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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Mcmillan [2005] ScotHC HCJAC_119 (04 November 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_119.html
Cite as: [2005] ScotHC HCJAC_119, [2005] HCJAC 119
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Her Majesty's Advocate v. Mcmillan [2005] ScotHC HCJAC_119 (04 November 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Osborne Lord Kingarth
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[2005HCJAC119] Appeal No: XC576/05 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against CAROL McMILLAN Respondent: _______ |
Appellant:
B. McConnachie, Q.C., A.D.; Crown AgentRespondent: I. Duguid, Q.C.; Charles Ferguson, Hamilton
4 November 2005
[1] On 3 May 2005 in the High Court at Glasgow the respondent pled guilty to an amended charge of culpable homicide. On 5 July 2005 the sentencing judge imposed on the respondent a probation order for three years and ordered that she should perform 240 hours of unpaid work in the community. The Lord Advocate has appealed against the sentence on the ground that it was unduly lenient. [2] As regards the circumstances, the sentencing judge was informed that the scene of the offence was a car boot sale at which the deceased and her husband were regular attenders. They were 58 and 68 years of age and had been married for 39 years. On the day in question (which was a Sunday) they drove to the car boot sale as usual and had difficulty finding somewhere to park. The deceased had got out of the car to guide her husband in reversing from a space where they could not remain and, noticing another car leaving, she stood in the space to keep it while her husband manoeuvred the car into position. At that point a car driven by the respondent's partner, in which she was a passenger, arrived. The respondent, who was 39 years of age, got out of the car and put her hands on the bonnet of the car driven by the deceased's husband, to stop him entering the parking space. When the deceased pointed out that she was there first, the respondent grabbed hold of her hair with both hands, pulling her head downwards and pulling her from the roadway to the pavement where she ended up in a position against a fence, bent over and with the respondent still holding her by the hair. The respondent then kicked her in the face three times. The deceased's husband was concerned for his wife, knowing that she had recently attended a doctor with potential heart problems and got out of his car to go to her aid. At that point the husband was assaulted by the respondent's partner and knocked down. Various members of the public told the respondent to leave the deceased alone. The behaviour of the respondent, as described by a number of bystanders, was that she "lost the rag", "lost the plot", "went berserk", "had gone mental", "was out of control" and "her features were contorted with rage". The Advocate depute informed the sentencing judge that the actual physical assault did not last long, but by the time that the husband reached the deceased, her face was purple and there was no pulse. The respondent continued to act in a bizarre manner, at one point sitting on the bonnet of the husband's car to call the police, claiming that she had been assaulted by the husband and his vehicle. An ambulance was summoned for the deceased, but the paramedics found no vital signs. Life was pronounced extinct at the hospital. [3] Post-mortem examination of the deceased revealed bruising to the lower lid of the left eye, extending down the cheek with a small overlying abrasion towards the outer edge consistent with blunt trauma, such as a kick. Over the left cheekbone to the upper lip there were faint fine petechial bruises including a diagonal band stretching from the left nostril to the corner of the mouth. This was also caused by blunt trauma. Internal examination of the scalp revealed a larger area of blotchy bruising 6 cm in diameter at the left parietal region with a smaller area of 1.5 cm in the upper frontal region. This was deep bruising which was most likely to have been caused by vigorous pulling of the hair. Examination also disclosed that the deceased suffered from undiagnosed coronary artery disease, involving a narrowing of the arteries. In these circumstances sudden death could occur if there was a sudden reduction in blood flow or if there was a major increase in demand due to physical or mental stress. In such a case instability of the electrical system of the heart might occur. It is clear that in the present case the stress caused the deceased's condition to become unstable, with an increase in the myocardial demand for blood, an increase in heart rate and blood pressure and resulting in myocardial infarction. Two months before the incident the deceased had consulted her doctor with complaints of shortness of breath and heart racing on exertion. Tests gave normal results but she was given an angina spray and referred to a hospital for further tests which had not been carried out before her death. [4] By the time that the respondent came to be sentenced the sentencing judge had before her a social inquiry report, in which the writer assessed the risk of the respondent's re-offending as very low. According to a report by a consultant psychiatrist, the respondent had developed anxiety and depression, suffering from persistent low mood, insomnia, loss of appetite and poor concentration. Counsel for the respondent informed the judge that, as a result of the condition of the respondent, there had been difficulties in obtaining instructions from her and six consultations had to be abandoned. [5] In her report the sentencing judge states that this was a very unpleasant offence with tragic consequences. The irresponsible and unbridled actions of the respondent had led to the death of an innocent woman. The attack was unprovoked and even without the underlying condition would have resulted in deep bruising and abrasions. She took all this into account, particularly the fact that a blameless woman had lost her life in the incident. She also had to take into account that, however unpleasant to the assault, the respondent was not to know that the deceased suffered from undiagnosed heart condition. The respondent was genuinely remorseful, she was at a very low risk of re-offending and she had to live with the terrible consequences of her actions. Her actions appeared to have been entirely out of character. She had shown responsibility in the past by being in regular and seemingly successful employment. By her plea of guilty she spared the witnesses, especially the deceased's husband, the need to give evidence. She was a first offender, and she was not satisfied that imprisonment was the only appropriate way of dealing with her. [6] In presenting the appeal the Advocate depute submitted that only a custodial sentence could properly have been imposed on the respondent. He accepted that there could be cases of culpable homicide in which, exceptionally, it was appropriate for there to be a non-custodial disposal, for example, where death had been caused by an unfortunate blow, or where the accused had intervened to protect the