APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hardie Lord Emslie	[2011] HCJAC 90 Appeal No: XC99/11 & XC96/11 OPINION OF THE COURT delivered by LORD HARDIE in APPEALS AGAINST SENTENCE by FIRST: VLADIMIR JAKOVLEV and SECOND: ALEKSANDR PODGORNOI Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: Scott, Solicitor-Advocate, Collins, Solicitor-Advocate; Capital Defence Lawyers

Second Appellant: Shead, M C MacKenzie,; John Pryde

Respondent: Prentice, QC, Solicitor-Advocate, Advocate Depute; Crown Agent

16 September 2011

Introduction

[1] On 12 November 2010 the appellants appeared for trial at Edinburgh High Court and on 3 December 2010 they were convicted unanimously of a charge of murder in the following terms:

"On 2 April 2010 at 1 Beattie Court, Hawick [they] did assault Christopher James McColm, then residing there, and did force entry to the property there, repeatedly punch and kick him on the head and body, repeatedly stamp on his head and body and repeatedly strike him on the head and body with a metal pole, a mirror, a portable heater and a clothes horse or similar implements, whereby he was so severely injured that he died on 3 April 2010 within the Western General Hospital, Edinburgh and [they] did murder him."

[2] The second named appellant was also convicted of related bail aggravations in respect that he had been granted bail on 15 December 2009 at Kilmarnock Sheriff Court and on 15 March 2010 at Jedburgh Sheriff Court. On 3 December 2010 the trial judge adjourned the diet until 20 January 2011 for the purpose of obtaining social inquiry reports. On 19 January 2011 the diet of 20 January 2011 was discharged under section 75A of the Criminal Procedure (Scotland) Act 1995 and 26 January 2011 was assigned. On that date the appellants appeared for sentence at Livingston High Court and were each sentenced to the statutory sentence of life imprisonment and in respect of each of the appellants the sentencing judge fixed the punishment part at 19 years. He also ordered deportation of each appellant at the conclusion of his sentence. The appeal against sentence by each appellant was directed at the period fixed by the sentencing judge as a punishment part.

Circumstances of offence
[3] Before considering the submissions in support of each appeal it is appropriate to set out the factual background of this case. In his careful and detailed report the trial judge narrated the circumstances of the deceased, the events on 2 April 2010 resulting in the murder of the deceased, the aftermath of the attack upon the deceased, the medical evidence and the results of the post-mortem examination of the deceased. The relevant parts of the judge's report were in the following terms:

"The deceased
The deceased Christopher James McColm resided at the locus at 1 Beattie Court, Hawick. The property was a ground floor flat in a block of four owned by the local authority. He lived there alone with his pet dog. Mr McColm was a troubled young man. Over the years he had problems with drink and drugs. Some five years prior to his death he had been seriously assaulted and had never fully recovered psychologically. He was very much a loner and socialised very little. He did however have two sisters who lived locally (both gave evidence) and they were clearly very attached to him. They saw him regularly and did their best to keep him safe and well. His home however was always in a state of considerable disarray. It was generally untidy and unclean, all of which was a reflection of his various difficulties. At the time of his death he had been free of alcohol for eighteen months, but still used cannabis on a daily basis. From the time Mr McColm moved into Beattie Court he claimed to have difficulties with the occupants of the flat upstairs. To what extent these difficulties were real, or a reflection of his own psychological difficulties, is hard to say. When he first moved into the block the upstairs flat was occupied by a middle aged lady who lived alone. She was however regularly visited by her grandchildren and Mr McColm constantly complained of noise from upstairs. There is some suggestion that he may have been overly sensitive and a little obsessive on the topic. About nine months prior to his death the upstairs neighbour moved out and an Eastern European man and his girlfriend took over the flat. There may have been other Eastern European workers staying in it at various points. It was latterly occupied by Podgornoi [the second named appellant] and it was the flat into which, the day prior to the murder, Jakovlev [the first named appellant] also moved. Mr McColm continued to complain to his sisters that there was constant noise from this flat. He claimed that the occupants were always having parties and playing music. His sisters were unsure to what extent this was true. ... About 3.00pm on the day of his death his sister Carol Ann Walker encountered him by chance in Hawick. Rather poignantly, given what was to follow, Mr McColm was looking particularly well. He was clean and tidy, which according to his sister was unusual. He was in buoyant mood. It appeared that he had an appointment with a resource worker who was confident that she could arrange to have him re-housed in another part of Hawick. Mr McColm was very excited at the prospect and, for once, optimistic about the future. Sadly, the next time Ms Walker saw her brother he was dying in the Western General Hospital, Edinburgh.

