APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Osborne
Lord Clarke
|
[2009] HCJAC 16
Appeal Number: XC 497/06
OPINION OF THE COURT
delivered by LORD OSBORNE
in
NOTE OF APPEAL AGAINST
SENTENCE
by
JOHN AIRD KELLY
Appellant:
against
HER MAJESTY'S ADVOCATE
Respondent:
|
Act:
Brown; R.S.B McDonald, Dundee
Alt:
McConnachie, Q.C.; Crown Agent
10 February 2009
The
Background Circumstances
[1] On 6 June 2006, the appellant appeared in the High Court
of Justiciary at Dumfries facing an indictment containing
seven charges. The appellant pled guilty
to charge (7) on the indictment, under certain deletions and
substitutions. He pled not guilty to
charges (1) to (6). These pleas were
accepted by the Advocate depute on behalf of the Crown. The terms of the charge to which the
appellant pled guilty were as follows:
"(7) On 29 September 2005 at the A701 Edinburgh
Road near to its junction with Marchfield Road, Dumfries you did assault
Audrey Margaret McDowall or Kelly ...
and did drive motor vehicle registered number F883 RSX at motor
vehicle number PX02 GGP then being driven by said Audrey
Margaret McDowall or Kelly, enter the opposing carriageway and collide with
said motor vehicle and thereafter enter motor vehicle registered number PX02 GGP, seize hold of said
Audrey Margaret McDowall or Kelly pin her down, compress her throat
causing her to lose consciousness and repeatedly strike her with a saw, all to
her severe injury, permanent disfigurement, and to the danger of her life and
you did attempt to murder her."
The occasion of the acceptance of this plea of guilty
was a trial diet. The case was adjourned
until 5 July 2006 at Edinburgh for the production of a
Social Enquiry Report and Risk Assessment.
On that date the sentencing judge imposed an extended sentence
consisting in a custodial term of 12 years imprisonment, backdated to 30 September 2005, and an extension period of 6
years. It was indicated that, but for
the plea, the custodial term would have been of 14 years duration.
[2] An
agreed narrative of facts was put before the sentencing judge, which he has
summarised in this way. The appellant is
now 47 years old. Before the events to
which this appeal relates, he was living at Loganside, Main Road, Locharbriggs, Dumfries. He was a police sergeant with Dumfries and Galloway constabulary. He had been married to the complainer on 15 August 1985, but they were divorced on 22 August 2005, after 20 years of marriage. The complainer had become increasingly
unhappy with marriage. She had begun an
affair with one Cameron Graham in about October 2002. She first had left the appellant as a result
of this relationship in March 2003, but had returned after only a few
days. Following a brief reconciliation,
she had finally separated from him in about May 2003 and resumed her
relationship with Mr Graham. This
relationship was a continuing one.
[3] The
separation of the parties was bitter and acrimonious on the appellant's
part. He had been unable to accept that
the complainer had left him and would not return home. Between March 2003 and May 2005, the
appellant had engaged in a course of conduct towards the complainer, members of
her family and Mr Graham which, in their view, amounted to persistent
harassment. It took the form of repeated
telephone calls, text messages and letters to the complainer, which she had
felt were of a threatening nature. There
were also repeated uninvited visits by the appellant to the complainer's
home. The appellant had followed Mr
Graham on occasions and had confronted him regarding the relationship. He had also telephoned the complainer's
mother and had spoken to her in an aggressive and threatening manner. The complainer, Mr Graham and the
complainer's mother had all separately complained to the police, but only on an
informal basis, as the complainer feared that any official complaint would make
the situation worse. Senior management
from the police met with the appellant on several occasions regarding these informal
complaints and the appellant was advised to stay away from the complainer. Management considered that he should attend
for counselling in relation to his difficulties, but he refused to do so. The financial aspects of the relationship
between the appellant and the complainer had been settled through their
solicitors on 4 May 2005. Thereafter, the complainer had not seen the
appellant again until the events of the evening of 29
September 2005. By that time, the
complainer had started to think that she was safe from his unwanted
attentions.
[4] The A701 Edinburgh Road, near its junction with Marchfield Road, Dumfries is a two way undivided
carriageway bordered on its east side by a pavement, the Marchfield Housing
Estate and Bannatyne's Health Club. The
west side of the road borders the Dumfries and County Golf Club. The road is one of the main routes in and out
of Dumfries town centre and joins the
Dumfries bypass nearby. Shortly after 5pm on the date in question,
there was a steady stream of traffic in both directions. The complainer, who was the depute head
mistress at a local primary school, had been working that day. Subsequently she had visited a friend and
thereafter was heading home in her distinctive yellow coloured motor car (REG number PX02 GGP). She had been travelling towards the town
centre in a slow moving line of traffic.
