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RB v. Her Majesty's Advocate [2004] ScotHC 37 (09 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Abernethy

Lord Philip

Appeal No: XC1124/03

OPINION OF LORD HAMILTON

CONTINUED NOTE OF APPEAL AGAINST SENTENCE

R.B.

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent;

_______

Appellant Niven-Smith; Drummond Miller

Respondent: McMillan, A.D.; Crown Agent

9 June 2004

[1] The appellant was indicted to stand trial in the High Court at Forfar on a charge of assaulting and ultimately murdering his infant son. At the trial diet he pled guilty subject to various deletions and also to substitution of the word "kill" for the word "murder". The plea tendered by him and accepted by the Crown was in these terms:

"On various occasions between 10 October 2001 and 15 July 2002, both dates inclusive, at [the family home in Dundee], you did assault [EB], your son, born 28 June 2001, then residing there, seize him by the body, compress his neck, place your hand over his mouth and nose whereby his breathing was restricted and said [EB] was caused unnecessary suffering and injury to his health and was so severely injured on 15 July 2002 that he died at Ninewells Hospital, Dundee and you did kill him".

The sentencing judge, having obtained and considered certain reports, imposed on the appellant a sentence of twelve years imprisonment.

[2] At the time of the child's death the appellant was thirty years of age. He had one minor previous conviction in 1993 for a non-analogous offence. The sentencing judge treated him as being effectively a first offender. While living in England the appellant had formed a relationship with the woman who later gave birth to their child. Sometime before that birth the family came to Dundee, the appellant's original home. The appellant was unemployed and appears to have spent his time in the flat occupied by the family. He had no significant health problems. He did not abuse alcohol but was a regular user of cannabis.

[3] Another couple, Ross Lawson and Catriona Duncan, lived in the same block of flats as the appellant and his partner and became friendly with them. Ross Lawson was in a position to testify that, on at least two occasions when he was with the appellant and the child, the child cried and the appellant placed his hand over his mouth and nose in order to stop him from crying. The child then became limp and stopped crying. On one occasion the appellant rapidly moved his hand to and from the child's nose and mouth. This caused him to pass out and stop crying. Lawson appears to have told no one about what he had witnessed except, we were informed, his partner Catriona Duncan. Neither took any steps to alert the child's mother or anyone else to this behaviour.

[4] On the morning of 15 July 2002 the appellant and his partner were in bed. The appellant had used cannabis the night before and was no doubt still under the effect of it. At about 6.00 a.m. his partner got up because the child had been crying. She took him into the livingroom, changed his nappy, took him back into the bedroom and placed him on the bed beside herself and the appellant, who was then awake. At about 6.30 a.m. she got up again and went to do some housework. At about 8.30 a.m. she heard the child crying; then after a short time the crying stopped. At about 11.00 a.m. the appellant called her into the bedroom. She found him on the floor attempting mouth to mouth resuscitation of the child. The appellant said that the child was not breathing and asked her to call an ambulance. She made a 999 call. While she did this the appellant brought the child into the livingroom and continued his attempts at resuscitation. These and subsequent attempts at resuscitation were unsuccessful and at 11.45 a.m. at Ninewells Hospital life was pronounced extinct.

[5] Following these events, witnesses, in particular Ross Lawson, came forward and gave information. The appellant was detained and interviewed. Initially he claimed not to know what had happened and that he had no recollection of events after the child was placed on the bed. He admitted that he had a problem with his temper and said that when he lost it he suffered memory blanks. He was interviewed again that evening and was asked about what Ross Lawson said he had seen. He said that he knew the likely consequences of his actions. Asked how many times he had done it, he said he did not know, five times. He indicated that he would place his hand over the child's mouth for about twenty or thirty seconds. Asked about the events of that morning, he said that the child had been screaming a lot, both before and after being put on the bed. Some time after 6.00 a.m. he put his hand over the child's mouth. The child stopped kicking. The appellant cuddled him. He saw that the child was pale. The appellant went back to sleep. He awoke and found the child pale and not moving. Asked if he believed if he was responsible for the child's death, he agreed.

[6] A post mortem examination was carried out on the child's body. The cause of death was given as mechanical asphyxia and imposed airways obstruction. The findings were consistent with the appellant's account of putting his hand over the child's nose and mouth and restricting his breathing but also indicated that the child had been seized by the throat. This latter aspect had not been disclosed by the appellant in his account to the police. The pathological findings also disclosed evidence of at least one prior episode of non-fatal asphyxia.

