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Her Majestys Advocate v. Gilmour [2004] ScotHC 1 (06 January 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Cameron of Lochbroom

Appeal No: XC942/03

OPINION OF THE LORD JUSTICE CLERK

APPEAL

HER MAJESTY'S ADVOCATE

Appellant;

against

JOHN GILMOUR

Respondent:

_______

Appellant: Anthony QC, AD; Crown Agent

Respondent: Jackson QC; Ness Gallagher, Motherwell

6 January 2004

[1] I regret that I differ from your Lordships. The respondent did not set off for the meeting with the purpose of committing this crime. The crime was therefore not premeditated in that sense. But the respondent had formed the intention of using the knife when he returned to the cafeteria to sign the resignation letter. At that stage he concealed his left hand under the table. He had adequate time to reconsider his intended course of action. As the parties agree, he did not commit the offence under provocation as defined in law.

[2] The attack itself was grave. The respondent stabbed an unsuspecting and defenceless victim. He struck the first two blows from behind the complainer's back. The complainer had no opportunity to defend himself or to avoid the blows. The respondent aimed all three blows at vital organs. The injuries to the complainer were serious and, but for prompt and effective medical treatment, would have caused his death.

[3] This court has emphasised that the infliction of serious injury by the use of a weapon will result in a custodial sentence in all but the most exceptional cases (HM Adv v Jamieson, 1996 SCCR 836, at p. 840D). For such a serious crime, this sentence was remarkably lenient. The only question is whether it was unduly so. In my opinion it was.

[4] In my opinion, the sentencing judge should have imprisoned the respondent. The appropriate disposal, in my view, would be to allow the appeal and to continue the case to enable counsel for the respondent, if so advised, to address the court in mitigation. I accept that there are the mitigating circumstances that Lord Osborne has described; but I cannot see how anything short of a sentence of imprisonment can adequately mark the gravity of this assault.

Her Majestys Advocate v. Gilmour [2004] ScotHC 1 (06 January 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Cameron of Lochbroom

Appeal No: XC942/03

OPINION OF LORD OSBORNE

APPEAL

HER MAJESTY'S ADVOCATE

Appellant;

against

JOHN GILMOUR

Respondent:

_______

Appellant: R. Anthony, Q.C., A.D.; Crown Agent

Respondent: W.G. Jackson, Q.C.; Ness, Gallagher & Co., Motherwell

6 January 2004

[5] The respondent in this appeal appeared at the High Court sitting at Glasgow on 12 May 2003, when he tendered a plea of guilty in the following terms to charge (2) in the indictment which he faced:

"(2) on 24 May 2002 at Abington Motorway Services on the M74 Glasgow to Carlisle road at Abington, South Lanarkshire, you did assault Robin Paul Craddock, care of Strathclyde Police, Lanark and strike him repeatedly on the body with a knife to his severe injury, permanent disfigurement and to the danger of his life."

This plea and the respondent's plea of not guilty to charge (1) in the indictment were accepted by the Crown. The sentencing judge was informed that the respondent had no previous convictions; he was aged 41, was then unemployed and lived in Coatbridge with his wife and family. He had first appeared on petition at Lanark Sheriff Court on 31 May 2002, when he was released on bail. He had remained on bail since that date.

[6] The circumstances of the offence, as they were described by the Advocate depute for the sentencing judge, were as follows. The complainer, Robin Paul Craddock, was the owner of a company based in Cheltenham. The respondent had been employed by that company as its Scottish Sales Manager and had worked in that capacity for about seven years. For about a year before May 2002, the complainer had been dissatisfied with the sales personnel working under the respondent's control and had taken management responsibility away from him. Following this, the respondent had appeared to improve his business performance. About two days before the incident on 24 May 2002, the complainer had discovered that about £10,000 worth of stock had been removed from the company's warehouse. A young employee had confessed to having removed this stock, but had alleged that the respondent had also been involved. After receiving this information, the complainer had discussed the matter with his father and had then decided to dismiss the respondent from the company's employment without further ado and, in particular, without any further investigation as to the truth of the allegation made against the respondent. The complainer and two employees of the company accordingly travelled to Scotland on the night of 23 May 2002, with the purpose of dismissing the respondent from his employment and recovering possession of two company cars which had been used by the respondent and his wife. At about 8.15 a.m. on 24 May 2002, the complainer had telephoned the respondent on his mobile telephone when he was at home in Coatbridge. The complainer had told the respondent that he wanted to see him, but would not say why. They had then agreed to meet at the Abington Motorway Services premises in South Lanarkshire at 11 a.m. on that day.

