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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lady Cosgrove
Lord Philip
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[2006] HCJAC 24
Appeal No: XC517/05
OPINION OF THE COURT
delivered by LORD PHILIP
in
APPEAL AGAINST SENTENCE
by
SCOTT ANDERSON
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant: Shead; Drummond Miller
Respondent: G. Henderson, A.D.; Crown Agent
1 February 2006
[1] The
appellant, who was born on 5 June
1988, pled guilty to culpable homicide at a preliminary hearing
in the High Court of Justiciary at Edinburgh on 8 April 2005. He was originally indicted on a charge of
murder but his plea to culpable homicide in the following terms was accepted by
the Crown.
"On 9 October 2004 at Kilbowie
Road, Cumbernauld, you did assault
Frank Learmonth, 74B, 5th Floor, Ruth House, Allanfauld
Road, Seafar, Cumbernauld, and strike
him on the head with a sword whereby he was so severely injured that he died
later that day at the Southern General Hospital, Glasgow, and you did kill
him."
[2] The
appellant appeared as a first offender and sentence was deferred for the
preparation of a social enquiry report. At
the time the crime was committed he was 16 years of age On 20 May 2005 he was sentenced to 6 years detention
from that date. In sentencing the
appellant the trial judge said that had he been convicted after trial the
sentence would have been in the region of 8 years detention.
[3] The
fatal incident took place in Kilbowie
Road, Cumbernauld, outside licensed
premises known as Jumping Jax, a short distance from Sandyknowes
Road, where the appellant lived. The deceased, Frank Learmonth, was 25 years
of age and lived in Cumbernauld with his girlfriend of 3 years and their 10
month old son.
[4] During
the evening of Friday 8 October 2004 the appellant was in the company of his
older brother, Ross Stevenson, aged 18, and the deceased, with whom they were
both friendly. They had been in the
company of other young men of similar ages.
The incident which led to the deceased's death occurred after a group of
youths, which included the appellant, Ross Stevenson and the deceased, from the
South Carbrain area of Cumbernauld, confronted a group of youths from the
Abronhill area of the town. The trial
judge was informed that there had been a history of bad feeling between groups
of youths from these two areas over many years, and that gang fights had
regularly taken place.
[5] During
the evening approximately 80 people from the Abronhill area were attending a
private 18th birthday party which was being held in the lounge bar of Jumping
Jax. Some members of the group from South
Carbrain were in the public bar premises. The appellant was not one of them. At about 11.45 p.m. staff in the licensed premises asked patrons in the
public bar and lounge bar to leave the premises. This resulted in a large number of young
people congregating outside the building.
Youths from the two areas came into contact with each other and several
fights broke out between members of the rival groups. While this fighting was taking place, the
father of the person whose 18th birthday had been celebrated heard a young male
shouting "Go and get the sword".
Subsequent police investigations revealed that the young male was Ross
Stevenson, the appellant's older brother, shouting to the appellant to retrieve
a sword from the family home. The
appellant then ran off and, shortly thereafter, returned to Kilbowie
Road carrying the sword. He gave the sword to his brother who swung it
from side to side without striking anybody with it. The appellant and his brother then noticed
the deceased and a man from Abronhill fighting in the middle of the road. At this point the appellant took the sword
from his brother and ran towards the deceased and the other man who formed one
of a number of small groups involved in fights.
The appellant was holding the sword in front of him.
[6] The
ensuing events were witnessed by a Crown witness, Paul Omand, who was on
friendly terms with both the appellant and the deceased and who, according to
the Crown, appeared to have been the only person who actually witnessed the
fatal incident. He saw the appellant
standing in the middle of the road holding the sword in both hands down by his
side. He then saw him lift the sword above
his head. At this point the man who had
been fighting with the deceased turned round and headed towards him. The man appeared to be about to attack the
appellant, who was, at that stage, about 3 metres away from him and the
deceased. The appellant was observed to
swing the sword from above his head down in front of him. As he did so the blade of the sword came
apart from the handle and travelled through the air striking the deceased in
the right eye.
[7] The
sword was in a defective condition in that the blade was not securely fixed
into the handle. This defect was known
to the appellant and his brother prior to the fatal incident. The dimensions of the sword were such that
when the appellant swung it, it would not have made contact with the other man
had it remained intact. Even although
the man was moving towards the appellant, at the point the sword was swung
downwards, he was not near enough to have been struck, deliberately or
accidentally. Nor would the deceased
have been struck had the blade of the sword not become detached from the
handle. .
[8] After
the arrival of the police and an ambulance the deceased was taken to Glasgow
Royal Infirmary where a decision was taken to move him to the Southern General
Hospital for neurosurgery. The blade of
the sword had penetrated approximately 8 inches inside his head through his
right eye. Approximately 18 inches of
the blade remained outside his head. The
sword was removed by a neurosurgeon at the Southern General Hospital but no
medical intervention could have saved the life of the deceased and life was
pronounced extinct later that day.
[9] The
appellant was interviewed as a witness by police officers on 10 October 2004. Whilst giving a witness statement he became
upset and began to divulge details of what had happened. He was then detained and interviewed under
caution. He said he could have been
responsible for what happened to the deceased but had not meant to do it.
[10] Counsel for the appellant addressed the trial judge in
mitigation and stressed that there was no hostility between the appellant and
the deceased. The appellant had not been
in the public house premises, but had become aware that his brother was
involved in fighting outside. He had
been told by his brother to go and get the sword. After he had retrieved it and returned to the
locus he swung it as a threatening gesture to frighten off two men from
Abronhill, one of whom had been the man fighting with the deceased. The appellant's recollection was that it was
on the upswing that the blade had come apart from the handle. He had no intention of harming the
deceased. After the blade had left the
handle he heard that something had happened to the deceased. He panicked and ran away. He had not been under the influence of drink
at the time. He been very much affected
by the death of the deceased. His
remorse was genuine.
[11] The social enquiry report indicated that the appellant's
parents had separated during his childhood and both had subsequently experienced
difficulty in controlling his behaviour.
He had been placed on a statutory supervision requirement under the
Children (Scotland) Act
1995. He was assessed as a high risk of
reoffending.
[12] In presenting the appeal Mr. Shead, for the appellant,
submitted that the circumstances of the deceased's death were highly
unusual. The catastrophic result had not
been intended, although the appellant had been aware that the sword was
generally in poor condition he was not aware of the particular defect which had
given rise to the deceased's death. The
starting point of 8 years was too high for a case in which the consequences
were entirely unintended. It had been
impracticable, in view of the circumstances and the appellant's age, to proceed
by way of letter under section 76 of the Criminal Procedure (Scotland) Act 1995.
[13] After careful consideration, we have come to the view that in
the circumstances of this case, the sentence imposed by the trial judge cannot
be said to be excessive. The appellant
had been aware of the fighting outside the licensed premises. He had gone to his home to fetch the sword
and returned with it to the scene of the fighting. The sword was clearly a dangerous
weapon. Its defective condition of which
the appellant was aware, created additional and unpredictable dangers. Although the particular use to which he put it
was not intended to injure any individual, he was nevertheless using the weapon
in a confused confrontational situation.
In our view the degree of culpability was high.
[14] It is clear that the trial judge took as a starting point in
the determination of the appropriate sentence the period of 8 years. Having regard to the degree of culpability
involved we consider that period to be within the appropriate range. To that period he applied a discount of 2
years to take account of the appellant's early plea of guilty and his
expression of remorse. We did not
understand the discount applied by the trial judge to be challenged. We accordingly refuse the appeal.