As the complainer was driving past the entrance to Bannatyne's Health
Club on her left, she saw the appellant driving in the opposite direction. He was driving a Vauxhall Cavalier (REG number F883 RSX). When he was about two car lengths away, she
saw his face "contort with rage" and thought that he was going to drive into
her deliberately. She was correct in
that belief. He revved his car and drove
it across the carriageway colliding head on with the complainer's car. The force of the impact caused both of the
airbags in that car to inflate. It spun
round and came to rest with its rear end on the pavement.
[5] Immediately
after the impact, the complainer realised that she had to get out of the car to
escape. She tried to open the driver's
door but it was jammed. She felt
desperate. Her back was up against the
passenger door. The appellant was in a
rage. He got out of his car at speed,
opened his rear passenger door and removed a saw. He jumped over the two cars bonnets, pulled
open the driver's door of the complainer's car and jumped in to it on top of
the complainer. There had been various
witnesses to these events who immediately had dialled the emergency
services.
[6] The
complainer knew that she would have to fight for her life. She had time to realise that she might be
going to die. She tried to fend off the
appellant as he attempted to pin her down on the seat. He kept repeating: "You are not going to get away with this" and
"You are not doing this to me". The
complainer pled for her life, saying:
"Don't John. Think what they'll
do to you". However, the appellant
pinned her down onto the seat with one arm and started to apply pressure to her
throat under her chin. She was screaming
but lost consciousness. The appellant
then repeatedly struck the complainer on the neck with the saw.
[7] After
between 3 and 5 minutes of the calls to the emergency services, police sergeant
Bruce Robison arrived on the scene. He
initially thought the man inside the complainer's car with the saw was trying
to help by cutting the seatbelt. He then
saw the complainer's face in the foot well in the passenger's side. She was very pale and blue. Her left eye was wide open and fixated. He realised that the man was kneeling on the
passenger's seat at an angle, putting some force into the task of sawing at her
neck. The complainer's neck had a gaping
open wound and the saw, which had blood and tissue on it was being pulled back
and forward. The complainer did not
appear to be breathing or moving and there was no sign of life or struggle from
her.
[8] Sergeant
Robison shouted out and tried to wrench the passenger door open. At this point, the appellant got out of the
driver's door and ran away. Sergeant Robison
radioed for urgent assistance and gave chase.
As the appellant was running away in the direction of the golf course,
he looked back and Sergeant Robison recognised him as his colleague
Sergeant Kelly. The appellant tried to
jump a set of gates into the golf course but fell back. He ran across the road towards Marchfield Road which leads to the rear
of Bannatyne's. Sergeant Robison caught
him on a grass area there and put him to the ground. The appellant initially tried to get back to
his feet, saying: "It's okay Bruce, I'm
not going to do anything". He put up
some minor resistance. Along with an off
duty prison officer, who had appeared on the scene, Sergeant Robison handcuffed
him. Sergeant Robison asked him who was
in the car and he replied: "Audrey,
she's ruined my life". He appeared to be
calm at this time. He was restrained
pending the arrival of other police officers.
He was taken to Loreburn Street Police Station. During the short journey he attempted to open
the back door of the police vehicle, unsuccessfully due to the child lock. He attempted to stuff a handkerchief down his
throat but this was removed by a police officer. He said:
"I am sorry to do this to you, Tommy, but she's ruined my life". On arrival at the police station, the
appellant became agitated and stated: "I
don't want to be here" and "I don't want to do this". He forcibly headbutted the wall beside the
door and had to be restrained. While
being processed, he overheard a radio transmission stating that an ambulance
would shortly be leaving the scene for the hospital. The appellant asked: "Is she dead?"
[9] Meantime
the complainer was lying partially on the seats of her car with her head down
in the passenger side foot well. The
saw, covered in blood, lay on the passenger's seat. The complainer became aware of a fireman
asking her name and of her trying but being unable to speak. She was told that paramedics were
coming. She heard more sirens as she
drifted in and out of consciousness.
People were talking about her dying.
They talked of the hole in her neck and she realised that the wet
feeling on the side of her neck must be blood.
The paramedics arrived and spoke of her blood pressure being low. Someone commented that they had to get her
out of the car. She was lifted backwards
into an ambulance, leaving about a litre and a half of her blood in the foot
well.
