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The Lord Advocate v. Murray [2004] ScotHC 52 (20 August 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord MacLean

Lord Osborne

Appeal No: XC47/04

OPINION OF THE COURT

delivered by LORD OSBORNE

NOTE OF APPEAL

in terms of Sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995

THE LORD ADVOCATE

Appellant;

against

PAUL FRANCIS MURRAY

Respondent:

_______

Appellant: Murphy Q.C., A.D.; Crown Agent

Respondent: Finnieston, Solicitor Advocate; J. R. Wallace, Solicitors, Glasgow

20 August 2004

The Background
[1] In this matter, the Lord Advocate appeals against a sentence passed on the respondent on his conviction, following a plea of guilty to charges (1) and (3) in the indictment which he faced, under section 108 of the Criminal Procedure (Scotland) Act 1995, upon the ground that the disposal was unduly lenient. Charge (1) was in the following terms:

"On 20 July 2003 at Shettleston Police Office, 1051 Shettleston Road, Glasgow, you did assault John Cunningham, Constable, Strathclyde Police, c/o Shettleston Police Office, Glasgow, then in the execution of his duty and discharge a firearm at him and shoot him on the body to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and did attempt to murder him; you did commit this offence while on bail, having been granted bail on 26 November 2002 at Dumbarton Sheriff Court and on 20 February 2003 at Glasgow Sheriff Court."

Charge (3) in the indictment was in these terms:

"Between 15 July 2003 and 20 July 2003, both dates inclusive, at Shettleston Police Office, 1051 Shettleston Road, Glasgow and Flat 2/1, 124 Pendeen Road, Barlanark, Glasgow, you did have in your possession without the authority of the Secretary of State or Scottish Ministers, a prohibited weapon, namely a double barrelled shotgun, being a firearm which has a length of less than 60 centimetres overall: CONTRARY to the Firearms Act 1968, section 5(1)(aba) as amended by the Firearms (Amendment) Act 1997; you did commit this offence while on bail, having been granted bail on 26 November 2002 at Dumbarton Sheriff Court and on 20 February 2003 at Glasgow Sheriff Court."

[2] Following certain procedure, the sentencing judge, in respect of charge (1) imposed an extended sentence of detention within the meaning of section 210(A) of the Criminal Procedure (Scotland) Act 1995, comprising a custodial term of ten years, three months of which related to the bail aggravation, and an extension period of five years, making an aggregate sentence of fifteen years, to run with effect from 24 July 2003. In respect of charge (3) the court imposed a sentence of detention for a period of five years, three months of which related to the bail aggravation. The period of detention in respect of charge (3) was also ordered to date from 24 July 2003 and thus to run concurrently with the period of detention imposed in respect of charge (1).

[3] The circumstances of the respondent, as disclosed to the sentencing judge, were that he was born on 8 October 1983. At the time of the offences he had been unemployed and living with his mother at 124 Pendeen Road, Glasgow. A schedule of previous convictions had been put before the court, which contained five convictions of a minor nature. None of these involved a crime of violence and in no case had detention been imposed. The respondent had first appeared on petition in connection with the present matter on 24 July 2003, at which time he was committed for further examination and remanded in custody. He appeared again on 31 July 2003, when he was fully committed and judicially examined. He was remanded in custody, no application for bail having been made.

[4] The circumstances of the offences involved were these. The locus of the attempted murder charge was Shettleston Police Office, Glasgow. Public access is obtained to these premises through double doors that lead into a public foyer and a uniform bar area, where members of the public can be attended to at a counter. Behind the counter, a partition separates the counter area from the office area, occupied by police officers on duty. The partition is made up of three windows and a door at one end. The glass in the windows does not allow anyone at the counter to see into the office on the other side. The door gives access to the office area. At the time of the offence described in charge (1), two police officers were on duty, namely a police sergeant and the complainer. They were in the office area.

