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Cite as: [2005] ScotHC HCJAC_105, [2005] HCJAC 105

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Roberts v. Her Majesty's Advocate [2005] ScotHC HCJAC_105 (04 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Drummond Young

[2005HCJAC105]

Appeal No: XC407/03

OPINION OF THE COURT

delivered by LORD OSBORNE

NOTE OF APPEAL AGAINST SENTENCE

PETER JOHN ROBERTS

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead, N. McKenzie; Robertson & Ross, Paisley

Respondent: Coutts, A.D.; Crown Agent

4 October 2005

[1] The appellant faced an indictment containing two charges. These were in the following terms:

"(1) On an occasion between 1 March 2001 and 31 March 2001, both dates inclusive, the exact date being to the prosecutor unknown, at 110 Sherdale Avenue, Chapelhall, Airdrie, you did assault Brenda Morrison or Roberts, your wife then residing there, now deceased, push her to the floor, pursue her, place your hands around her neck and compress same all to her injury; and

(2) On 1 January 2002 at 110 Sherdale Avenue, Chapelhall, Airdrie you did assault Brenda Morrison or Roberts, your wife, residing there and repeatedly strike her on the body with a knife and did murder her and you did previously evince malice and ill-will towards her."

The jury unanimously found the appellant guilty on charge (1) and found him guilty of culpable homicide on charge (2). A sentence of thirteen years imprisonment was imposed on these charges, which was ordered to run from 3 January 2002, when the appellant was first taken into custody.

[2] The appellant has appealed against that sentence. The original ground of appeal was as follows:

"That the sentence was, in all the circumstances of the case, excessive. The appellant was convicted of an assault and culpable homicide. The deceased was his wife of eleven years. The relationship between the appellant and his wife had deteriorated over a number of years and had reached crisis point in the month before her death. In our about June 2001, the deceased told the appellant that she had met another man and had been at his home alone with him. The appellant was aware of telephone contact between his wife and this man. The deceased denied that anything improper had taken place. The appellant continued to suspect that his wife was having an affair with this man. In December 2001, the deceased told the appellant that it was her intention to leave the family home with the children of the marriage. The appellant was devastated by this news. In this regard, reference is made to an e-mail, Crown Production Number 15, in which the state of mind of the appellant is revealed.

In Crown production Number 9, which is the transcript of the appellant's police interview, the appellant explained that he and his wife had been together for fourteen years and that he was a good father to his young children, that he loved his wife and that he had never been a wife beater or anything like that. He further explained, without contradiction, that from time to time they had a volatile relationship resulting in physical fights and that from time to time she had assaulted him. The evidence of police officers and the brother-in-law of the appellant was to the effect that they both appeared 'to give as good as they got'.

On 1 January 2002, and argument broke out between the appellant and his wife. In the course of that argument the deceased sustained two stab wounds. The appellant summoned the emergency services. He immediately admitted his responsibility for the death of his wife to the police. Police officers spoke to him suffering from clear shock.

The appellant was originally charged with murder. Prior to the commencement of the trial, senior counsel for the appellant offered a plea of guilty to the offence of culpable homicide. Said plea was rejected by the Crown. The appellant was ultimately convicted of the lesser offence of culpable homicide.

As a result of the refusal by the Crown to accept the appellant's plea of guilty to culpable homicide, the appellant was denied the credit which would normally be reflected in the sentence of a person who had tendered pleas of guilty."

[3] An additional ground of appeal was subsequently allowed to be received, which is in the following terms:

"The appellant is likely to have been thyrotoxic at the time he stabbed the deceased. The psychological effects of thyrotoxicosis are most commonly agitation, aggression, restlessness and marital disharmony. In severe cases, there may be paranoid psychosis, schizophrenia and delusional psychosis. It is respectfully submitted that, considering the appellant's previous good character and that it is likely that he was thyrotoxic at the time of the offence, it is likely that the appellant suffered psychological symptoms of thyrotoxicosis. These effects may have caused the appellant to perceive physical acts and matters differently from a normal person, or affected his ability to form a rational judgment as to whether a particular act was right or wrong or decide whether to perform it. Reference is made to the report by Dr McKenna, typed on 17 September 2004. This was not before Lord Dawson at the time of sentence. Had the report been before his Lordship at that time, he may have taken a more lenient view of the appellant's culpability."