[7] Before sentencing the judge obtained a full social enquiry report and a report from a consultant forensic clinical psychologist. To the author of the former document the appellant admitted that he realised that what he had been doing in placing his hand over the child's mouth was not good practice and that he felt guilty but seemed unable to cease this behaviour. To the consultant forensic clinical psychologist (who prepared a full and helpful report) the appellant stated that, when the child slept, he slept well but when he began crying "his temper was quite high". The appellant told her that he had put his hand over the child's mouth when he was crying "a handful of times" and, although he did worry about harming him, the child did quieten successfully. He told her that he had no idea what made him do this because he felt fine and had been sleeping well. He also told her that he had no intention of harming the child but had just wanted to quieten him and, when he cuddled and cosied him and the usual techniques did not work, he put his hand over his mouth. Insofar as concerned the fatal incident, he told the psychologist that he was drowsy, though aware of his partner having got up early in the morning. He was wakened by the child crying and tried to comfort him but said "he wouldn't have it" and screamed and that was when he had put his hand over his mouth and held him until he quietened. He told her that he did not really know what he was feeling at the time. The psychologist carried out a full psychological assessment on the appellant to attempt to establish his risk of violent re-offending in the future and to offer suggestions as to how any such risk might be managed. Having fully considered these matters, she came to the view that the likelihood of his being a danger to the community in the future was low.

[8] Before receiving these reports the sentencing judge had indicated that one of the options he would have to consider was the imposition of a discretionary life sentence. However, having considered the psychologist's report and certain cases cited to him, he was dissuaded from imposing either a discretionary life sentence or an extended sentence. In his report to us he says:-

"This did, however, appear to me to be a particularly serious case of culpable homicide. In sentencing the appellant I told him that I thought he was lucky the Crown had accepted his plea rather than proceeding to trial on the original charge of murder. On any view it fell little short of being wickedly reckless to asphyxiate a child into unconsciousness in order to stop him from crying. I said that it defied comprehension that a sane person, as I must take him to be, should think it appropriate to treat a baby in this way. In so far as account required to be taken of the fact that the appellant to a large extent admitted responsibility from an early stage, had pled guilty and expressed no doubt genuine remorse, this was already reflected in the acceptance of his plea of guilty of culpable homicide. I therefore imposed a sentence which was intended to be at the top end of the scale for that offence."

[9] In response to the written grounds of appeal (which suggested that he had expressed "disbelief" that the Crown had accepted a plea of guilty to the reduced crime of culpable homicide) the sentencing judge advises us that he did not express any such disbelief but "did say, on the basis of the agreed narrative, I thought that the appellant was lucky". He continues:

"I remain of the view that such mitigating features as were present were reflected in the acceptance of the plea. The effect of this was a significant reduction in the minimum period which the appellant will require to serve in custody before he becomes eligible for release on parole. In the whole circumstances, I attached very little weight to the fact that witnesses had not been required to give evidence. As it happens, in any event, I understand that [the appellant's partner, the child's mother] was supportive of the appellant."

[10] This appeal was first heard before two judges who were unable to agree on its disposal. It was accordingly reheard before a bench of three.

[11] Mr Niven-Smith for the appellant concentrated primarily upon a contention that the sentencing judge had not attached due significance to the fact that the appellant had pled guilty to the reduced charge of culpable homicide. He had, it was submitted, wrongly regarded that and related factors as already reflected in the appellant's plea of guilty to the reduced charge. The tendering of the plea, which was consistent with the appellant's recognition from the outset of his responsibility for his child's death and his remorse for his conduct, had also had important consequences not only in avoiding the inconvenience of a potentially lengthy trial but also in avoiding distress to specific potential witnesses. These included the child's mother, the appellant's mother and Ross Lawson and Catriona Duncan. Reference was made to Du Plooy v H.M. Advocate 2003 S.C.C.R. 640, especially at paras. [11], [15], [16] and [18]. The decision in that case, although issued a few days prior to the adjourned diet in the present case, had not been brought to the sentencing judge's attention. Mr Niven-Smith also referred to H.M. Advocate v M. 2003 S.C.C.R. 499.