[7] The respondent had arrived at the Abington Motorway Services shortly after the complainer and his two employees. The complainer had then sat down with the respondent at a table in the cafeteria. He had confronted the respondent with the allegation that he had stolen property from the company and had presented him with two letters. One of these stated that the respondent was being dismissed from his employment; the other stated that he was resigning. The complainer had then told the respondent that, if he signed the letter stating that he was resigning from his employment, the police would not be involved, but that, in any event, his employment was at an end. The respondent had then denied any involvement in the theft of the company's goods and had stated to the complainer that he wished to take legal advice. The complainer had not been prepared to allow him to obtain such advice. After a conversation which had lasted about an hour and a half, the respondent went to the lavatory. The Advocate depute had informed the sentencing judge that it appeared that the respondent may have had a knife in the pocket of the jacket which he was wearing, which he used to open up the packaging of materials in the course of his work. When he had gone to the lavatory, it appeared that he might have hung his jacket up and that this knife fell from it. The Advocate depute had suggested to the sentencing judge that it was this event which had given the respondent the idea of assaulting the complainer.

[8] On his return from the lavatory, the respondent had told the complainer that he would sign the letter of resignation. He had done this, and then had gone over to speak to the two employees who had accompanied the complainer. There had then followed a general conversation lasting some 10 to 15 minutes, following which the complainer and the respondent had left the building, followed by the two employees. The sentencing judge was informed that the complainer had been slightly in front of the respondent when he had felt what he thought were two punches to the area of his kidney. The respondent had shouted: "Die, you bastard, die". The complainer had then felt a third blow and had been struck in his abdomen. One of the two other employees had pulled the respondent away and saw that the complainer's shirt was covered in blood. The incident had been witnessed in part by an off-duty police officer, who had seen the respondent lunging with both hands towards the complainer and had heard him shout: "I've done everything for you, you bastard". A knife (Crown label 1) had later been recovered at the site of the assault. It had a wooden handle and a blade some seven inches long.

[9] Following these events, the respondent had left the scene and driven off. During the course of the afternoon of 24 May 2002, he had telephoned a colleague, a Mr. Stewart, and had told him: "I think I've killed Robin - I stabbed him three times. I know I have. I think I've killed him." The police had contacted the respondent on his mobile telephone and had told him that they wished to talk to him. He had declined to say where he was, but had said: "My head is sore. I need time to think. I will come into Hamilton Police Station." On Thursday 30 May 2002, the respondent had attended with a solicitor at Lanark Police Station, where he was interviewed, arrested and charged.

[10] The complainer, Robin Paul Craddock, had been admitted to the Accident and Emergency Department of Wishaw General Hospital at about 2 p.m. on 24 May 2002 and had been found to have suffered one stab wound to the right of his abdomen and two stab wounds in his left loin area between his hip and chest. The abdominal wound was in the sub-costal area, below the bottom rib on the right side of the chest. It was four centimetres in width, went through the abdominal muscle and required stitches. It had not penetrated any major organ. Each of the two wounds to the left loin area were about two centimetres wide and about four inches in depth. Doctors had suspected renal damage, and a CT scan was carried out, which showed two or three lacerations to the left kidney and a large haematoma beside it. These wounds were each described as being very serious and potentially lethal. No invasive surgery had been carried out, but without treatment, the medical opinion was that the complainer would have bled to death. All these wounds would leave scars. The complainer had discharged himself from hospital after six days and had been off work for six weeks, since he was unable to drive.

