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Cite as: [2005] HCJAC 77, [2005] ScotHC HCJAC_77

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Her Majesty's Advocate v. Alexander [2005] ScotHC HCJAC_77 (09 June 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Abernethy

Lord MacLean

[2005HCJAC77]

Appeal No: XC207/05

OPINION OF THE COURT

delivered by LORD MacLEAN

APPEAL AGAINST SENTENCE

HER MAJESTY'S ADVOCATE

Appellant;

against

SHAUN ALEXANDER

Respondent:

_______

Appellant: J. Beckett; Crown Agent

Respondent: G. Jackson, Q.C., Tonner; McKenzies, Kirkcaldy

9 June 2005

[1] This is an appeal by the Crown on the ground that the punishment parts of 17 years were unduly lenient in respect that the discount of 7 years in respect of each of the punishment parts set by the sentencing judge was excessive.

[2] The respondent, Shaun Alexander, who is aged 32 years, pled guilty on 31 January 2005 at the High Court sitting in Edinburgh to the following charges:

"(7) on 10 October 2004 at 13 Cabbagehall Place, Leslie, Fife, you did assault Barry Greig, c/o Fife Constabulary, Glenrothes and did repeatedly strike him on the head and body with a crowbar or similar instrument, to his severe injury and permanent disfigurement;

(8) on 10 October 2004 at 13 Cabbagehall Place, Leslie, Glenrothes, Fife, you did assault Kevin Braid, now deceased, then residing there and did repeatedly strike him on the head and body with a crowbar or similar instrument and repeatedly strike him with a knife or similar instrument and did murder him;

and

(9) on 10 October 2004 at 13 Cabbagehall Place, Leslie, Fife, you did, having previously evinced malice against her, assault Nicola Johnstone or Alexander, now deceased and formerly of 16 Westerlea, Leslie, Fife, and did repeatedly strike her on the head and body with a knife or similar instrument and did murder her."

The sentencing judge, Lady Smith, sentenced the respondent to life imprisonment in respect of the two murders, setting the punishment parts at 17 years. On charge (7) she sentenced him to 5 years imprisonment to be served concurrently with the periods of life imprisonment.

[3] We take the narrative of the circumstances of the offences and the admissions of the respondent from the Report of the sentencing judge:

"The appellant and Nicola Alexander were husband and wife. They had separated in April or May 2004, she taking their 18 month old son with her. The appellant had persistently followed her to work and to the college where she was studying. He attended at the college car park every day, sometimes up to three times. Nicola Alexander had asked him to leave her alone. She had applied for an interdict to prevent him from molesting her but it had not been granted by the time of the incidents referred to in the charges. At that time, the appellant was not being allowed contact to his son. He had said to friends that if he could not have his wife then no-one else would have her and if he caught her with anyone else then he would attack or kill them both. I was not advised when or to whom he had made these comments. He had, on occasion, approached or made menacing comments to men whom he considered, without foundation, were having a relationship with his wife.

In due course, Nicola Johnstone did start a relationship with Kevin Braid. They had been seeing each other for about three weeks by 9 October 2004. That evening, Kevin Braid met two friends, Claire Ritchie and Barry Greig in licensed premises in Leslie. Nicola Johnstone was working that evening and had agreed to join them when she finished. She did so. Kevin Braid invited Claire Ritchie and Barry Greig to join them at his house later on. He and Nicola Johnstone were, subsequently, confronted by the appellant as they left a bar in Leslie. His doing so caused them to go to the police station to report the incident. They made an initial complaint and waited for a police officer to arrive to take statements. After a while they decided that they would return the following day since it was a minor matter and the police were obviously busy with other cases. They went back to Kevin Braid's house in Cabbagehall Place.

Claire Ritchie and Barry Greig arrived at the house after 1a.m.. The four friends had a drink together in the living room and then decided that they would go into the jacuzzi which was situated in the back garden. They did so. Kevin Braid was naked, Barry Greig was wearing boxer shorts and the two women were, initially, wearing T-shirts which they took off once they found the water warm.

