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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Penrose
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[2006] HCJAC 29
Appeal No: XC803/04
OPINION OF THE COURT
delivered by THE LORD JUSTICE
CLERK
in
APPEAL
of
SCOTT JAMES McMILLAN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant: McMenamin, solicitor
advocate, Fraser, solicitor advocate; Fairbairns
Respondent: Stewart, QC,
AD; Crown Agent
9 March 2006
The conviction
[1] On
16 August 2004, the first
day of a sitting at Edinburgh High Court, the appellant pled guilty to the
following amended charge:
"(1) On 19
or 20 July 2003 you SCOTT JAMES McMILLAN did, with face masked, break into the
house at 1 Strathesk Grove, Penicuick; and
(b) assault
Nicola Nilson McLeod, late of 1 Strathesk Grove, aforesaid, brandish a knife at
her, struggle with her, repeatedly punch her on the head and body, repeatedly
strike her on the head and body with a knife and did murder her".
The appellant was indicted on this
charge, and on other charges, along with Mark Adamson. Adamson pled guilty to assault.
[2] Lord
Hardie sentenced the appellant to be detained without
limit of time and fixed a punishment part of 18 years.
The facts
[3] At
the time of her death the deceased was living with Gary Hobbins
and their 10 year old daughter at the locus libelled. The deceased and Hobbins were users of and
dealers in drugs. Adamson's girlfriend,
Hazel Crawford, had been involved in an incident with the deceased and Hobbins
in 2000 when the deceased had threatened her with a weapon and removed
jewellery from her in satisfaction of a debt owed by one of her friends. The appellant's girlfriend, Amanda Bargon,
had also had difficulties with the deceased and Hobbins. In November 2001 one of her friends had kicked
the deceased's car and had broken a wing mirror. The deceased had thereafter assaulted Miss Bargon. Because of
these hostilities, Miss Bargon was forced to move out
of the area. On the day on which she left,
Hobbins followed her to her new address.
[4] On
the evening of 19 July
2003 the appellant and Adamson were out drinking. They discussed the behaviour of the deceased
and Hobbins.
In the course of the evening the appellant armed himself with a
knife. He and Adamson set off for the
deceased's house. On the way, Adamson
picked up a lawn edger. They got to the
house at about 4.20 am. Adamson kicked open the back door. They went into the livingroom where the
deceased and Hobbins were sleeping. Adamson
struck Hobbins with the lawn edger and began to
struggle with him. The appellant made
towards Hobbins brandishing the knife.
As he did so, the deceased jumped onto his back. Hobbins ran from
the house pursued by Adamson, leaving the appellant in the livingroom fighting
with the deceased. In the course of the
struggle the blade of the appellant's knife broke off from the handle. The appellant obtained another knife,
seemingly from within the house, and stabbed the deceased 40 times. She died almost immediately.
[5] On
27 July 2003 the police
interviewed the appellant. He made a full
and detailed admission of his part in the murder.
[6] The
pathologists concluded that any one of 20 of the wounds inflicted by the
appellant could have proved fatal. The
most serious wounds were to the aorta, the abdomen, a main artery, the heart
and the lungs. There were also numerous
blunt force injuries consistent with punches to the face, legs and arms. There were a number of defensive wounds on
the deceased's forearm and legs and lesser defensive injuries to her hands and
arms. Bruises on her knuckles may also
have been defensive injuries.
The plea in mitigation and the sentence
[7] The
appellant was aged 16 at the date of the offence. He had no previous convictions. The co-accused was then aged 25. The defence submitted a report by a
consultant forensic clinical psychologist who concluded that the appellant was
an intelligent young man who had expressed remorse for the loss of the
deceased's life. The plea in mitigation
was to the effect that the attack had been planned during a drunken discussion
and had escalated. The initial intention
had been to assault Hobbins. There had
been no intention to murder. The
appellant had taken a knife with him in case he should be assaulted. He recalled the incident up to the point when
the deceased got on his back and he dropped the knife. He recalled picking up a knife but could not
recall anything thereafter.
[8] The
sentencing judge took the view that this was a "horrific and brutal"
murder. It involved breaking into the
victim's house in the early hours of the morning armed with a knife and savagely
stabbing the victim 40 times. When the
first knife broke, the appellant armed himself with a second knife. Even allowing for the appellant's youth, the
sentencing judge considered that the appropriate punishment part would be 20
years, but for the plea of guilty. In
view of the plea of guilty, he reduced the punishment part to 18 years.
Submissions for the appellant
[9] The
solicitor advocate for the appellant submitted that the punishment part was
excessive. The appellant had shown
remorse from the outset. He made a full
confession. His behaviour was out of
character. He was only 16 years old at
the time and had no previous convictions.
He had carried out the attack in the company of a considerably older
man. A discount of only 10% had been
allowed for the plea of guilty on the first day of the sitting. The plea could not have been tendered earlier
because the defence were awaiting the results of certain enquiries. However, the Crown had been notified in
advance that the case would not be contested on the facts. In the circumstances, a greater discount
should have been allowed (eg Alexander v HM Adv, 2005 SCCR 537).
Decision
[10] There are two questions in this appeal; namely (1) what punishment
part would have been appropriate but for the plea of guilty; and (2) what
discount, if any, should be made in respect of the plea.
The punishment part
[11] In our opinion, the starting point taken by the sentencing
judge, namely 20 years, was excessive.
We have taken into account each of the points on which the sentencing
judge relied. We agree with him that
each is a relevant consideration. In our
opinion, the most relevant considerations are the absence of provocation, the
degree of premeditation, the use of a second knife when the first one broke, and
the savagery of the attack itself. These point to a punishment part towards the higher end of
the scale.
[12] However, the appellant was only 16 at the time and had not been
in trouble before; and we are inclined to accept the submission that he did not
set off with murder in mind, but only with the intention of inflicting an
assault.
[13] In all the circumstances, and leaving aside any question of
discount, we consider that a punishment part of 15 years would sufficiently
have marked the gravity of the offence.
The discount
[14] The appellant made a full confession soon after the
incident. There is no suggestion that
there were any circumstances that might have justified a plea of culpable
homicide. So far as we can see, there
never was a defence to this charge. We
are not impressed by the excuse offered to us for the late plea of guilty. We have been given no clear explanation why
the plea could not have been tendered much sooner. The only credit that the defence can claim in
respect of the plea is that the Crown was at least advised in advance that the
facts of the case would not be in dispute.
We consider that only a nominal discount can be allowed against the
punishment part that would otherwise have been imposed. In the whole circumstances we shall allow a
reduction of one year.
Disposal
[15] We shall therefore allow the appeal, quash the punishment part
imposed and substitute a punishment part of 14 years.