[5] At about 11.40p.m. on 20 July 2003, the respondent was seen at the entrance of a close that led to flats in Shettleston Road. This was opposite Shettleston Police Office. He was wearing what was described as "camouflage clothing". The respondent then entered the police office and made his way to the foyer area. He was seen by the complainer who asked him if he was "all right". The respondent nodded and then left the police office. At that time the door behind the counter area was open so that someone on the public side of the counter would have had a clear view of the office area where police officers were located. Outside the police office, the respondent was then seen to go to another nearby close. He was there for a very short period of time. He then returned to the foyer area of the police office. The respondent approached the counter to a point directly opposite the open door that led to the office area. At that time, the complainer was sitting on a chair at a desk there. He was more or less in a position directly opposite the open door. The police sergeant was also in that general area. He saw that the respondent was holding a shotgun which he was seen to be loading. The complainer also became aware of this situation and got up from his chair saying, "Oh my God". From a distance of about fifteen feet from him, the respondent then discharged the shotgun, seriously wounding the complainer. The chair on which the complainer had been sitting was also struck by shotgun pellets and damaged. After the shooting, the respondent placed the shotgun onto the counter and left the police office in an unhurried fashion. He was seen to run away along Shettleston Road.

[6] The shotgun itself was a double barrelled over and under twelve bore hammerless shotgun. The barrels had been shortened and the stock removed, resulting in a weapon with an overall length of 50.71 centimetres and a barrel length of 38.27 centimetres. It was not in normal working order and a single pull of the trigger discharged both barrels. Both barrels had been discharged by the respondent on the occasion of the incident, the spent cartridges having been found within the chambers. Following the incident swabs had been taken from the shotgun enabling the police, through DNA profiling, to identify the respondent as a person who had been in contact with the gun. On 23 July 2003, the respondent was seen in a car and in due course arrested that same day.

[7] As a result of the incident, the complainer sustained serious life-threatening injuries. He remained conscious, but was in pain. He was taken to Glasgow Royal Infirmary. The site of the shotgun wound was his right loin area and spread over one side of his back and right side. It was thought that this suggested that he might have been in the process of turning away from the direction of the counter when the shotgun was fired. There were multiple puncture holes in that area. X-rays showed the presence of multiple pellets overlying the right upper abdominal area. A pellet was seen overlying the heart. There was a pellet in the right renal area. The medical staff were concerned about the complainer's right kidney. It was functioning but surrounded by haematoma. Following treatment, the complainer started to improve and, by 24 July 2003, he was able to get up and walk. By 27 July he was taken off the antibiotic treatment he had been receiving. However, he became anaemic and started to deteriorate. On 2 August 2003 an abscess was discovered on the front surface of his right kidney and also on the front of his colon. He was operated upon on 3 August 2003. The right side of his colon was removed, as was the abscess on his kidney. The kidney itself was not damaged. By 13 August 2003 his improvement was such that the medical staff considered that he could be discharged shortly. However, he started to deteriorate again. His wound became septic. A further operation was carried out on 23 August 2003 during which damaged tissue was removed, leaving a gap in muscle in his back. Thereafter the complainer made a sufficient recovery and was discharged home on 16 September 2003. In all, he spent some nine weeks in hospital.

[8] The most up-to-date medical information available to the sentencing judge on the complainer's condition and prognosis was contained in a letter dated 26 November 2003 from a registrar involved in his treatment. At that time, the complainer was still attending hospital for dressings to be applied to the wound in his right side. That wound was expected to heal over a period of a few months. The complainer needed a stick to walk. He had some weakness in his right thigh, radiating up to his right groin and loin. The registrar could not say at that stage whether the complainer would make a complete recovery from these problems. A scan was to be arranged to investigate whether there was any evidence of injury to the lumbar or sacral spine regions. At the date when the sentences were imposed, the Advocate depute had indicated that the complainer might require some further surgery to deal with the fragmentation of pellets in his body. The complainer had been left with scarring from his surgery and some general disfigurement to his right side. The Advocate depute had informed the sentencing judge that the complainer suffered from loose bowel movements and would be inconvenienced by this for the rest of his life. He had been left with approximately two hundred pellets in his body, which had not been removed. The complainer also suffered psychological damage as a consequence of the attack. He had some symptoms of post-traumatic stress syndrome. His sleep was disturbed by nightmares. He was emotionally fragile. He found it difficult to be with other people. His concentration had been affected. As at the time of the offences, the complainer was aged 53. He had served for thirty years as a police officer. The sentencing judge was informed that it was thought unlikely that he would return to work as a police officer, because of the consequences of his injuries.