victim of an assault, or where there had been a history of domestic abuse. However in this case the respondent had carried out a vicious attack on the respondent. It had been utterly unprovoked, and it involved a significant level of violence, including kicking the respondent when she was incapable of defending herself. It was the kind of conduct which might reasonably be thought to involve the risk of serious injury. The sentencing judge had attached insufficient weight to the ferocity and gravity of the respondent's conduct, along with the loss of life which it had caused. [7] The Advocate depute also criticised the sentencing judge for having attached too much significance to the respondent's remorse. It was plain that this matter had weighed heavily with her. The respondent's conduct at the scene after her attack on the respondent showed no regret for her actions. The respondent claimed she had been the victim of an attack, when there was absolutely no evidence to show that she had been assaulted in any way. He pointed out that, when she was interviewed by the police on the day of the incident, she maintained that she had been attacked by the deceased and her husband and had defended herself. At her judicial examination on the following day she stated that the deceased had grabbed her from behind after her husband had hit her with his car and punched her. She also did not accept what was alleged in the petition on which she had appeared in the sheriff court. At the outset the petitioner had been charged with murder, but in due course she was served in January 2005 with an indictment charging her with culpable homicide. She informed the writer of the social inquiry report, which was dated 23 May 2005, that she was devastated by her actions which had led to the deceased losing her life. However, she also stated that she believed that she was acting in self-defence, and had phoned the police after the incident to report that she had been assaulted. She never intended to hurt the respondent. The Advocate depute observed that the respondent's plea of guilty had come very much at the last moment, being tendered at the trial diet (having been intimated in the previous week) although there may have been reasons why it was not tendered earlier. The Crown case had been prepared, and the witnesses had been cited. It must have been known to her agents long before that there were numerous eyewitnesses who would speak to her attack on the respondent. [8] For the respondent Mr Duguid disputed the terms in which the Advocate depute had described the quality of the respondent's actions. He pointed out that the sentencing judge had referred to them as unpleasant, irresponsible and unbridled. They were unprovoked, he accepted, but they were also inexplicable and out of character. He emphasised that the respondent had not been charged with causing severe injury to the deceased. There had been, he said, a momentary loss of control on her part. He disputed the suggestion by the Crown that she should have foreseen serious consequences for the deceased. There was also no basis for saying that she had taken advantage of the fact that the respondent was an older woman. Previous decisions, such as Docherty v H M Advocate 2000 S C C R 106 and Burns v H M Advocate 1998 S C C R 281, showed that the nature of an attack did not determine whether there was no alternative to a custodial disposal. [9] As regards the statements which the respondent had made about being attacked by the respondent and her husband, they represented the respondent's position, but they were not borne out, and he did not rely on them. However, they should not be treated as undermining the genuineness of her remorse. At no stage had she denied the physical acts alleged against her. At the time of the judicial examination, when she was facing a charge of murder, she was very distressed. Her life had been immeasurably changed by what had happened. She was a virtual recluse, and was being punished every day. Her partner had given up his work to support and be with her. This was confirmed by a recent report by a chartered clinical psychologist which stated in addition that the respondent displayed empathy for the family of the deceased. Her two children were suffering from bullying and the publicity which had been given to the case. A custodial sentence would affect them at an important stage in their lives. Only on 11 March 2005 did the psychologist advise that the respondent was fit to give instructions for the tendering of the plea of guilty. [10] We have considered the nature of the respondent's actions. They took the form of a violent and sustained attack on the deceased. As the sentencing judge pointed out, they resulted in deep bruising and abrasions. We would, however, go further: kicking someone repeatedly in the face clearly involves the risk of causing yet more serious injury. The attack was, it was conceded, unprovoked. There was, moreover, no suggestion that anything had happened to the respondent that could put her actions in a less unfavourable light. Her actions were, in short, devoid of any mitigating circumstances. [11] The sentencing judge described the respondent as genuinely remorseful. There is, however, a clear contrast between the respondent's feelings about the death of the deceased and her attitude to her actions and the circumstances in which they took place. Starting with the bizarre manner in which she behaved immediately after attacking the deceased, she expressed no regret for her actions but repeatedly made unfounded claims that she was acting in her own defence. It appears that the sentencing judge took account of one aspect without the other, when both were relevant to any reliance on remorse in mitigation of sentence. [12] Sentencing for culpable homicide is notoriously difficult, since the crime may be committed in a wide diversity of circumstances. An appropriate sentence will depend on the factors which are present in the particular case. Cases in which death has occurred in some unforeseeable manner present particular difficulties. While it is right to recognise that it was unforeseeable, the death cannot be left entirely out of account since it was the consequence of the criminal act of the accused. We appreciate the difficult task which confronted the sentencing judge in arriving at her decision. However, we consider that the Advocate depute was well founded in maintaining that the sentencing judge failed to take adequate account of the serious nature of the respondent's attack on the deceased, and that she attached undue weight to the respondent's later expressions of remorse. We take into account the effect which the fatality has had on the respondent in her personal life. A decision to interfere with a sentence on the ground that it was unduly lenient is no light matter. However, in the whole circumstances we are satisfied that, on any reasonable view of the case, the only appropriate disposal was a custodial one. [13] We will quash the sentence imposed by the sentencing judge, and substitute a sentence of imprisonment of the respondent for a period of four years, having made a discount of six months in respect of the respondent's plea of guilty.