[10] The
complainer was taken to the accident and emergency department of Dumfries and Galloway Royal
Infirmary, where she was found to have deep wound approximately 15 centimetres
long on the left side of her neck. It
had stopped bleeding. She was cold,
pale, had a weak radial pulse and low blood pressure. She was resuscitated with intravenous fluids
and the trauma team were summoned. She
had significant blood loss. There was
concern about possible injuries to the major neck vessels and structures. She was taken to the theatre. The wound was located over the left
sternocleido mastoid: the neck muscle which tilts the head. It ran from below the left ear to the front
of the neck. The wound was deep and had
divided the external jugular vein and other superficial structures, including
part of the neck muscle, down to within three to four millimetres of the carotid
artery and the internal jugular vein.
Both of these major structures were, however, intact. The edges of the wound were trimmed before
being sutured with approximately 15 stitches.
A drain was left in place in order to prevent fluid build up, as the
weapon had not been sterile and therefore the chance of infection in the soft
tissues was significant. There was a
smaller and more superficial laceration lying parallel to and underneath the main
wound, together with a number of superficial lacerations over the front
mid-line of the neck and below towards the top of the sternum, all of which
have resulted in the formation of scar tissue.
[11] The
severing of the external jugular vein had caused substantial bleeding. The chances of the complainer having bled to
death would not have been that great.
However, the injury would not have healed on its own without surgical
intervention. The risk of an air embolus
arises where there is an open vein. This
can cause breathlessness, chest discomfort and ultimately acute heart
failure. The internal jugular vein and
carotid artery are both major vessels.
Without urgent and immediate medical intervention, the complainer would
have bled to death at the scene if either or both of these structures had been
severed. It would have been difficult to
inflict the wound on the complainer and a reasonable amount of force had been
applied to cut through the skin and muscle.
The injury was a severe one which had caused danger to the patient's
life. It has caused permanent
disfigurement and may cause numbness to the lower half of the left side of her
face and the lower half of her left ear.
The complainer originally had numbness over the whole of the left side
of her face but the feeling in the top half has now returned. However, all feeling might come back in due
course as the nerves regenerated, but this would take between six months and a
year and was more likely to happen if the nerves have been stretched, as
opposed to severed.
[12] Following
his apprehension the appellant was examined at about 6pm to ascertain his fitness
for detention. He made eye contact,
smiled appropriately and displayed no abnormal thought disorder. He was deemed fit for interview and fit for
detention with thirty minute checks and constant CCTV. There was no mental illness evident that
would affect his fitness for interview, although his mood had clearly been low
for some time. Later that evening, he
was seen by another doctor, to whom he stated:
"It's all over". By this time he
was deemed to be a high suicide risk.
[13] The
police had gone to the appellant's home and recovered two pieces of paper
within a drawer. Some of the writing was
almost illegible but the letters appear to form instructions for the appellant's
will and funeral together with goodbye notes apologising to his parents for
what he was doing and for other friends.
There was also a note addressed to the complainer which ends: "Enjoy the rest of your life Audrey, all you
did was destroy me." The appellant was
interviewed at 10pm on the day in
question. He said that he had been
driving his car along Edinburgh Road towards his home address,
when he saw his former wife driving in the opposite direction in her yellow
mini. He recalled both cars colliding
but could not give any explanation as to how this had happened. He next recalled struggling with the
complainer in her car before Sergeant Robison appeared at the scene and he
attempted to run off. He could not
recall assaulting the complainer with a saw, but admitted that the saw belonged
to him.
[14] On 30 September 2005, the two doctors who had seen him
told the Procurator Fiscal that the appellant was a high risk of self harm and
would pose a danger to the complainer if released. As a result of this and given the extreme
nature of the crime, arrangements were made for the appellant to be examined on
3 October 2005 by Doctor Hall, a
consultant psychiatrist. The appellant
was deemed sane and fit to plead but he represented an ongoing risk to himself
and the complainer. The report stated
that he had suffered psychological distress and disturbance over the period of
the separation and divorce. Doctor
Hall's impression had been that the appellant was a somewhat over-controlled
man, who had found it very difficult to accept the change in his
circumstances. This had resulted in some
depressive symptomatology. The
depressive symptoms and thoughts of suicide had increased following his arrest
and remand in prison, but he was not psychotically depressed. In Doctor Hall's opinion, the appellant was
potentially suffering from a degree of mental disorder in the form of
depression, but this was not of a nature or degree which required treatment in
hospital. Doctor Hall could not explain,
from a psychiatric perspective, why the appellant could not remember the events
of the actual assault.
[15] The
appellant had also been examined by Doctor Derek Chiswick, a consultant
forensic psychiatrist at the Royal Edinburgh Hospital, on 12 October 2005.
