Scottish High Court of Justiciary Decisons

McIntyre v. Her Majesty's Advocate [2002] ScotHC 320 (08 November 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	C399/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in CONTINUED NOTE OF APPEAL AGAINST SENTENCE by JOSEPH MICHAEL McINTYRE Appellant against HER MAJESTY'S ADVOCATE Respondent _____________

Appellant: Shead; Forbes & Co., Glasgow

Respondent: Hanretty, QC, AD; Crown Agent

 

24 October 2002

1. The appellant appeared at Glasgow High Court on 8 May 2002 along with a co-accused, William Boyes, on an indictment containing seven charges. The appellant was concerned in all of these charges. Boyes was concerned in only three of them. The appellant pled guilty to charge (2), which was a charge of murder, and not guilty to the other charges on the indictment. The co-accused Boyes adhered to his pleas of not guilty. The Crown accepted these pleas.
2. The charge to which the appellant pled guilty was as follows:

"on 2 January 2002 at Flat 29/2, 63 Petershill Drive, Glasgow, you ... did assault Douglas Dunlop, the occupier, and repeatedly strike him on the body with a knife or similar instrument and did murder him."

The temporary judge sentenced the appellant to detention for life, that sentence to run from 7 January 2002, the date of the appellant's first appearance on the charge, and he fixed the punishment part of the sentence at fourteen years. This is an appeal against the length of the punishment part.

3. The locus of the charge was a flat in a multi-storey block. The deceased lived there with his brother. The beginnings of the incident in which the deceased was murdered were in events at the deceased's flat on Hogmanay and New Year's morning. On the evening of 31 December 2001 the deceased and his brother had invited several people to the flat for a Hogmanay party. Among those who went to the flat was Charlene Leggat. She later left the flat. The deceased too left it at some point. At about 3.00 am on 1 January Charlene Leggat returned to the flat with the appellant whom she introduced as her boyfriend. When the deceased returned, he reprimanded her for bringing a stranger back. It appears that Charlene Leggat had previously been the girlfriend of the deceased.
4. At about 8.00 am on I January 2002 when the appellant, Charlene Leggat and a man named Thomas McVey were leaving the block of flats there was an incident involving the appellant and McVey. McVey returned to the deceased's flat and complained of the appellant's conduct to the deceased and to his next door neighbour, Colin Sly. The appellant and Charlene Leggat also returned to the deceased's flat. The deceased made clear to Charlene Leggat that she and the appellant were no longer welcome there.
5. On the occasion libelled, the niece of the appellant, Tracy McVey, had a party in her flat in the same block. The appellant and William Boyes, the former co-accused, went to the party. Later that evening it was noticed that the appellant and Boyes had left. At about 11.55 pm several people in the deceased's flat were watching television, including Colin Sly. They became aware of a noise outside. Sly and the deceased went to the door of the flat. The others became aware that the deceased was being pushed backwards into the living room by the appellant. The deceased said, "It was'nae me". The appellant forced him backwards against a table in a corner of the room. The appellant was facing him holding a machete about a foot long. The appellant stabbed the deceased in the chest. The deceased staggered into the kitchen. The appellant was seen to lean over and wipe the blade of the knife on a pillow from a sofa bed. He was also heard to shout, "You shitbag, you coward, you left it for your brother to take". The deceased died from his injuries shortly thereafter.
6. Counsel for the appellant relied on the fact that the appellant pled guilty to the charge. He asked us to take the view that a plea of guilty, particularly to a murder charge, was a significant factor that the sentencing judge should have taken into account. Counsel invited us to invoke section 196 of the Criminal Procedure (Scotland) Act 1995 and to make allowance for the appellant's plea of guilty in assessing what was the appropriate punishment part. Counsel also pointed out to us that the appellant was aged only 20 at the time of the offence and that he has a fairly minor criminal record consisting of two previous convictions at District Court level. Counsel further submitted that the sentencing judge had placed too much weight on the fact that the death had occurred in the deceased's home. While that was an aggravation, it was not a "serious" aggravation as the sentencing judge had described it.
7. Counsel for the appellant drew to our attention two decisions of this court on the question of the punishment part in cases of this kind. The first is Gary Tomlinson v HM Adv. (unrepd., 9 May 2002) in which a punishment part of fifteen years imposed for what the court described as a savage and brutal murder was reduced to twelve years.
8. The second is William Stewart v HM Adv. (unrepd., 6 September 2002) in which a punishment part of fourteen years was upheld on appeal. That was a case of a violent murder where death was caused by strangulation with a telephone cord. Counsel submitted that it could not be said that this case was worse than Tomlinson. If we were to follow Tomlinson, the punishment part imposed in this case could be seen to be excessive. To the extent that there appeared to be a "tension" between these two decisions, he invited us to consider remitting this case to a larger court so that that tension could be resolved.
9. In our opinion, it is not necessary to refer this case to a larger court. While previous decisions on the length of the punishment part provide the court with useful points of reference, they give at most limited guidance in any particular case. Each case must be decided on its own facts and circumstances. In the case of Stewart (supra) the appellant had several previous convictions for violence and was convicted after trial. In the case of Tomlinson (supra) the appellant was an adult offender and was convicted after trial.
10. In the present case, there are, in our opinion, three significant points. The first is that the appellant was a youth at the time of the offence. The second is that his previous criminal record is minor. The third is that, unlike either of the appellants in the cases referred to, this appellant pled guilty. It is therefore open to us to apply section 196 of the 1995 Act and moderate the sentence on that account. In all the circumstances, we consider that the punishment part imposed by the sentencing judge was excessive. We shall substitute for it a period of twelve years.