[12] In my view the judge's report does disclose an error of approach to sentencing in this case. The Crown's acceptance of a plea to the reduced crime had the effect that the character of the appellant's conduct which had resulted in the child's death was to be regarded as culpable but not murderous. The appellant's preparedness to tender that plea, with the related matters of remorse and avoidance of unnecessary distress to witnesses, was, in my view, a distinct matter which fell, so far as material, to be taken into account in mitigation of such punishment as would have been appropriate had no such plea been tendered. Were it otherwise, a person who had throughout denied any criminal responsibility for a death but who was, after trial, convicted of culpable homicide would fall to be treated in the same way as a person who had pled guilty at the outset. Such treatment would, in my view, be inconsistent with section 196(1) of the Criminal Procedure (Scotland) Act 1995, as interpreted in Du Plooy v H.M. Advocate. To treat such mitigating features as were present as "reflected in acceptance of the plea" was, in my view, unsound. The effect of acceptance of the plea of guilty to culpable homicide was no doubt "a significant reduction in the minimum period the appellant will require to serve in custody before he becomes eligible for release on parole" - had he been convicted of murder; but that is because his crime has been accepted as having been culpable homicide and not murder.

[13] The sentence of twelve years imprisonment imposed by the sentencing judge was "intended to be at the top end of the scale for that offence". Although there is no statutory maximum on conviction for culpable homicide, I agree with the sentencing judge that, in accordance with current sentencing practice, twelve years is at (or at least about) the top end of the scale for that offence, at least when committed in domestic circumstances. But as, for the reasons given above, the sentencing judge has, in my view, failed to take into account appropriately mitigating factors distinct from the offence itself, the sentence imposed falls to be considered anew. As regards any "base" figure, I accept that this was a very serious offence for which, leaving aside for the present the guilty plea and associated factors, a sentence of about twelve years was within the range of sentence available to the sentencing judge. However, the decision of the Appeal Court in H.M. Advocate v M. gives me some pause. There, on an appeal by the Crown, the court substituted a sentence of ten years for one of seven years imposed at first instance. The respondent in that case was convicted after trial of a protracted course of criminal conduct towards his infant children, resulting in the culpable homicide of two of them and involving assault on a third to the danger of his life on two occasions. The general nature of the criminal conduct (interference with the breathing mechanisms of the children) was not dissimilar to that perpetrated by the present appellant, although in the former case there does not appear to have been any seizure by the throat. In each case the person convicted was, or was treated as, a first offender. In the case of M. the court took into account, apparently in reduction of sentence, the considerable period (apparently more than six years) between the death of the second child and the respondent's trial. No such delay occurred in this case. In the case of M the court was also conscious that the sentencing judge had had the benefit of hearing the evidence at the trial.

[14] In the whole circumstances the "base" figure which I would favour in the present case is one of about eleven years. However, this is, in my view, a case in which a distinct and material reduction in sentence should be allowed to reflect the guilty plea and related matters. From an early stage the appellant acknowledged that he had been responsible for the death of his child. Although his admission at that stage may not have been to the full extent of his physical mistreatment of the child, at no stage, we were told, did he depart from his acknowledgement of that responsibility. The expert advice sought prior to the plea being formally tendered was obtained with a view to finding support not for any total denial of guilt but for the quality of his acts being other than murderous. There had been negotiations between the defence and the Crown, these being finally resolved about a week before the trial diet; part of the delay in reaching that resolution had been occasioned by the need for the Advocate depute to consult with an expert pathologist and to seek and obtain authority from a Law Officer to accept a reduced plea. Although witnesses were cited for the trial, they were countermanded. As a result, apart from the general convenience that witnesses, including professional witnesses, did not require to attend court, the mother of the child, who on the morning of the death had left him in the appellant's immediate care, was spared the ordeal of giving evidence in a contested trial. I do not regard the circumstance that this witness was "supportive of the appellant" (in the sense that she continued in her relationship with him and accepted that his conduct was less than murderous) as diminishing the distress which she would have undergone as a witness in a contested trial. Likewise, the avoidance of unnecessary distress to the child's grandmother (the appellant's mother), who had been much involved in the child's care, and to the couple's friends who had failed to do anything about the appellant's earlier observed mistreatment of the child (and who may accordingly have been remorseful for their inaction) is, in my view, a material consideration. In Du Plooy v H.M. Advocate (particularly at para. [11], as read with para. [16]) the especial significance was recognised of a plea of guilty in a homicide case which spares the victim's family and friends the additional distress of having to give evidence. When these practical considerations are combined with the related matter of the appellant's remorse (which the sentencing judge acknowledged as genuine) and his earlier and consistent recognition of his responsibility for the death, a situation emerges which, in my view, merits a discount of some two years (a little less than 20% of what the sentence might otherwise have been).