[4] The evidence against the appellant is narrated in the report of the trial judge. As regards the incident to which charge (1) related, it is said that, about Easter 2001 an incident involving the appellant and the now-deceased had occurred, after which she had left the appellant. He had tried to strangle her. There had been visible marks on her neck as a result of this assault. The now-deceased had stayed away from the appellant for about a week before going back to live with him. As regards the incident to which charge (2) related, it appeared that the now-deceased had, before the end of 2001, met another man whom she had seen more than once. She had gone to his flat and they had kissed, but nothing more had happened. The appellant had found out about this meeting and had started to check up on the now-deceased in various ways. A lot of arguments occurred between them. The relationship between her and the appellant had quite broken down, although they remained together. In December 2001, the now-deceased was making arrangements to leave the appellant. She was planning to get her own house, where she could live with the children. By 1 January 2002, she had told the appellant that she was leaving him; he was angry at that. He said that he was going to kill himself and had gone down to a nearby park with a bottle of alcohol. The now-deceased had called the police who had found him and brought him back. Subsequently the appellant had said: "If you stop me killing myself, I'm going to kill you."

[5] At about 11.30 p.m. on 1 January 2002 an emergency 999 call was received from the appellant. He said that he had stabbed his wife in the chest. Arrangements were made for police officers to attend at the locus. On the arrival of the police at the locus, the appellant was seen standing outside with a young child. The appellant's clothing was covered in blood. There was blood on his hands. He appeared calm and co-operative. Shortly afterwards he began to hyper-ventilate and became very agitated. Police officers entered the house. There was blood on the hall floor. There was a large area of blood on the livingroom floor. The now-deceased was lying on the floor with her back against the couch. Her head was tilted back. Her skin was grey and her eyes were rolling. Her breathing was laboured and she was unresponsive. There were two wounds to her chest which were both bleeding heavily. Thereafter an ambulance service technician arrived, who found the now-deceased sitting against the couch. He administered such aid as he could and removed her to hospital.

[5] Police officers asked the appellant where the weapon was. He replied: "It's in the kitchen". A search was carried out there as a result of which, in the sink, there was found a knife with a blade about six to eight inches long. Thereafter the appellant was detained and taken to hospital, where he was treated for two cuts to his left hand. En route the appellant shouted: "I killed her. I killed her." In the hospital he said: "I wish she was dead. She had an affair and I found out." When he said that he was very calm.

[6] The deceased having died, a post mortem examination was conducted. The fatal injury was one to the upper right chest. There was another injury to the left side. Both were consistent with being caused by a kitchen knife such as that found by the police. The right side wound was one inch in length and five and a half inches in depth. It has passed between the ribs, through the lung into the heart and into the gullet. The injury to the heart had caused loss of blood, brain damage and death. The track of the wound was horizontal across the chest and inwards. The left side wound was one inch in length and seven inches in depth. It had tracked downwards and slightly backward. It had gone in the front and out at the back. Such wounds would have required the use of a sharp knife and moderate force. They were consistent with a deliberate act of stabbing. Probably the assailant was in front of the victim when they were inflicted. From the nature of the wounds, the pathologist was of the view that the knife was held in a dagger position with the blade protruding from the little finger end of the hand. The pathologist had seen the medical records and photographs of the injury to the appellant's hand. He was of the view that these injuries could have been caused by the same knife at the same time.

[7] When this appeal came before us, counsel for the appellant said that three aspects of the case had to be considered (1) the plea; (2) the appellant's personal circumstances leading up to the offence with which charge 2 was concerned, including the appellant's thyroid condition; and(3) the appropriate range of sentences. Turning to the first of these aspects, counsel for the appellant accepted that the plea of guilty to culpable homicide had not been tendered in court; it was offered in the course of discussions between counsel for the appellant and the Advocate depute. Counsel for the appellant, after some discussion, accepted that section 196 of the Criminal Procedure (Scotland) Act 1995 and the case of Du Plooy &c v H. M. Advocate 2003 S.C.C.R. 640 could not apply to this case, since the plea had not been accepted. However, he emphasised that the fact that the plea had been offered showed a sense of responsibility on the part of the appellant and also remorse and acknowledgement of his guilt. It had to be accepted that the utilitarian value of a plea which was accepted was not present in this case. It was the position that the trial judge had not been told of the offer of the plea. In his report, by way of comment on the grounds of appeal, he had stated that it would have made no difference to his sentence. That revealed an error in his approach, which meant that the matter was now open for review by this court. The correct approach had been explained by the court in H. M. Advocate v Booth 2005 S.C.C.R. 6 in para. 21.

