attempted murder with an alternative charge of conspiring with Robert Miller to set fire to a house at 61 Hawthorn Road, Cumbernauld and to murder four members of the Rankin family, the occupants of the house, and of setting fire to the house to the danger of the lives of the persons in the house. The appellant was acquitted of the charge of attempted murder but convicted of the alternative charge. In respect of that conviction he was sentenced to 12 years imprisonment and he has appealed against that sentence.

The appeal took a somewhat unusual course and the appellant was allowed to lodge an appeal against his conviction which was eventually refused by a Court of Five Judges on 10 December 1999. The appeal against sentence therefore proceeds on the basis that the conviction of the appellant for conspiring with Robert Miller to murder the occupants of the house in question is the appropriate basis for sentence, even though the Crown had previously accepted a plea from Robert Miller which was under deletion of the averment that the conspiracy was to murder the occupants of the house and under deletion of the averment that he, Robert Miller, set fire to the house. The Crown accepted a plea from him in those terms on a separate indictment and used Miller as a witness in the trial of the appellant. The propriety of the terms of the appellant's conviction in these circumstances was explored in the appeal against conviction and the Court held that the conviction was unobjectionable. We should record that Robert Miller was ordered to carry out a period of 200 hours Community Service but it is obvious that the conviction to which that sentence related was very different indeed from the conviction in terms of the jury's verdict against the appellant.

The incident in question occurred in the early hours of the morning and, without going into detail, it appears that the previous day the appellant had gone with a workmate, Gary Robinson, to the area where Stuart Rankin lived, apparently in connection with obtaining cannabis. Robinson had been involved in 1993 in an attack on Stuart Rankin's brother and on this occasion the Rankin brothers set about attacking Robinson. The appellant apparently intervened to stop the fight and he and Robinson were able to get away. Stuart Rankin apologised to the appellant. Later that same evening the appellant and three others, including Robinson and Robert Miller, went to the Rankin house at Hawthorn Road where the appellant bought some cannabis. They then went back to the appellant's flat where three of them proceeded to drink and all of them took cannabis. Robinson left about midnight and, before he did so, it appears that the appellant made some mention of attacking Brian Rankin, but it is not clear how seriously that was intended. By this stage, however, the three remaining members of the party were very heavily affected by drink and they had taken a significant amount of cannabis. In addressing us this morning Mr Hamilton said that the appellant had consumed about 30 small bottles of lager and was extremely drunk. Mr Hamilton also explained that at that period the appellant was an alcoholic. At some point the appellant and Miller began discussing torching the Rankin house, and between 3.00am and 4.00am the appellant who was, as we have said, very drunk left the house with Miller and went to a petrol station where Miller bought petrol and matches which were used to set fire to the house at Hawthorn Road.

The trial judge explains in his report that in sentencing he proceeded on the basis that the jury's verdict indicated that the appellant had conspired with Miller to set fire to the house and that the mens rea behind the conspiracy was either the intent to kill the Rankin family or a state of mind depraved enough to be regardless of the consequences. The plan was put into effect and Mr Hamilton did not dispute that it was to the great danger of the occupants. The petrol was thrown at the outside of the front door and, as the trial judge puts it, it passed through the door - apparently through the letter box. Having done so, the petrol quickly took hold inside the house and spread rapidly upstairs. Stuart Rankin was roused from his sleep and raised the alarm, but even by that time it was not possible for the occupants to get downstairs because of the flames. What happened was that all the members of the family had to jump from an upstairs window on to mattresses which were thrown down to the ground first of all. Happily and fortunately none of the occupants sustained any serious injury. but the trial judge tells us that the house was gutted - razed to the ground, according to one of the witnesses. The trial judge explains that he interpreted the jury's verdict, in the light of his directions, as indicating that the jury could not be satisfied as to which of the two, Miller or the appellant, actually started the fire. Mr Hamilton informed us that the appellant's position is that on account of his drunken state at the time he cannot himself recall who was responsible.

At the time of the sentence the appellant was already serving a sentence of 15 months imprisonment for assault. He had three minor previous convictions but we do not regard them as having any relevance to the present matter. In his report the trial judge describes the actings of the appellant as cowardly and callous and records that during the trial the appellant's counsel described the offence as an outrage. Nor, of course, did Mr Hamilton attempt to minimise the seriousness of the offence. He accepted that it was a serious offence which required the imposition of a lengthy period in custody. He submitted nonetheless that the sentence imposed had been excessive and that it could properly be reduced by this Court while still leaving a sentence which would mark the serious nature of the offence.

In addressing us Mr Hamilton emphasised the appellant's personal circumstances. At the time of the offence he had been a man of 27, at the time of the conviction a man of 29. He had had, as we explained, a serious drink problem leading to alcoholism but he had voluntarily undergone a detoxification programme with the use of Librium and he had done so because he was intending to be married: his fiancee had insisted on his being treated for his drink problem. He and the lady concerned had married but in the light of his sentence they had now divorced. Nonetheless, it would have been appropriate for the trial judge to take into account the fact that the appellant had sought to reform his drinking and in effect to settle down. Mr Hamilton argued that we should proceed on the basis that, by good fortune, no one had been injured in the fire, and even though that was simply by good luck, nonetheless the fact that nobody had been injured, far less killed, was a factor which could properly be taken into account in assessing the gravity of the offence and, hence, the appropriate sentence.

Mr Hamilton also pointed out that this was not a case where the conspiracy had been formed over a long period. As our narrative has shown, it was an agreement entered into in a drunken state during the early hours of the morning and put into effect shortly thereafter. Mr Hamilton suggested that the fact that the appellant had indeed been seriously drunk at the time was a factor which explained the offence and, even though it did not really amount to mitigation, it was nonetheless a factor which we could take into account. Finally, though only very faintly, Mr Hamilton suggested that, having regard to comparative justice, it seemed harsh that the appellant should have received a sentence of 12 years imprisonment whereas Miller had been sentenced to only 200 hours community service. As far as that matter is concerned, however, the conviction in the case of Miller was substantially different and it makes it very difficult, as Mr Hamilton accepted, to draw any direct comparison which would be of assistance in assessing the appropriate sentence for the appellant.

For us the question is whether or not the sentence imposed by the trial judge can properly be regarded as excessive. We have come to the view that, although the sentence is undoubtedly a severe sentence, it is a sentence which can be said properly to reflect the grave nature of the offence of which the appellant was convicted and it is not a sentence which we can regard as excessive in the circumstances. The appeal must accordingly be refused.

LIN