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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Murphy v. Her Majesty's Advocate [2002] ScotHC HCJAC_339 (24 October 2002)
URL: http://www.bailii.org/scot/cases/ScotHC/2002/HCJAC_339.html
Cite as: [2002] ScotHC HCJAC_339, [2002] HCJAC 339, 2002 SCCR 1029, 2002 GWD 38-1254
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JISCBAILII_CASE_CRIME_SCOTLAND
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Lord Justice Clerk Lord Kirkwood Lord Osborne
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C483/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in NOTE OF APPEAL AGAINST SENTENCE by ANTHONY MURPHY Appellant against HER MAJESTY'S ADVOCATE Respondent _____________ |
Appellant: Jackson, QC; Carr & Co.
Respondent: Hanretty, QC; Crown Agent
24 October 2002
[1] The appellant, Anthony Murphy, pled guilty at Glasgow High Court on 6 June 2002 to a charge of culpable homicide in the following terms:"That on 6 July 2001 at Robertson House, 260 Broad Street, Glasgow you did supply to Kevin Wilson, now deceased, and formerly of Room 162, Robertson House, 260 Broad Street, Glasgow, a potentially lethal drug, namely Diamorphine, a Class A controlled drug under the Misuse of Drugs Act 1971 in a lethal quantity and said Kevin Wilson ingested said Diamorphine to the danger of his health and safety and later died as a consequence of ingesting same and you did kill him."
The appellant and the deceased both lived at the locus libelled, which was a hostel for homeless men. Both were habitual drug users. On the occasion libelled the deceased had no heroin to hand. He went to the appellant's room and bought from him a tenner bag of heroin which the appellant gave him from his own personal supply. The deceased thereafter injected some of the heroin. He was found dead the next day. The death was due to heroin intoxication. The deceased had shared the bag with a third person who appears to have suffered no adverse effects. The deceased reacted to the heroin by going into respiratory depression, which caused his death. The appellant was not involved in dealing in the drug. He supplied it to the deceased only to do him a favour. If the deceased had not asked him for it, the appellant would have used the heroin himself.
[2] The sentencing judge says in his report that in a case of this kind it has been recognised that a charge of culpable homicide may properly be brought against the supplier. He remarks that it seems to him that there is no real guidance in previous decisions about the proper level of sentence. He says:"On one view, a case like this, in which the amount of the drug supplied was extremely small, the fatal consequences could be regarded as a misadventure and the accused's guilt as relatively slight. On the other hand, the alternative view is that a person who chooses to supply a dangerous drug which does in fact lead to a death, should be regarded as bearing a substantial responsibility. The sentence which I imposed proceeded upon the assumption that the latter is the correct view."
We do not accept that that is an appropriate way in which to set out the sentencing options that are before the court. In our opinion, the appropriate sentence to be imposed depends in every case on its own facts and circumstances.
[3] When the sentencing judge imposed this sentence, the case of Watt v HMA (unrepd., 3 October 2002) had not yet been decided. That case bears a strong similarity to the present one. In that case the appellant had been asked by the complainer to acquire heroin for him. He had gone to a supplier's house and purchased two bags with money given by the complainer. He and the complainer shared half of that by smoking it. The complainer thereafter injected the rest with disastrous, though not fatal, consequences. In that case the sentencing judge imposed a sentence of twelve months detention in a Young Offenders Institution. He fixed that sentence in the light of the consequences to the complainer. This court quashed the sentence and substituted a probation order with a condition that the appellant should do 150 hours of unpaid work in the community. In our view Watt is, if anything, a fortiori of the present case. We are satisfied that this case arose from a misplaced act of kindness by the appellant to the deceased. [4] We also take into account the fact that, although the appellant has two previous convictions in 1997 and 1998 under the Misuse of Drugs Act 1971, both were for possession of cannabis and both were dealt with at summary level. He has other relatively minor offences of dishonesty which we do not regard as of any particular significance in the circumstances of this case. [5] We also have before us a reference from Rev Anthony Webster of the Lighthouse Project in Glasgow, a charity for homeless men. Mr Webster speaks of the work that the appellant has done for the Project, his efforts to learn new skills and his attempts to give up his drug dependency. He says that the appellant is now taking more care of himself physically and spiritually. This reference is wholly favourable to the appellant. [6] In view of all of these considerations, the sentence imposed was, in our opinion, quite inappropriate in the circumstances. We shall quash the sentence and continue this case for the preparation of probation and community service assessments.