[15] I move your Lordships to quash the sentence imposed and to substitute for it a sentence of nine years imprisonment to run (as did the original sentence) from 7 October 2003, the date when the appellant was first remanded in custody.

RB v. Her Majesty's Advocate [2004] ScotHC 37 (09 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Abernethy

Lord Philip

Appeal No: XC1124/03

OPINION OF LORD ABERNETHY

CONTINUED NOTE OF APPEAL AGAINST SENTENCE

R.B.

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent;

_______

Appellant Niven-Smith; Drummond Miller

Respondent: McMillan, A.D.; Crown Agent

9 June 2004

[16] I am in full agreement with the Opinion of your Lordship in the chair.

[17] I have also had the advantage of reading in draft the Opinion of Lord Philip. As the Lord Justice General said in delivering the Opinion of the Court in Du Plooy v. H.M. Advocate 2003 S.C.C.R. 640, at para. [7], it is not in doubt that whatever allowance, if any, should be made in respect of a plea of guilty is a matter for the discretion of the sentencer. I therefore agree with Lord Philip that where the sentencer considers the question and gives cogent reasons for declining to apply a discount, careful consideration should be given before the exercise of his discretion is interfered with. The difficulty in the present case, however, is that the sentencing judge's approach in this case is in my opinion unsound for the reasons given by your Lordship in the chair. It is no doubt true on occasion that a sentencing judge considers, as the sentencing judge did here, that an accused person has been lucky to have had a plea of guilty to a lesser offence than that charged accepted by the Crown. In that situation, however, it is not in my opinion appropriate for the sentencing judge to discount a distinct mitigating factor of the kind in issue here on the ground that it is already reflected in the acceptance of the plea of guilty to the lesser offence.

[18] Once a sentencing judge's approach has been identified as unsound, the matter of sentence becomes one at large for the appellate court. It is then the duty of that court to select what it considers to be an appropriate sentence in all the circumstances. That is not an exercise which can be regarded as an interference with the sentencing judge's discretion.

[19] I agree with the sentencing judge and with your Lordships that this was a particularly serious case of culpable homicide. Having regard to all the circumstances, however, including an appropriate discount for the appellant's plea of guilty, I agree that the appropriate sentence is one of 9 years imprisonment. I therefore agree with the order proposed by your Lordship in the chair.

RB v. Her Majesty's Advocate [2004] ScotHC 37 (09 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Abernethy

Lord Philip

Appeal No: XC1124/03

OPINION OF LORD PHILIP

CONTINUED NOTE OF APPEAL AGAINST SENTENCE

R.B.

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent;

_______

Appellant Niven-Smith; Drummond Miller

Respondent: McMillan, A.D.; Crown Agent

9 June 2004

[20] I gratefully adopt your Lordship in the chair's narrative of the circumstances of the crime, the history of the case and the submissions of counsel. I regret, however, that I am unable to concur in your Lordship's motion to quash the sentence imposed and to substitute for it a sentence of 9 years imprisonment.

[21] In order to explain the reasons for my disagreement I begin by setting out the provisions of section 196(1) of the Criminal Procedure (Scotland) Act 1995:

"196.-(1) In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court may take into account -

(a) the stage in the proceedings for the offence at which the offender

indicated his intention to plead guilty, and

(b) the circumstances in which that indication was given."

I quote the section in order to highlight the permissive, rather than mandatory, nature of its provisions. In the Opinion of the Court in Du Plooy and others v H.M. Advocate 2003 S.C.C.R. 640 reference was made to an observation of the Minister of State during the discussion in the First Scottish Standing Committee on the clause which became section 33 of the Criminal Justice (Scotland) Act 1995, from which section 196 is derived. The observation was to the effect that the clause was not intended to introduce a formal or rigid system of sentence discounting. The purpose of section 33 was to remove the prohibition on discounting imposed by Strawhorn v. McLeod, 1987 S.C.C.R. 413. The making of an allowance in respect of a plea of guilty in any given case remains a matter for the discretion of the Court. See Du Plooy at paragraph [7].