He had told Doctor Chiswick that the complainer had crashed into him and
that he could not remember the attack upon her with a saw. In Doctor Chiswick's opinion, the appellant
was sane and fit to plead and, at the date of the offence, was not suffering
from any mental disorder that would affect his responsibility for his
actions. His report further stated that
the appellant was not suffering from any mental disorder of a nature or degree
that warranted psychiatric treatment. He
had been assessed as a suicide risk, but this related to his situation and
circumstances rather than to any underlying mental illness. In the event of conviction, there were no
psychiatric recommendations. With regard
to the appellant's claim of lack of memory, Doctor Chiswick was of the view
that it was very common for people to repress what they found uncomfortable and
unacceptable, but that he would expect the appellant's memory of events
gradually to return in time.
[16] Doctor
Gary Macpherson, consultant forensics clinical psychologist at the State Hospital, Carstairs, also examined
the appellant. His opinion was that the
appellant had experienced a severe adjustment disorder, following his marital
breakdown. Doctor Hall did not dispute
that the appellant might be suffering from some adjustment disorder in response
to his marital situation, but such a condition did not diminish responsibility
for his actions to any significant extent.
Turning to the position of the complainer, she was absent from work
until April 2006 when she began a staged return. She is now back at work on a full time
basis. However, she continues to receive
treatment from a clinical psychologist. She
is permanently disfigured as a result of the scar on her neck. She was too frightened to be discharged from
hospital to her home address until after the appellant had been fully committed
for trial and remanded in custody. She
remains too frightened to stay in her house alone and her mother stays with her
during the day and Mr Graham at night. Her
scar tissue is very sore. She has been
prescribed beta-blockers as she has been suffering from panic attacks and
nightmares. Although previously she was
confident at meetings and presentations, she is now nervous when talking to
others she finds it difficult to be viewed as a victim by other people. She continues to have therapy from her
psychologist once a week and has also seen an occupational therapist arranged
through her work. She is worried about
the burden that she has placed on her close family.
[17] The sentencing
judge summarises the contents of the social enquiry report obtained concerning
the appellant. Although the appellant
was assessed as being at low risk of re-offending in general, the writer
concluded that further offences against the complainer were likely because:
"The appellant still
considers he is the aggrieved party/victim.
He expresses little empathy for his ex-wife and is unable/unwilling to
explore the actual offence. Loss issues -
particularly financial ones are uppermost in his mind. He is emotionally raw and continues to
express a high level of bitterness and blame.
He lacks insight into his behaviour and is unable to consider any
responsibility he has in terms of his circumstances. He is therefore considered at high risk of
repeat offending against his ex-wife and equally to present a high risk of harm
to her in terms of physical (possible fatal) attack, mental abuse and
further incidents of pursuit/stalking".
[18] The
sentencing judge goes on to narrate a number of character references put before
him relating to the appellant. He also
summarises the procedure followed in this case.
He tells us that the plea of guilty tendered by the appellant was the
culmination of discussions between the Crown and the defence dating back
several months. The plea was first
offered and agreed on the first day of the trial 6
June 2006. By that time a
number of witnesses, including the complainer, and a full compliment of jurors
had attended in anticipation of the trial.
Reasons for
the Sentence Imposed
[19] The
sentencing judge states to us in his report that he was unable to categorise
this case as a crime of passion he then continues:
"Certainly, for some
considerable time, the appellant had built up a considerable degree of
resentment or bitterness towards the complainer. His actions appear to have been the
culmination of that build up. But they
occurred long after the discovery of the affair and the break-up of the marriage. It is perhaps not possible to say whether his
actions were premeditated in the sense of being planned well in advance. On the one hand, the appellant must have
known the time and route taken by the complainer after her work. On the other hand, the notes found are not
indicative of an intention to kill the complainer. What is undoubtedly the case is that, at the
time, the appellant's actions constituted a serious and deliberate attempt to
kill the complainer. He would
undoubtedly have succeeded, but for the intervention of Sergeant Robison. He may well have succeeded despite that
intervention, had the skill of the surgeons and other medical staff not saved
her. He has left the complainer with
significant physical and psychological sequellae.
Given the danger that the appellant continued to pose to
his former wife, I gave serious and careful consideration as to whether I
should impose an indeterminate sentence - that is to say a life sentence -
leaving it for the parole board to determine when he should be released. In that event, I would have had to consider
what the appropriate punishment part should have been. The alternative was to impose a determinate
sentence of some considerable length, with an extended period of supervision
for the protection of the public, in particular, the complainer. Having heard all the facts and circumstances
and the plea in mitigation, I decided upon the lesser course of action and
imposed a determinate sentence of 12 years imprisonment, which would have been
14 but for the plea. I also ordered an
extended period of 6 years supervision."