[8] Counsel went on to deal with the second aspect of the case, the personal circumstances of the appellant, including his medical condition. The appellant had been a first offender. There had been serious problems in his marriage with the now-deceased. It was obvious from the appellant's behaviour immediately after the event that there was immediate remorse on his part. Turning to the matter of the appellant's medical condition, it was submitted that there was no dispute that he had suffered from thyrotoxicosis. Counsel went on to refer to the numerous medical and other reports obtained on the appellant's condition. It was evident from the material before the court that this condition could cause heightened aggressive behaviour. That was relevant in the context of the scale of culpability of the appellant, which was plainly relevant to sentencing. In particular, two reports were of particular importance: (1) a report by Dr Kieran McKenna, a consultant physician and endocrinologist, dated 4 April 2005 and (2) a report by John A. Baird, a consultant forensic psychiatrist, dated 24 June 2004. It was contended that the effect of the opinions expressed in these reports was that it was likely that the appellant had been thyrotoxic at the time of the commission of the offence to which charge (2) related. That had the effect of diminishing his culpability.

[9] Counsel proceeded next to consider the appropriate range of sentences available in relation to an offence such as that to which charge (2) related. In that connection he referred to R. B. v H. M. Advocate 2004 S.C.C.R. 443, a case where there had been a conviction for culpable homicide on a charge of murder, in a domestic context. In that case, in para. 13, the court opined that a sentence of twelve years imprisonment was at, or at least about, the top end of the scale for such an offence, when committed in domestic circumstances. In Houghton v H. M. Advocate (16 March 1999,) (unreported) the court refused an appeal, in a similar case, against a sentence of six years imprisonment. It was said that the sentence imposed was at the upper end of the range appropriate for cases of this kind. It was submitted to us that that case was similar to the present one, in that the killing took place in a matrimonial situation; there had been "provocation" in the sense of infidelity; and there had been immediate remorse. In the light of these cases, it was plain that a sentence in the region of eleven years represented the top end of the scale in cases similar to this. Summarising his position, counsel for the appellant submitted that the sentence under appeal was wholly out of line with the decisions relied upon. The court should select a sentence which took the various relevant factors into account.

[10] We propose to deal with the three aspects of the case identified by counsel for the appellant separately. Turning therefore to the significance of the appellant's plea, we have available to us a report by the trial Advocate depute which confirms that, prior to the start of the trial, a plea of culpable homicide had been offered on behalf of the appellant. It had been referred to the Lord Advocate but, on his specific instructions, had not been accepted. While there was some degree of ambivalence in the submissions made to us regarding the significance of that factor, the final position of counsel for the appellant was that the situation was not one to which section 196 of the 1995 Act could apply. With that position we would agree. In our opinion , the reference in section 196(1) to "an offender who has pled guilty to an offence" must be a reference to an offender whose plea of guilty has been accepted by the prosecutor. That appears to us to follow from the language used in the section. Furthermore, the case of Du Plooy &c v H. M. Advocate, in which the effect of section 196 was considered in detail, proceeded upon the basis that that was the case. The utilitarian value following on a plea of guilty considered there plainly would not exist in a context in which the plea had not been accepted. In these circumstances, there can be no question of the provisions of section 196(1A) operating in the context of this case. However, having reached that conclusion, we would agree with the view expressed by the court in H. M. Advocate v Booth in para. 21 that the offering of a plea prior to a trial may have a mitigating effect, in the event that the ultimate conviction is not of a more serious character than the plea offered. As we see it, the reason for that approach is that the tendering of the plea demonstrates a sense of responsibility and remorse on the part of the accused, which are relevant factors in the context of sentencing.