Shortly after the friends had entered the jacuzzi, they became aware of the appellant standing at the back of it, armed with a knife and a crowbar. Barry Greig got to his feet and asked what was happening. The appellant struck his head with the crowbar and caused him to fall back into the water. He got to his feet and moved towards the appellant and was struck again, sustaining a wound to his nose. He was knocked to floor of the jacuzzi. He tried to get up a third time but on this occasion Claire Ritchie managed to pull him away and they escaped to the rear of the house.

Claire Ritchie saw Kevin Braid trying to take the crowbar from the appellant before she went into the house. She made a 999 call as Barry Greig's face and head were bleeding copiously. They heard female screams coming from the area of the jacuzzi and then getting closer to the house before suddenly stopping.

The police and an ambulance arrived at the scene in response to the 999 call. They found that Barry Greig was seriously injured. In the garden they found Kevin Braid's naked body on the ground close to the jacuzzi, bearing substantial wounds to the chest. They found Nicola Johnstone's body, clothed only in a T-shirt which was heavily blood stained, in the driveway between a wall and parked vehicles.

Barry Greig was taken to Ninewells Hospital where he was found to have nasal septum fractures and two 2cm lacerations to his head above his right eye and on his forehead. He required surgery in respect of his nasal injuries. He has been left with scarring, suffers daily headaches, pain and numbness and anxiety. He has not yet been able to return to work as a labourer. Claire Ritchie has required counselling.

At post mortem, Kevin Braid was found to have died from a single stab wound to his left upper chest, over the collar bone. It had a two part configuration which suggested that the knife had entered the chest, was withdrawn and was re-entered. The main stab wound partially severed the sub-clavian vein. Death would have followed rapidly. The front of his torso had minor wounds and abrasions consistent with being caused by serrations on a knife. There was an incision on his right thumb, a stab wound on his right wrist and incisions on the pulps of his three fingers and left thumb all typical of defensive injuries. There were four lacerations on his forehead and scalp and bruises on his back, all consistent with having been hit with a crowbar together with other scattered bruises and abrasions due to blows from a blunt instrument.

At post mortem, Nicola Johnstone was found to have died due to stab wounds to her chest and abdomen. There were eight stab wounds on her body. One stab wound in the mid chest appeared to be the result of the knife blade having entered up to its hilt. It went through the breastbone and the pericardium, which would have required considerable force. The front wall of the main chamber of the heart was penetrated. Death would have been quick. There was also a stab wound on the left lower front of the chest which passed through the rib cage to penetrate the liver. There was a second stab wound on the right side of the lower chest wall which entered the chest cavity, nicking the lung before entering the diaphragm and liver. A further wound on the top right shoulder passed through muscle in the upper chest wall and penetrated the right lung, a v shaped incision on the front left shin was probably a defensive wound and there was a wound to the back of the right armpit. The stabbing appeared to have taken place in the driveway, where the body was found.

The police became aware that the appellant was the person to look for. They set up roadblocks and searched for him. He was found in a car near the Wicks O'Baiglie road close to Perth. When the police approached him he said: 'It's me you're looking for. I'll come with you.' He was cautioned and asked: 'Do you know why we want you ?' to which he replied:

'Aye. I went a bit mental and did my wife and guy she was seeing. I was just going to hand myself in. How are they?'

He was detained and informed that the reason for his detention was an allegation of murder. He asked: 'Who is it that's dead?'

He was cautioned again. He said: 'I think it's my wife.'

He was interviewed at Glenrothes police station. He said he had seen his wife and Kevin Braid outside a local nightclub and confronted them. He said that he 'went potty and freaked'. He said that he had never meant to kill anybody. He went to Kevin Braid's house. As was explained by Mr Jackson QC, in the course of his subsequent plea in mitigation, the reason for the appellant going to the house was to vandalise Kevin Braid's car using his crowbar and knife, which he did, as can be seen in the Crown photographs (CP1 p.289). He then heard the noise of people outside and saw that they were in the jacuzzi. He described being confronted by Barry Greig and striking him. Regarding his wife, he said that he never meant to cut her and she ended up in a pool of blood. He told the police that the crowbar and knife were on the A911 Muirton by pass and, on being taken there, showed them where the items were. Before his detention, he had spoken on the telephone to a friend and said that he had stabbed Kevin Braid and his wife and he did not know whether they were alive or dead. After his arrest, when visited by a friend in prison, he said: 'I told you I'd do it, and I did.'