2 April 2010
The murder took place on Friday, 2 April the day after Jakovlev's arrival in Scotland. He and Podgornoi spent the night of 1 April in the flat. It is not clear whether they were drinking in the course of that night, but it seems likely. The following morning at around 10 o'clock they made their way to Morrison's Supermarket. It appears that their sole purpose in going there was to buy alcohol. Evidence of one of the checkout operators at Morrison's suggested that, even at this early hour, both men were drunk, with Jakovlev in particular being heavily under the influence. While there they encountered another man by the name of Olegs Bolsokovs. He too was buying alcohol. There seems to have been some conversation between all three and, having each purchased a large quantity of alcohol, including vodka, cider and wine, they parted company. It is not entirely clear but it is likely that Podgornoi and Jakovlev returned to Beattie Court and began drinking there. In any event, Bolsokovs gave evidence that later in the afternoon the two men arrived at his flat. They had a quantity of drink with them. All three engaged in conversation and spent the afternoon drinking. They appeared to have been drinking both vodka and cider. Podgornoi and Jakovlev left together at a time which is likely to have been around 4.00pm. The next sighting of the two accused was around 4.40pm. The witnesses Allan and Diane Nichol lived together in a flat close to Beattie Court which overlooks a series of grassy areas and paths, one of which leads to Beattie Court. Mrs Nichol was looking out of the window when she saw two men on the grassy area, some distance away. They were acting unusually and at first she thought they were fighting. She called her husband, who also came to look. In due course, Mr and Mrs Nichol realised that the men were only "play fighting". One of them had a bottle which, from its shape, seemed to be a wine bottle. They were laughing, joking and clearly drunk. Both men made their way in the direction of Beattie Court.

The court heard evidence from Scott Carter, a 28 year old student who had lived at Beattie Court for five months. He lived on the first floor, opposite the flat occupied by the accused; his flat was therefore not directly above that of Mr McColm. He knew Mr McColm in passing, but described him as a quiet individual who very much kept himself to himself. He could be seen regularly out walking his dog, but had little to do with the other neighbours. Mr Carter was aware that the flat opposite him and above Mr McColm had been occupied for two or three months by Eastern Europeans. His only knowledge of problems between them and the deceased was that he had heard an argument between them the week before. This took place outside the block and appeared to be about noise. One of the people Mr McColm was arguing with was the appellant Podgornoi. Podgornoi appeared to be drunk and was being "a bit of a pest" and was "annoying Chris". Eventually, however, he seemed to be apologising to Mr McColm.

As it happened, on 2 April Scott Carter was preparing to vacate the flat at Beattie Court. He had been there for much of the day and in the course of the afternoon was packing his belongings. Some time between 4.00pm and 5.00pm he became aware of people talking outside under his bedroom window. They were speaking quite loudly in a foreign language, which he concluded was Eastern European. He had heard it before and was familiar with it. He was not concerned and did not look out of the window. There were two voices, one of which he recognised as that of Podgornoi. There was a conversation between Podgornoi and another male, which lasted two or three minutes. The voices then stopped.

Mr Carter then heard what sounded like a door being chapped. This was very shortly after the conversation outside had ceased. Following the chap on the door, he then heard voices again, this time raised. It sounded like an argument. He could make out three distinct voices; two of them were Eastern European and one was undoubtedly Mr McColm. One of the Eastern Europeans was speaking in English. Mr Carter had no specific recollection of what was said, but formed the impression it was an argument about noise. At this point Mr Carter was still in his bedroom but moved to his front door to hear better what was going on downstairs. He heard Mr McColm's voice; he was saying, "Get out my house, leave me alone, just get out my house". Mr McColm said this several times. Mr Carter then heard what sounded like a fight breaking out. He heard a great deal of banging and could hear the dog barking. At this point he heard Mr McColm shouting, "Get off me, get off me, leave me alone". He was shouting very loudly and sounded "panicky, worried". Mr Carter realised this was more serious than just an argument and decided to immediately phone the police. The police arrived some five minutes or so after the call. In the intervening period Mr Carter could still hear banging and shouting and, in particular, someone in a foreign accent shouting "Fuck you, fuck you" over and over again. The noise seemed to cease shortly prior to the arrival of the police. Mr Carter heard what sounded like two people emerging from Mr McColm's house and walking upstairs to the flat opposite his. They were in the flat a couple of minutes and left. He heard them walk downstairs. They were talking to each other as they went. Disturbingly, notwithstanding the fact that they had just administered a dreadful beating to Mr McColm which would in due course lead to his death, the appellant and his co- accused were laughing and joking, talking to each other in their own language. According to Mr Carter, "They seemed like they were right pleased with themselves. They had not a care in the world". Mr Carter then saw them walk across a grass area and disappear into an area of housing beyond it. It was at this point that the police arrived.