[11] In the light of the circumstances described to him, the sentencing judge continued the matter to enable a full social enquiry report, including a risk assessment and community service assessment to be obtained. He informs us in his Report that he also wished to see the knife involved in the incident and to be given information as to whether there had been any police investigation into the allegation of theft made against the respondent, and, if so, the results of any criminal proceedings following thereon. The matter came again before him for sentence on 5 August 2003. On that date he had before him five reports, namely a pre-trial social enquiry report, a social enquiry report dated 2 June 2003, a community service assessment dated 28 May 2003, a risk assessment report, obtained by the solicitors acting for the respondent, from Michael Carlin, a psychologist, dated 30 May 2003 and a risk assessment report dated 29 July 2003. The sentencing judge informs us that, in summary, these reports indicated that the respondent had never been involved previously in the criminal justice system and that the serious assault to which he had pled guilty was quite out of character. As a result of this incident, he had received medical treatment for depression for a time, and had attended counselling and psychotherapy. On the day of the incident in question, the respondent had been under stress, because he was then caring for his father, who at that time was suffering from a terminal illness and who had since died. The respondent had a loving and secure family life. He was considered a suitable candidate for community service. He was considered as being a low risk of engaging in violence in the future. He had been able to demonstrate insight into how his victim may have been affected and had displayed genuine remorse and shock at his own actions. His home, family and work situation were described as stable and secure and he had had no addiction problems, nor any other difficulties which might place him at risk of re-offending. He had impressed the senior social worker who had compiled the risk assessment report as taking full responsibility for his actions and had not attempted to justify his behaviour. He had appeared highly motivated to remain law-abiding and again was assessed as being at a low risk of re-offending.

[12] In addition, the following mitigating circumstances were put before the sentencing judge. He was informed that the respondent was a widely respected member of the community, who contributed to society in many important ways. He gave up his time in order to take children on school excursions abroad and, over many years, he had organised holiday breaks in Scotland for children from areas in Northern Ireland most affected by the troubles there. The sentencing judge was furnished with a Report from Dr. Sarah Boyle, dated 10 April 2003, which was stated to be an accurate representation of the respondent's background, recollection of the offence and attitude towards it. The respondent was a hard-working and responsible family man, married for 28 years and with four children and no history of violence, nor any previous convictions. He had always worked hard, and, some six or seven years before the assault, he had been head-hunted to work for the complainer's company. He had eventually become Sales Manager and was given a company car. His wife had subsequently been employed by the company as well and she also had been given a company car. The respondent worked at least 70 hours each week, travelling away from home for much of the time. He had got on well with the complainer and his family. In May 2002, the respondent's father had been diagnosed as suffering from lung cancer. At about the same time the respondent's wife was found to have a lump on her breast, which was diagnosed, but only after the assault, as being benign. On 24 May 2002, the respondent had arranged to take his father to Monklands Hospital for a medical appointment regarding his cancer. Notwithstanding this, having received the complainer's telephone call, the respondent had agreed to meet him at Abington Motorway Services. As soon as he had arrived there, the complainer had accused him of stealing from the company and demanded his resignation. The respondent denied that he had ever stolen anything from the company and had no reason to do so as he was earning between £60,000 and £70,000 per annum. To have done so would have been completely out of character and would have ruined his good reputation. The respondent had been very upset by the complainer's accusations.

[13] The respondent had had in the pocket of his jacket a knife which he had won in a steak-eating competition in South Africa, while on a trip there with the complainer and others and which he was in the habit of using for opening boxes and packaging in the course of his work. It was something which he often had with him and which he used almost every day. When he had gone to the lavatory the knife had fallen out of his jacket to the floor and he had picked it up and put it back in his pocket. Just after the respondent had agreed to sign the letter of resignation he went to speak to the other employees of the company. As he was talking to them, his wife had telephoned him on his mobile telephone to tell him that his father's lung tumour was inoperable and asking him to return home immediately as his father was distressed and asking for him. The respondent had been "shattered" by this. At this time he had had to tell his wife that she would not be able to use her company car to take their daughters to their dance competition on the following day; he had been unable to tell her the reason for this at that time.

[14] Dr. Boyle had concluded that the assault on the complainer had been provoked by the unusual and unexpected stresses which preceded it and that there was no risk that the respondent would repeat this behaviour. The sentencing judge informs us that the Advocate depute gave him no indication that anything contained in Dr. Boyle's report, or indeed anything else that was presented to him in mitigation, was disputed by the Crown.