Kevin Braid was 41 years old and divorced. He had two children aged 12 and 8 years, who usually spent half of each week with him. His parents and sister have found his loss very hard to accept. His sister was also his business partner and the business has had to close.

The son of the appellant and Nicola Johnstone is now being cared for by his maternal grandparents, who are distraught at the loss of their daughter."

[4] In opening his submission that the punishment parts were unduly lenient the Advocate depute informed us that the respondent appeared on petition on 11 October 2004 and was remanded in custody. He was fully committed on 19 October 2004 and again remanded in custody. On the same day he was judicially examined and elected not to answer the questions put to him, having received advice from his solicitor whom he consulted. The indictment, which then contained ten charges, was served on him on 30 December 2004 with a trial diet on 31 January 2005. On the latter date arrangements were made to receive the pleas of guilty to which we have already referred and witnesses cited for the trial were countermanded. It was explained that the respondent's counsel, Mr. W.G. Jackson, Q.C., had intimated on 24 January 2005 that the respondent was prepared to plead guilty, subject to a narrative being agreed. Until then there had been some indication that pleas would be offered but the nature of the pleas was not specified. Having been led to believe that a defence to the charges was being prepared the procurator fiscal precognosced the case for trial. A psychiatric report from Dr. Black of the State Hospital at Carstairs which had been obtained by the defence, was made available to the Crown only at the sentencing diet on 28 February 2005.

[5] It was not correct that, as the sentencing judge had said in her report, in early November 2004 it was absolutely clear that the respondent would be pleading guilty. Nor was the sentencing judge well-founded when she held that, in this case, the weight of the evidence against the respondent should not detract from what would otherwise be the appropriate discount in respect of the guilty pleas. The weight of evidence was not an entirely irrelevant consideration. (Du Plooy v. H.M. Advocate 2003 S.C.C.R 640 and, at the sentencing stage, 2004 S.C.C.R. 330). The appeal court had very rarely made a full allowance of one third for a guilty plea. (R.B. v. H.M. Advocate 2004 S.C.C.R. 443 where the timing of the plea was not very different from the present case; and compare McGaffney v. H.M. Advocate 2004 S.C.C.R. 384, and H.M. Advocate v. Booth 2005 S.C.C.R. 6). The utilitarian value of a plea of guilty was lost if there was not an early and clear indication of the willingness to tender it. (H.M. Advocate v. Roulston 2005 S.C.C.R. 193 in which it was held that not only was the sentence unduly lenient but so also was the discount (25%) allowed in respect of a late plea).

[6] This was a case, according to the Advocate depute, in which the respondent was responsible for the murder of two persons and a serious assault upon a third person. It was premeditated: the respondent had gone to the locus armed with a knife and a crowbar. He showed little remorse at the time, having said to a friend: "I told you I'd do it and I did". Both victims were unarmed. One was undressed and the other was dressed only in a T-shirt. Extreme violence had been inflicted by the respondent on his wife. To reflect all this a 24 year period was correctly identified by the sentencing judge as an appropriate period for the punishment parts before any discount for the guilty pleas.

[7] The Advocate depute did not suggest that there should be no discount for the guilty pleas. There were, however, three considerations which indicated that the discount allowed by the sentencing judge was too great. First, she treated the pleas over-generously as ones that had been tendered at the earliest opportunity. In fact, these pleas were intimated by defence counsel only on 24 January 2005 when he contacted the Crown Office. Secondly, she left out of account the overwhelming evidence of guilt in this case. Indeed, she disregarded that evidence entirely. Thirdly, the court should consider murder cases differently. In such cases an over-generous allowance would fail to meet the objectives of deterrence and retribution which punishment parts were intended to achieve. In light of these considerations an allowance of 7 years (or 29% of the 24 year period chosen) was unduly lenient, and the sentencing judge had erred in making it.