[9] The solicitor advocate appearing for the respondent before the sentencing judge informed him that he had been unable to obtain any clear explanation for his actions from the respondent. He explained that, until the age of eleven, the respondent had led a normal and uneventful life. At that time, his father had committed suicide by hanging himself. The respondent had witnessed the aftermath of the hanging. That event had had a devastating effect on the respondent's family. His mother became an alcoholic and, by the age of thirteen, the respondent had also been drinking heavily. From then on and up to the time of the offences, the respondent drank heavily on a regular basis. He also took controlled drugs. The sentencing judge was informed by the respondent's solicitor advocate that he had been unable to break free from this cycle of drink and drugs and that " his life was not worth living". It was said that the respondent had found the gun about a week before the commission of the offences, near an old railway yard in the Parkhead area of Glasgow. This was an area popular with drug users. The respondent had found a rucksack containing the gun and two cartridges. He took it home with him and kept it there until the day of the incident. He had been drinking on the day of the shooting.

[10] The sentencing judge was informed that the respondent regretted his actions. Reference was also made to the expressions of remorse and regret recorded in the Social Enquiry Reports and the Forensic Clinical Psychology Report. It was indicated that the respondent realised the gravity of what he had done and accepted that he now had to do something about the kind of life he had been living prior to these offences. Emphasis was also placed on the fact that the respondent had pled guilty to the offences prior to trial.

[11] The sentencing judge has informed us that, prior to sentencing, he had the benefit of a number of reports. The first of these was a Social Enquiry Report, dated 24 November 2003, which disclosed that the respondent's family were known to the Social Work Department prior to the death of the respondent's father, because concerns had been raised with regard to his mother's drinking. That Report indicated that the respondent's educational career had been characterised by his "non-attendance, moderate learning difficulties and disruptive behaviour". The respondent had expressed remorse to the author of that Report for what he had done. However, no real explanation was given for the commission of the offences, the suggestion being that the respondent had little recollection of the events because he was under the influence of alcohol and other substances at the time. The sentencing judge also had a Supplementary Social Enquiry Report, incorporating a risk assessment, dated 16 December 2003, prepared by the same Social Worker as had prepared the first Report. It was indicated in this Report that the respondent had withdrawn from substance abuse while on remand. He had also had time to reflect and come to regret the pain that he had caused to so many. The author of the Report described the respondent as a high risk to society at the present time. His history indicated that he had difficulty in dealing with authority and that a period of supervision on release might be required for a number of reasons, including a proposed return to his mother's household and his past inability to address his substance and alcohol misuse.

[12] The sentencing judge also had available a Psychiatric Report, dated 21 November 2003, prepared by Dr Brian Gillat, a specialist registrar in forensic psychiatry. Dr Gillat had been told by the respondent about his drinking habits since the age of thirteen. Further detail is provided in that Report about the respondent's abuse of controlled drugs. Over a number of years he had used cannabis, had smoked £20 worth of heroin per day and regularly abused benzodiazepines, cocaine and LSD. In relation to the offences, Dr Gillat had been told by the respondent that in the months prior to the offences his alcohol consumption had been increasing, because he felt that life had little to offer him, but that he wanted a way out of his situation. On the day of the shooting he had been drinking and he said that he "just decided I would do it". There was no evidence of psychiatric symptoms and no evidence of depressive disorder.