[15] The sentencing judge was further informed on behalf of the respondent that it could be confirmed that there had been a police investigation into the allegation made by the complainer that the respondent had stolen items from the complainer's company and that charges which had been brought against the respondent were dismissed at Cheltenham Magistrates Court on 9 October 2002. The sentencing judge informs us that he had examined the knife which was used in the incident which he describes as "unexceptional and which was such as might have been used for the opening of packaging materials." He had also been provided with numerous letters commending the respondent's character and the good works which he had done in the community. These included a letter from the respondent's general practitioner dated 29 April 2003, a letter from a retired police officer dated 16 February 2003, a letter from a history teacher at a school in Coatbridge, dated 14 February 2003, a letter from a principal teacher (guidance) with North Lanarkshire Council, dated 21 February 2003, an undated letter from Thomas McLaughlin regarding the respondent's good works in relation to children from Northern Ireland and letters from directors of companies which employed or had had dealings with the respondent, dated 3 February and 16 April 2003. He was also furnished with a letter from Merlyn Industries U.K. Limited, apparently dated 9 June 2003, confirming that the respondent had been employed as Regional Sales Manager with that company on the terms stated therein.

[16] The sentencing judge informs us that he had given the matter of the appropriate sentence for the respondent long and anxious consideration. It was self-evident that the crime which he committed had been a serious crime, involving the use of a knife and three separate stab wounds, which might have had fatal consequences, if the complainer had not received medical treatment. He states that he considered that this was a crime which would require to be visited with a significant custodial sentence in the absence of exceptional circumstances. He explains, however, that he reached the view that there were exceptional circumstances in this case, which would justify the highly unusual result of a non-custodial disposal. The sentencing judge then drew our attention to the following circumstances:

"(a) The respondent had no previous convictions. He was aged 41 when he appeared before me and had no previous contact with the criminal justice system.

(b) While not amounting to provocation in law, I felt able to have some regard to the circumstances surrounding this assault. In particular it appeared to me to be relevant that the respondent was under very considerable pressure at the time, having just learned that his father was suffering from incurable cancer and knowing that his wife had a lump on her breast (at that time not diagnosed as non-malignant). He had devoted many years of his life to working for Mr. Craddock's company, working long, stressful and antisocial hours for the benefit of the business. Without any warning he was faced with an allegation of theft from the company. He was faced with instant dismissal, and was denied legal representation despite requesting it. He was denied any opportunity to rebut the allegation against him - an allegation which was subsequently the subject of criminal proceedings in England which were dismissed by the court.

(c) The assault appears to have been completely unpremeditated - the respondent appears to have 'snapped' as a result of the pressures he was under, and to have used a knife which was in his possession for legitimate reasons. This is of course not to suggest that the assault was in any way justified; however, it appears to have been the result of a momentary loss of control and not as a result of planned, premeditated action on the part of the respondent.

(d) The assault appeared to be quite out of character. The respondent was a notably worthy and useful member of society. As well as holding down a responsible job and raising a family in a happy and secure environment, he gave of his time to help children from local schools and from 'the troubles' in Northern Ireland. He had many glowing character references, from which it was clear that this incident was out of character and that he was suitably remorseful and ashamed about it.

(e) The respondent pled guilty to this charge (as previously amended) thereby avoiding the need for witnesses to attend at a trial.

(f) The various social enquiry reports, risk assessments and psychological reports were each supportive of the respondent. Each indicated that the respondent was at low risk of re-offending, that this incident appeared to have been out of character, and that it was probably caused by the exceptional stresses and pressures to which the respondent was subjected at the time of the assault.

(g) It was confirmed that since this incident the respondent has not been in any further trouble, and that he has now obtained a responsible job. He is given emotional support by his wife, family and friends."

[17] Against the foregoing background, the disposal selected by the sentencing judge was the making of a probation order of three years duration, associated with a condition that the respondent should undertake 240 hours of unpaid work in the community. Against that disposal, the appellant has now appealed, in terms of section 108(1)(d) and (2)(b)(iii) upon the ground that the order was unduly lenient. In support of his appeal, the appellant has tabled a number of grounds of appeal. These are in the following terms:

"1. The trial judge failed to adequately take into account the fact that the

assault was a premeditated attack carried out with the intention of causing the complainer serious injury by someone who had especially armed himself with a knife for the purpose of the assault;

2. The trial judge failed to adequately take into account the degree of

violence used by the accused in stabbing the complainer three times with the knife he had brought with him to their meeting;

3. The trial judge failed to adequately take into account the nature of the

injuries suffered by the victim and the consequences and potential consequences thereof;

4. The trial judge gave undue weight to the personal circumstances of the

respondent and to a risk assessment assessing the respondent as at a low risk of re-offending;

5. In all the circumstances of the assault the trial judge erred in not

appreciating that a period of imprisonment was inevitable."