[8] Mr. Jackson, Q.C., who appeared for the respondent, maintained that the figure of 24 years for the punishment parts was excessive. There was, of course, a background to the offences. The respondent had behaved in an obsessional way towards his wife. He had clearly been in a distraught state over a considerable period. While this was not a crime passionnel, it was not cold blooded murder either. The defence psychiatric report showed that the respondent had been a very disturbed man. He had driven to Mr. Braid's house with the intention of vandalising his rather special car. Having scratched the word "Dick" on the side of the car with a knife, he heard voices coming from the back garden. He then saw four persons in the jacuzzi there amongst whom were his wife and Mr. Braid. At the sight of that, said Mr. Jackson, he "lost it". When he was detained by the police he seemed unaware of the condition of his victims were in. That indicated a disturbed state of mind. His prior criminal record did not include any convictions for violence. He had expressed remorse to the author of the Social Enquiry Report and he had made no attempt to minimise his actions.

[9] Turning to the discount of 7 years, counsel totally opposed the submission that the sentencing judge was over-generous. The pleas had been tendered at the first opportunity. He explained that he had been instructed on behalf of the respondent as early as 3 November 2004. While the respondent had always accepted responsibility for the offences, it was essential that the respondent should be psychiatrically examined. The first problem which arose was with the Scottish Legal Aid Board who initially declined to approve the engagement of a consultant forensic psychiatrist from the State Hospital, Carstairs. Eventually, he was instructed on 3 December 2004 but his report was not available until 18 January 2005. On the basis of that report it was obvious that the respondent would have to plead guilty to both murders. The lesser offence of culpable homicide on the basis of diminished responsibility was not open. Professionally it was not proper to offer any pleas until the respondent's mental state at the time of the offences was established. The sentencing judge was right in these circumstances to consider that on 24 January 2005 the pleas had been offered at the first opportunity.

[10] She was also right in her assessment of the weight of the case. The fact that there was a very strong case should not prevent a normal discount because there was always a utilitarian value to be placed on the plea. That was so even when an accused was caught red-handed.

[11] As for murder, it was subject to a different regime from determinate sentences. The first time a life prisoner could apply to the Parole Board for release on licence was on expiry of the punishment part. The sentencing judge had not gone to the maximum of one third. If the discount was to be one quarter, the deduction would be 6 instead of 7 years. So to reduce it to that figure would be to tinker with the period selected for the punishment part. This court would have to say that the sentencing judge was wildly out in her discount before it could regard a deduction of 7 years as unduly lenient. She had fully considered all the issues and had approached them carefully and properly. She had not erred in any way.

[12] It may be right to say that the respondent never denied his responsibility for the offences but, equally, as the Crown pointed out, he did not, at least initially, show much remorse for his actions either. We refer to the admission he made to a friend: "I told you I'd do it and I did". The murders were brutal and premeditated. Extreme violence was undoubtedly inflicted by the respondent on his wife. Even if there was an obsessional aspect to the murders, the offences remained very serious ones. We consider that the period of 24 years selected by the sentencing judge for the punishment parts was an appropriate one. It was not in our view excessive.

[13] We accept the correctness of Mr. Jackson's professional decision not to tender any pleas until the respondent's mental state at the time of the offences was established by the opinion of a consultant forensic psychiatrist. While counsel could do little else, the effect of the delay in tendering the pleas was that the Crown had to make full preparations for trial, including, of course, the precognition of witnesses. As a result, there was, in fact, very little utilitarian value in the pleas. The sentencing judge appears not to have taken this into account. Nor did she properly take into account the great weight of evidence against the respondent. That was in our view a relevant factor in determining the amount of the discount to be given for the pleas of guilty.

[14] In the result, we are in no doubt that the deduction of 7 years was, in the circumstances of this case, unjustified and excessive. We regard the punishment parts as being unduly lenient. We will quash the punishment parts and, on the basis of a discount of 4 years, substitute punishment parts of 20 years for both murders.