[13] There was also available to the sentencing judge a Forensic Clinical Psychology Report dated 18 December 2003, prepared by Gary J. D. MacPherson, a consultant forensic clinical psychologist, employed at the State Hospital, Carstairs. That Report discusses the respondent's drinking on the day of the shooting. So far as the shooting itself was concerned, the author stated:

"He remains at a loss to explain his actions and I found no rational explanation for the crime other than the anti-social behaviour of a substance dependent and confused young man existing on the fringes of society and who may harbour negative sentiments towards the Police. I note that he had been detained within Shettleston Police Office on several previous occasions and he may have been directing his frustration over his position in life and lack of opportunity towards the Police. He initially told me that he had no reason to be at the locus before conceding that 'I had been arrested and in the cells there (within Shettleston Police Office) since 13 or 14'."

In relation to clinical risk assessment, Mr MacPherson adopted what he described as a structured clinical approach. In his lengthy Report he set out his findings in detail. Although the respondent had no previous convictions for violence and there was no compelling evidence of any significant violent incidents during childhood or young adulthood, the nature and severity of the shooting itself had to be considered as significant "with respect to the risk of recidivism" (paragraph H1, page 6). In his summary and conclusions he offered the opinion that the respondent "would present a moderate to high risk if he were to be released from prison at this time without further intervention or support ..." (paragraph No. 3). He also expressed the view that the respondent would require to be monitored in the community over the medium term following release.

[14] In his Note of Appeal the appellant sets forth the following grounds of appeal:

"The trial judge erred in failing to have sufficient regard to the following factors:

(1) The offence was a premeditated one;

(2) It was committed using a firearm;

(3) The victim was a police officer acting in the execution of his duty;

(4) The offence was committed in a police station;

(5) There were no mitigating factors nor mitigating explanation with regard to commission of the offence; and

(6) The convicted person presents as a moderate to high risk of further offending.

Submissions
[15] When this matter came before us, the Advocate depute elaborated the appellant's grounds of appeal. He emphasised the premeditated nature of the offence, demonstrated by the way in which it had been committed, which involved two separate visits to the police office, closely related in time. It was to be supposed that the respondent had taken possession of the gun in the close, to which he had gone after his first visit to the police office. The firing of the gun at the complainer was a quite deliberate act. The gravity of the offence of attempted murder was rendered the greater by the fact that a firearm had been used. In addition, it had to be noted that the weapon involved was not simply a firearm but was a prohibited weapon, exemplified by the contents of charge (3). A further aggravating feature of the offence was that it had been committed against a police officer, who was on duty at the material time, being in a vulnerable position at a desk in the office where he worked. There was plainly a need for police officers to be adequately protected by decisions of the courts. The police had to have confidence that court decisions would, so far as possible, achieve that end. Thus a deterrent sentence was necessary in a case of this kind. A further aggravating feature was that the attack on the complainer had occurred within a police station, which was designed to be open to members of the public. Finally, it had to be recognised that the consequences of the assault upon the complainer had been severe, as disclosed in the details given in the Report of the sentencing judge. It was unlikely that the complainer would return to work as a police officer. His life had been very seriously damaged by the experience to which he had been exposed. In short, it was submitted that the aggravating features of the offence, to which charge (1) related, placed it at the very top of the scale for this kind of offence. It would be difficult to conceive of a more grave case of attempted murder.

[16] The Advocate depute went on to submit that there was a lack of mitigating factors in this case. There was no real explanation for the commission of the offence. If it were the case that, prior to its commission, the respondent had been consuming drink and controlled drugs, that did not constitute a mitigating factor. The only significant mitigating factor was the circumstance that the respondent had pled guilty to the two charges concerned.

[17] The Advocate depute went on to refer to the contents of the several reports, which we have mentioned. He submitted that it had to be noted that the respondent had in fact been on probation at the time of the commission of the offences. It was a matter of great concern that the professional opinion was that the respondent presented a moderate to high risk to the public, if he were to be released at the present time. One of the most worrying features of the case, argued the Advocate depute, was that the respondent had appeared to have an animus against the police, which emerged from the clinical psychology report, but there was no rational explanation for the commission of the offences. The Advocate depute did not go so far as to submit that only an indeterminate sentence would have been appropriate in the present case. It might be that a more lengthy determinate sentence would have been appropriate.