The
Submissions of the Appellant
[20] Counsel
for the appellant acknowledged immediately that the offence was a grave
one. It was contended that the
background showed that this offence was very out of character. The psychological state of the appellant,
which had been investigated, indicated that there was much to be done. The appellant needed and was keen to receive
help. The appellant was a first
offender.
[21] Counsel
then drew to our attention what he suggested was a misapprehension in the mind
of the sentencing judge. He referred to
the passage in the report in which the sentencing judge had stated:
"It is perhaps not
possible to say whether his actions were premeditated in the sense of being
planned well in advance. On the one hand
the appellant must have known the time and route taken by the complainer after
her work. On the other hand the notes
found are not indicative of an intention to kill the complainer."
Counsel explained that the fact of the matter was
that, when the incident occurred, the complainer was not travelling on the
route that she normally took from her work to her home. After work she had visited a friend and was
returning home from the residence of the friend. That explanation of the circumstances was
accepted by the Advocate depute. Thus
counsel for the appellant submitted that the appellant had had no particular
reason on the occasion in question to suppose that he would meet the
complainer. The fact that they did meet
was pure chance. As regards the presence
of the saw in the appellant's car, he had it there for the purposes of D.I.Y
work; he also had other tools and paint
with the saw. One of the circumstances
which might be thought significant was that on the day in question the
appellant had completed his last days work at what had been an habitual place
of work. He was moving to a new work
location as from that date.
[22] It was
submitted to us that while it was accepted that the appellant needed
post-release supervision, the custodial term of the sentence was
excessive. The circumstances did not
disclose any premeditation. However, the
sentencing judge's report appeared to indicate that he considered that the
offence might have been premeditated. The court should take into account the fact
that prior to the tragic event which had given rise to the charge, the
appellant had been a man whose life had been spent upholding the law. In consequence of his actions he had lost his
promising career. Counsel went on to
tender to the court certain reports concerning the appellant's conduct in
custody.
The Decision
[23] Without
doubt, the events which have given rise to this prosecution can only be seen as
a tragedy for both the appellant and his former wife, the complainer. It appears that the appellant, no doubt in
consequence of the ending of his marriage, came to be in a state of mind in
which a chance encounter with the complainer gave rise to the commission of
what can only be described as an horrific crime. So far as the complainer is concerned, she
was subjected to what must have been an utterly terrifying experience, during
the course of which her life was plainly in grave danger, which she must have
realised. While the appellant's actions
may be seen as deriving from the circumstances in which he found himself, he
was not found to be suffering from any mental condition which could be thought
to amount to any kind of explanation for his actions, for which he must therefore
accept full responsibility. Plainly,
against that background, the sentencing judge was justified in imposing a
substantial custodial sentence. In the
debate before us, no criticism was made of his selection of an extended
sentence, or of the period of the extension.
Likewise, no criticism was advanced concerning the level of discount in
the sentence appropriate in the circumstances of a plea of guilty on the first
day of the trial diet.
[24] However,
there is one circumstance which causes us to have concern about the approach
taken by the sentencing judge. In the
passage particularly founded upon by counsel for the appellant, which we have
quoted, the sentencing judge seems to consider that it was, at least, possible
that the offence might have been premeditated.
In view of the clarification of the facts which was given to us, we have
reached the conclusion that there is no factual basis to support the view that
there was any premeditation involved in the circumstances at all. In view of what was said about the
complainer's normal route from her work to her home, it is quite apparent that
the fact that the appellant encountered the complainer driving her car was a
complete chance. Whatever else the
appellant may have been doing at the location of the offence, he cannot have
been looking for the complainer. We
consider that circumstance of some importance.
In the light of it, we have reached the conclusion that the sentencing
judge made his decision under a misapprehension, in this regard, for which he
was not responsible. Unfortunately the
full circumstances disclosed to us were not put before him. In this situation, it is necessary for us to
review the sentence which he imposed.
Having done so, we have reached the conclusion that the sentence imposed
was, in the light of the whole circumstances, excessive. We shall quash that sentence and, in its
place, impose an extended sentence with a custodial term of 10 years
imprisonment and an extension period of 6 years, that sentence to run from the
date selected by the sentencing judge.
In selecting that sentence, we have used a starting point as regards the
custodial term of 12 years, discounted on account of the plea of guilty to the
figure we mentioned.