[18] In supporting the appeal, the Advocate depute drew attention to the injuries which had been inflicted, already described. He accepted that the terms of ground of appeal 1 were inconsistent with the facts placed before the sentencing judge, which had not been disputed by the Crown. That ground of appeal could not be pressed. Further, he conceded that he was unable to say that there could never be a non-custodial sentence for an offence such as the present one. The Advocate depute emphasised four features of the case, which he contended were significant. First the assault was a serious one involving three blows inflicted by the use of a knife. Second, the injuries sustained were of a lift-threatening nature. Third, the respondent had gone to the service station with the weapon used in the assault, although it was accepted that he had not known of the purpose of the meeting until his arrival at it. Fourth, there was nothing in the situation which could be categorised as provocation in law.

[19] In developing his submissions, the Advocate depute turned to the manner in which the words "unduly lenient" had been interpreted by the court. In H.M. Advocate v. Bell 1995 S.C.C.R. 244, it was held that for a sentence to be "unduly lenient" it must fall outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate, weight always being given to the views of the trial judge, especially in a case which had gone to trial where he had had the advantage of seeing and hearing all the evidence. While it was accepted that there were mitigating factors in the present case, having regard to the nature of the assault and the lack of provocation; having regard to the consequences for the complainer and also to the need for a sentence to reflect deterrence and punishment, the view could be reached that the sentencing judge had placed too great weight on the personal circumstances of the respondent. In that connection reference was made to what was said at page 8 of his Report. The Advocate depute sought support for his position from what was said by the Lord Justice General in H.M. Advocate v. Paterson 2000 S.C.C.R. 309 at page 313. Reference was also made to H.M. Advocate v. Jamieson 1996 S.C.C.R. 836.

[20] Senior counsel for the respondent moved the court to refuse the appeal. He submitted that the sentencing judge had made a careful decision, selecting a disposal which was within the range of disposals which he was entitled to make in the circumstances of the case. It was noteworthy that the appeal was founded, in part, on ground 1, which involved a misconception. The circumstances put before the sentencing judge, which were not disputed, indicated that the attack was not premeditated. The facts set before the sentencing judge had been agreed with the Crown before the plea of guilty was tendered. Reference was made to the sentencing judge's Report, in which he had carefully set forth the circumstances which had caused him to take what he recognised was an exceptional course. It was submitted that that approach could not properly be criticised. It was understood that at least some of the hours of unpaid work in the community had been completed, since the Crown had not sought to suspend the operation of the order made by the sentencing judge. That was a matter of some significance, as appeared from H.M. Advocate v. Carnall 1999 S.C.C.R. 904. Although suspension of the order had been formally craved in the present appeal, the court had not actually been asked for suspension of it.

[21] In my opinion, the criterion which requires to be applied to a case such as the present is not in doubt. For a sentence to be "unduly lenient", that sentence must fall outside the range of sentences which the sentencing judge, applying his mind to all the relevant factors, could reasonably have considered appropriate, weight always being given to the views of that judge. It goes without saying that, where severe injury has been caused in an assault involving the use of a weapon, it will be only in the most unusual circumstances that the court will be able properly to refrain from imposing a custodial sentence on the offender. That position was explained in H.M. Advocate v. Jamieson, at page 840. However, from time to time, such exceptional cases do occur, where a non-custodial disposal will not be regarded as unduly lenient. Such a case was H.M. Advocate v. Heron 1998 S.C.C.R. 449. Having regard to the possibility of such a disposal, which was specifically recognised by the Advocate depute in his submissions in this case, it is difficult to understand why the Crown formulated ground of appeal 5 in the terms that they did. No sentence can be said to be "inevitable" save where that sentence is one which is prescribed by law. I therefore see the terms of ground of appeal 5 as inconsistent with the position adopted by the Advocate depute in the present case.