[18] The Advocate Depute drew our attention to Bell v H. M. Advocate 1995 S.C.C.R. 244, which set out the general criterion by which it had to be judged whether a sentence was or was not unduly lenient. That criterion was well known. The question was whether the sentence fell within the range of sentences reasonably available to the sentencing judge. He also referred to MacLaren and Hynes v H. M. Advocate 1994 S.C.C.R. 855, a case of attempted murder by shooting, in which a sentence of fifteen years imprisonment had been sustained. The appeal against sentence in that case had been refused because of the grave nature of the offence. It had to be noted that the appellant MacLaren did not personally use the gun involved in the commission of the offence. In that respect, the circumstances of that case were less grave than those of the present; and also for the reason that the various aggravations already referred to were not present. Finally, the Advocate depute referred to Elliot v H. M. Advocate 1996 G.W.D. 31-1854, a case of attempted murder by shooting. Sentences of twenty years imprisonment had been imposed on the three participants, although only one had used the gun involved. The crime in that case had been premeditated, but did not have the aggravating features present here. The researches of the Advocate depute indicated that there was no case identical with the circumstances of the present one. Against this background, the sentencing judge's starting point of twelve years detention, which he had discounted to ten in respect of the plea of guilty, was unduly lenient. Because of the various aggravations of the offence and the high risk presented by the respondent, the sentencing judge should at least have given consideration to the imposition of an indeterminate sentence, with a substantial punishment part. If it were considered that a determinate sentence was appropriate, it should have been in excess of eighteen to twenty years.

[19] Mr Finnieston, appearing for the respondent, observed that the case was unique and bizarre. For that reason it had to be looked at on its own. The sentencing judge had taken into account all of the relevant factors. Accordingly the argument for the Crown was that he had given inadequate weight to some or all of those factors. There was no issue as to the criterion which had to be applied, with a view to deciding whether or not the sentence was unduly lenient. The sentencing judge had given careful consideration to the matter and had recognised the risk to the public presented by the respondent by the imposition of an extended sentence with a substantial extension period. While another judge might have reached a different view, it was submitted that the sentence imposed was not unduly lenient. It could not be said that the sentencing judge had not properly informed himself before selecting a sentence; he had obtained all of the reports which were appropriate. An appropriate consideration in the present case was that the respondent had pled guilty to the offences concerned and that recognition had to be given to that circumstance. In that respect the present case differed from the cases relied upon by the Crown.

Decision
[20] We have come to the conclusion that the sentence imposed by the sentencing judge on charge (1) of the indictment was unduly lenient within the meaning of section 108(2)(b)(i) of the 1995 Act. The crime of attempted murder can only be seen as a very serious one. The various aggravating features present in this case render the crime one of the utmost gravity. Indeed, it would be difficult to conceive of a case of attempted murder more grave than that involved here. Of importance in this context is the undoubted fact that the offence was premeditated. The conduct of the respondent shortly before the shooting demonstrates that fact beyond doubt. On his first visit to the police office he was not in possession of the shotgun, but when he returned a short time later he was. Plainly he must have brought the gun to the vicinity in pursuit of his purpose, then examined the location itself and subsequently retrieved the gun, which he proceeded to use in the manner described. However, perhaps the most serious features of the present case are the circumstances that the firearm, a prohibited weapon, was used to commit the offence against a police officer then performing his duty in a police office. The unlawful use of prohibited weapons must be seen as a matter of the greatest gravity. The use of such weapons against a police officer performing his duties in a police office designed to provide ready access by members of the public to the police service is a matter of extreme gravity. We consider that it is the duty of any court dealing with offences of this character to keep prominently in mind the need to deter others from such quite appalling behaviour. A further factor of great concern, in our view, is the circumstance that no real explanation has been given for the respondent's conduct. It appears that he may have had some general animus against the police at Shettleston Police Office, but there is nothing to suggest that he had any reason to mount an attack upon the complainer involved in this case. His assault upon him must therefore be seen as an utterly callous act, reflecting no normal human concern for the interests of others. Finally, in this connection, we regard the assessment of the risk presented by the respondent as of great importance. That risk is the subject of assessment in the Supplementary Social Enquiry Report, dated 16 December 2003. It is inferred from the attitude of the respondent to authority that he presented a risk to society at this time. Furthermore, the use of the particular risk assessment tool there mentioned indicated that the respondent was a high risk. Concern regarding the risk presented by the respondent is confirmed by the contents of the Forensic Clinical Psychology Report by Mr MacPherson, dated 18 December 2003. He considered that the respondent presented with many risk factors for future violence, including his young age at the first violent incident, his relationship instability, his education and employment problems, the history of alcohol and substance dependence, early maladjustment and his failure to comply with conditions of bail on several occasions. The author of that Report considered that the respondent's level of risk would vary as a function of his situation. He expressed the view that he would present a high level of risk if he found himself in circumstances analogous to the index crime with respect to his dependence on substances and association with anti-social peers.

