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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
Lord Johnston
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[2007] HCJAC53
Appeal No: XC184/07
OPINION OF THE COURT
delivered by LORD MACFADYEN
in
NOTE OF APPEAL AGAINST SENTENCE
by
DAVID ANDREW THOMSON
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Shead, Mackenzie; Jim Friel & Co.
Alt: Kearney, A.D.; Crown Agent.
11 September
2007
Introduction
[1] The
appellant, David Andrew Thomson, and his co-accused, Sean Paul Kergan
("Kergan"), pled guilty at the High Court in Glasgow on 28 April
2006 to a
charge of murder in the following terms:
"on 19 September 2005 at Sighthill
Park, Pinkston Road, Glasgow near to the M8 Motorway footbridge, you DAVID
ANDEW THOMSON and SEAN PAUL KERGAN did assault Stephen Michael Daly, now
deceased, and repeatedly punch, kick and stamp on his head and body and
repeatedly strike him on the head with a razor or similar instrument all to his
severe injury and you did murder him".
The libel had originally contained a further averment that
the appellant and Kergan had set fire to the deceased's clothing and his foot,
but the deletion of those words from the pleas was accepted by the Crown.
[2] On 12
June 2006 the
Trial Judge sentenced each of the appellant and Kergan to detention for life,
and set the punishment part in respect of each sentence at thirteen years. The sentences were backdated to 27
September 2005. In each case the punishment part
is expressed in the court minutes as "thirteen years, modified from a period of
sixteen years". We were informed that
Kergan appealed against the length of the punishment part imposed on him, but
that the appeal was refused.
[3] The appellant
appeals against the punishment part selected by the Trial Judge, submitting
that it is excessive having regard to the nature of the crime and his personal
circumstances.
The circumstances of
the crime
[4] As the Trial
Judge narrates in his Report, the assault on the deceased took place at the end
of the bridge mentioned in the libel, but his body was then removed to a
position against a fence underneath the north side of the bridge, where it was
left lying supine. There were no
independent eye witnesses to the assault.
From CCTV film, admissions made by the appellant and Kergan, forensic
examination of the locus and the findings on post mortem examination of the
body, the events may be reconstructed as follows. At about 11.00 pm the appellant and Kergan
were at Buchanan Street Bus Station, both under the influence of drink. They made their way to a hostel in the
vicinity, and outside it fell in with the deceased, who was not known to them
and was also drunk, and struck up a conversation with him. They walked together towards Sighthill. At the footbridge, an argument broke out, and
Kergan punched the deceased on the face.
The origin of the disagreement appears to have been an attempt by the
deceased to take an MP3 player from Kergan.
The deceased was then subjected to a sustained assault whereby he
suffered extensive head injuries consistent with punching, kicking and
stamping, as well as three slashing injuries.
Kergan admitted that it was he who inflicted the slashing injuries, and
that he punched the deceased, knocking him unconscious. The appellant admitted punching, kicking and
stamping. The cause of death was
certified as inhalation of blood due to blunt force injuries to the head.
The approach of the
Trial Judge
[5] It is
convenient, before turning to the submissions made on the appellant's behalf,
to note certain of the observations made by the Trial Judge in his report. He emphasised the deletion that had been
accepted from the libel. He noted that
the previous criminal histories of the appellant and Kergan were not identical,
but said that he would make no distinction between them. He then continued:
"In my judgment, in order to reflect
the degree of violence shown to the victim as well as the other circumstances
of the crime, ... the appropriate punishment part to reflect the crime itself was
one of 16 years. However, there had to
be taken into account the relative youth of the appellant at the time of the
offence - the appellant was 18 and the second accused was 17. There had also to be taken into account the
remorse shown by both accused which was reported upon by the social workers in
their reports to the court. There had
also to be taken into account the early attempts to negotiate a plea of guilty
which, of course, did not come to fruition until after the first day of the
trial. I am, however, aware of
substantial efforts being made prior to that to secure the pleas. These factors, in my opinion, reduce the
punishment part in each case from one of 16 years to one of 13 years."
With particular reference to the grounds of appeal, the Trial
Judge noted that the appellant had no previous convictions for violence, that
he had been recorded as showing "considerable victim empathy" (which he took to
be an indication of remorse), that the crime was not premeditated and the
appellant did not use a weapon, that he surrendered voluntarily to the police,
and wished from a relatively early stage to plead guilty. He noted that:
"The fact, however, is that pleas of
guilty were not made until after the first day of the trial.
It should be appreciated that on Du Plooy principles little discount can
be made for such a late plea."
The submissions on
behalf of the appellant
[6] Mr Shead
criticised the approach of the Trial Judge in that he had selected a "starting
point" appropriate to reflect the crime, and had then reduced it to take
account of other considerations such as the appellant's age, the remorse he had
shown, and the steps he had taken to negotiate a plea of guilty. He submitted that the proper course was to
select a starting point which reflected all relevant mitigating considerations
other than the plea of guilty, then to apply to that starting point a discount
in terms of section 196 of the Criminal Procedure (Scotland) Act 1995, if it was appropriate to
do so.
[7] Mr Shead
submitted that the circumstances of the offence did not justify the selection
of a starting point which exceeded the range that was "considered to be
generally appropriate". That range, he
suggested, was between twelve and fourteen years. This was an all-too-common type of murder,
which prima facie fell within that
range. When account was taken of the
lack of premeditation, the fact that the appellant did not use a weapon, his
age, his lack of any relevant record, his remorse, and his voluntary surrender,
a much lower starting point than sixteen years was appropriate.
[8] Mr Shead
further submitted that, although not an early plea, the appellant's plea of
guilty should be regarded as having some utilitarian value, and therefore
meriting a discount from the sentence that would otherwise have been
appropriate.
Discussion
[9] There is, in
our view, force in Mr Shead's criticism of the Trial Judge's approach. In applying section 196, when it is
appropriate to do so, the proper approach is to select the sentence (or
punishment part) that would be appropriate in the whole circumstances of the
case, including such mitigatory factors as lack of premeditation, the absence
of the use of a weapon, the appellant's age, and lack of relevant criminal record. To do otherwise obscures what, if any,
statutory discount is given under section 196.
When account is taken in the present of case of the nature of the crime
in comparison to others that attract a life sentence, and to the mitigatory
factors founded upon on the appellant's behalf (and accepted by the Trial
Judge), we are of opinion that a starting point of thirteen years would be
appropriate.
[10] In our
opinion, the Trial Judge was right that the appellant's plea of guilty, offered
when it finally was, should attract only a modest discount under section
196. We consider that the appropriate
discount, confined to section 196 considerations, would be one year.
Result
[11] In the result,
therefore, we consider that the appropriate staring point for assessment of the
punishment part to be applied to the appellant is thirteen years, and that a
discount of one year from that figure should be allowed in respect of the
discretion conferred by section 196. We
therefore allow the appeal, quash the punishment part of thirteen years imposed
by the Trial Judge, and substitute a punishment part of twelve years.