[11] Turning to the second of the aspects of the case addressed by counsel for the appellant, there was available to the court a substantial volume of medical and psychiatric reports relating to the condition of the appellant. In the report of Dr Kieran McKenna, dated 4 April 2005, it is accepted that the appellant had first been diagnosed as having thyrotoxicosis in 1988 and had intermittently received medication for the condition since then. He had been reviewed on 30 April 2001, at which time his thyroid gland remained overactive, as documented by laboratory biochemical testing. However, subsequently the appellant had failed to attend for a follow-up consultation on two occasions. He had been sent no further appointments. The next occasion on which his thyroid hormone level was checked was on 18 January 2002, seventeen days after death of his wife. At that time his thyroid gland was overactive. As regards his state on 1 January 2002, Dr McKenna considered that it was difficult to interpret. Dr McKenna stated in that report that, in his view, it was impossible to know what the appellant's mental state was on 1 January 2002, nor was it possible to be certain that he was thyrotoxic at that time. He considered however that it was very likely that he was thyrotoxic on 1 January 2002. As regards his mental state on that date, the writer of the report was aware of conflicting accounts of his condition. His view was that there was no doubt that thyrotoxicosis could alter the mental state of patients, but the effect on the mental state was very individual dependent. Overall, Dr McKenna concluded that, not having seen the appellant within twelve months of 1 January 2002 it would be inappropriate for him to comment on his mental state on that date. He thought that it was not appropriate for an endocrinologist to comment on the psychological complications of thyrotoxicosis and advised that more appropriate and detailed information should be sought from a forensic psychiatrist with a specific interest in this area.

[12] Mr John A. Baird, consultant forensic psychiatrist, has furnished a report dated 24 June 2004. He had before him the information provided by Dr Kieran McKenna. Mr Baird states that the additional information appeared to confirm that on 1 January 2002 the appellant's thyroid function was abnormal and that he was clinically thyrotoxic. This was a condition treated by physicians rather than psychiatrists. It was an organic condition which was associated with a mental disorder. It was a physician rather than a psychiatrist who had the greatest level of expertise to assist the court on matters such as the possible level of the appellant's thyroxene at the time of the offence and the nature and, even more importantly, the degree of mental abnormality which could be expected to be present.

[13] Having given careful consideration to these two reports and the other reports available of earlier dates on the appellant's condition, while it might be reasonable to conclude that on 1 January 2002 the appellant's thyroid function was abnormal, we are unable to conclude that such a state of affairs had some particular specific effect upon the mental state of the appellant. In the end, Mr Baird was unable or unwilling to express an opinion on that matter. Dr McKenna also was not prepared, for the reasons which he stated, to offer such an opinion. In these circumstances, we consider that the selection of an appropriate sentence must proceed on the basis that it has not been shown that, at the material time, the appellant suffered from mental abnormality attributable to thyrotoxicosis.

[14] Turning to the issue of the appropriate range of sentences in cases where culpable homicide is committed in a domestic context, we have no reason to differ from what was said by Lord Hamilton in R. B. v H. M. Advocate. However, plainly, the circumstances of such offences are infinitely variable and it is therefore difficult to lay down firm guidelines on such a matter.

[15] In the circumstances of this case and in the context of this appeal, certain matters have been put before us for our consideration which were not before the trial judge. In particular, the trial judge knew nothing of the offer of the plea to which we have referred. Furthermore, the medical and psychiatric material which was canvassed before us was not available to him. In that situation, we consider that the issue of an appropriate sentence in the appellant's case is at large before us. As we have already explained, we consider that section 196 of the 1995 Act has no application to the circumstances of this case but, having said that, we consider that the fact of the offer of the plea to culpable homicide demonstrates a sense of responsibility and feelings of remorse on the part of the appellant, which we consider should be taken into account. However, since section 196 has no application, there is no reason to treat those factors any differently from any other mitigating factors and, in particular, there is no reason to accord to them some specific discount from a starting point, as would be done in a case to which section 196 did apply. We also take into account the tragic nature of the present case and, in particular, the immediate remorse shown by the appellant following the fatal assault upon his wife. We have to recognise, however, that the culpable homicide in this case involved the infliction of a very serious stab wound by the appellant. As has been narrated, the fatal wound penetrated the heart of the now-deceased. Taking all of the factors relevant to sentence which have been established into account, we consider that the sentence imposed by the sentencing judge was excessive; a sentence of nine years imprisonment would be appropriate in this case, which will be ordered to run from 3 January 2002.