[21] In all these circumstances we consider that, while the sentencing judge did carefully consider all the relevant factors, his judgment regarding the sentence to be imposed fell outwith the range of sentences reasonably available to him in the particular circumstances of this case.

[22] In the light of our conclusion, we have decided to quash the sentence imposed on charge (1) of the indictment by the sentencing judge and, in its place, to pass a sentence of life imprisonment which will be ordered to run from 24 July 2003, the date on which the respondent was first remanded in custody in connection with this matter.

[23] Having announced our decision to the foregoing effect, we then heard submissions from Mr Finnieston regarding the assessment of an appropriate punishment part in relation to the life sentence. He referred to Ansari v H. M. Advocate 2003 S.C.C.R. 347 and, in particular to the observations of the Lord Justice Clerk at page 356 regarding the approach to be followed in selecting a punishment part where a discretionary life sentence was being imposed. He submitted that the starting point of the process was the selection of a notional determinate sentence, which might have been selected upon the basis that a discretionary life sentence had not been imposed. He submitted that a sentence of eighteen years detention would have been appropriate, in the light of the youth of the respondent and his lack of any serious criminal record. From that figure would require to be deducted a discount to reflect the plea of guilty offered and accepted in this case. An appropriate discount would reduce the figure to one of fifteen years. The next step in the process was to deduct the element reflecting risk to the public, forming part of such a sentence. It was submitted that, in that connection, the sentencing judge had regarded the five year extension period as reflecting the need for the protection of the public from risk. It would be appropriate to use that figure at this stage of the process. If there were done, a figure ten years detention would be reached. The final step in the exercise was to reflect the arrangements for early release of prisoners from detention. Mr Finnieston accepted that it might reasonably be expected that the respondent would require to have served two-thirds of any determinate sentence before release. If that approach were adopted, the figure arrived at as a punishment part would be in the region of six years.

[24] In reaching a conclusion as to the appropriate punishment part in this case, we must follow the approach required by statute and explained by the Lord Justice Clerk at pages 356-358 in Ansari v H. M. Advocate. Following that approach we consider that, had a discretionary life sentence not been imposed in this case, a determinate sentence of not less than twenty years would have been appropriate, in all the circumstances. From that figure would require to be deducted a discount for the plea of guilty which was accepted in this case. In the light of the circumstances and, in particular, the strength of the case against the respondent, which included the availability of DNA evidence derived from the firearm, we consider that a discount of two years would have been appropriate for that purpose. As regards the risk element to the public reflected in that notional sentence our conclusion is that a period of three years might reasonably be seen as reflecting that element. Thus a figure of fifteen years is arrived at. Turning next to the impact of the statutory provisions regarding early release from a determinate sentence, we consider that the respondent might reasonably have been expected to have been released after serving two-thirds of such a sentence. By these means we arrive at a figure of ten years, which we consider to be an appropriate punishment part in this case, prior to the expiry of which the respondent cannot apply to the Parole Board for review of his case.