[22] I acknowledge that for the provisions of section 196 to operate effectively there is a need for accused persons and their advisers to have some general indication that an allowance may well be made for an early plea of guilty and of the likely extent of that allowance. But for that requirement to be fulfilled I do not consider it necessary or appropriate that the discretion of the sentencer should be impinged upon to the extent rendering a discount in respect of an early plea of guilty virtually automatic. Where the sentencer considers the question and gives cogent reasons for declining to apply a discount, careful consideration should be given before the exercise of his discretion is interfered with.

[23] The circumstances of the present case were that the child died as a result of the appellant placing his hand over his nose and mouth and seizing him by the throat. The evidence indicated that the appellant had, on previous occasions, acted in a similar manner in order to silence the child when he cried. On some of these previous occasions it appears that the child lost consciousness.

[24] The sentencing judge, expressing an understandable reaction to the appellant's conduct, found it difficult to comprehend how a parent could treat a child in that way. He considered this to be a particularly serious case of culpable homicide and regarded the appellant as fortunate to have had his plea to that crime accepted by the Crown. He sentenced him to 12 years imprisonment.

[25] The principal criticism of the sentencing judge's disposal was that he failed to attach due significance to the fact that the appellant had pled guilty. In relation to that matter the sentencing judge said this:

"In so far as account required to be taken of the fact that the appellant to a large extent admitted responsibility from an early stage, had pled guilty and expressed no doubt genuine remorse, this was already reflected in the acceptance of his plea of guilty of culpable homicide. I therefore imposed a sentence which was intended to be at the top of the scale for that offence ...

I remain of the view that such mitigating features as were present were reflected in the acceptance of the plea. The effect of this was a significant reduction in the minimum period which the appellant will require to serve in custody before he becomes eligible for release on parole."

[26] It is clear that the sentencing judge was alive to the provisions of section 196 and considered whether he should take into account the plea of guilty. He decided not to and explained his reason for doing so. The question is therefore whether he erred in the exercise of his discretion in refraining from making an allowance. The decision in the case of Du Plooy, which was issued a few days before the judge imposed sentence, was not brought to his attention.

[27] In Du Plooy the proposition that the seriousness of a crime could eliminate an allowance for a plea of guilty which might otherwise be appropriate was mentioned and reservations were expressed about it, but, as I understand it, the court stopped short of imposing a prohibition. In considering these questions I think it is important to recognise that sentencing is not a precise science. Spigelman C.J. in the New South Wales Court of Appeal in R v Thomson; R v Houlton (2000) 49 N.S.W.L.R. 383, cited in Du Plooy, said this:

"This Court has always recognised that the purposes of punishment include a wide range of incommensurable, and sometimes conflicting , objectives -deterrence, retribution, rehabilitation, and public condemnation - which must be brought together by a sentencing judge in what the Full Court of the Supreme Court of Victoria has aptly described as an 'instinctive synthesis' ...

The inapplicability of any formulaic approach to the exercise of a sentencing discretion has frequently been emphasised. For example, McHugh, Hayne and Callinan J.J. said in Pearse v The Queen ...

'Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision.'"

I find myself in agreement with this analysis of the sentencing process. In declining to make an allowance in respect of the plea of guilty in this case the sentencing judge took the view, instinctively, I venture to suggest, that the benefit to the appellant from the acceptance of his plea to the lesser charge of culpable homicide was so significant that it eliminated the justification for a further allowance. I consider that that was an entirely understandable and legitimate course to take in the circumstances of this case. I see no reason why a sentencer should not be entitled, in the exercise of his discretion, to refrain from making an allowance for a plea of guilty if he considers that the plea has brought the accused significant benefits in other ways.

[28] In my view the sentence of 12 years imprisonment was within the range commensurate with the grave nature of this crime. It cannot be regarded as excessive. Reference was made by counsel to the case of H.M. Advoate v. M. 2003 S.C.C.R. 499 in which the respondent was found guilty of charges of culpable homicide of two of his own children and the assault of a third. Following a Crown appeal, the court substituted a sentence of 10 years for one of 7 years imposed by the sentencing judge. No other cases were cited to us. I think it has been recognised that, when guidance is sought on appropriate levels of sentence, there may be a limit to the assistance to be gained from a single previous case.

[29] For all these reasons I would refuse the appeal