Mrs Rachel Cadger had, along with her grandson, been visiting her friend Norman Turnbull in a house just opposite Beattie Court. At around 5.00pm she was leaving and made her way to her car, which was parked outside Beattie Court. She was accompanied by Mr Turnbull. They too saw the appellant and his co-accused emerge from the flat and saw them drinking from a large bottle. Again they saw them make off across the car park, over a wall and disappear from view.

The aftermath
Police Constables Gillian Oliver and Suzanne Kay were on duty at Hawick Police Station when at 1650 hours they received an emergency call to attend at 2 Beattie Court in relation to a violent incident which was said to be taking place. The police station is approximately half a mile from the locus and they estimated that they arrived at Beattie Court perhaps three or four minutes after receiving the call. The officers did not see the accused leaving, but one was aware of seeing two males in the distance walking away over the grassed area. The significance of these males was not of course known at the time.

The police officers entered the close and initially went to the wrong flat. A young man (presumably Mr Carter) shouted down from upstairs and directed them to Mr McColm's flat. The door was shut over and at first appeared to be locked. They banged on the door several times, but the only response was that of a dog barking. They eventually tried the door and found that it was open. It later emerged in evidence that the door in fact had been forced by the appellant and his co-accused. It had been locked by both mortise and Yale locks, both of which had been broken in the course of forcing the door. Whether the accused did this immediately upon arrival, or whether Mr McColm at some stage managed to shut the door against them only to have it pushed in later, was not clear. In any event, police officers entered and made their way along the hall. They checked various rooms as they went, eventually arriving at the livingroom. There they saw Mr McColm lying on the ground. The room was in a dreadful state of disarray. Mr McColm was lying on his back with his feet towards the hallway. When they first saw him he was attempting to get up. He was clearly in great distress and unable to do so. He was trying to turn his head to look at the police officers and move his arms and legs. It appeared that he was trying to sit up to see who had arrived. He was fully dressed, but somewhat curiously was wearing a top that appeared to be pulled down over his wrists, around his forearms. His hair was heavily matted with blood and behind his head on the floor were pools of congealed blood. The right side of his head was massively swollen and his eyes were closed. Blood was visible in his mouth and teeth. He had a very bad cut to his hand. One of the police officers addressed him by name and attempted to find out what had happened. Mr McColm spoke but was indistinct and was making gurgling noises. Police officers could make out that he was saying, "Help me. I'm struggling, I'm struggling". One of the officers explained that they were there to help him and asked who had done this to him. He replied, "I don't know". His breathing at first was rapid, but in a fairly short course of time became even more rapid. When the police saw the extent of his injuries they urgently summoned an ambulance. One of the police officers turned him on his side to check his injuries and saw very extensive bruising up his right side and back. She described his body in this area as being "actually black". An ambulance arrived very quickly and Mr McColm was taken to hospital. It was clear to the officers from the state of the room that there had been a very violent incident. Various items were scattered around and a bamboo shelving unit had been pulled over. They also noted that there was a metal pole on the floor on which there appeared to be blood. There was also on the floor a broken wall mirror. Outside in the hall was a broken heater.

The officers at the scene gleaned what information they could from witnesses and circulated a request that officers be on the lookout for the two accused. Sergeant James Dewar was instructed to drive around the area in the hope of finding the two accused who were by now suspects. In due course he saw the two accused in an area near an industrial estate around four or five minutes walk from Beattie Court. He alighted from his vehicle with a colleague and headed towards an embankment which borders a small stream. There he saw two men who fitted the description that he had been given. They were standing beside a bridge and appeared to be drinking from a bottle of wine and cans of lager. Other officers arrived on the scene within a few moments of Sergeant Dewar's arrival. Both males were detained and conveyed to Hawick Police Station.

Medical evidence
The ambulance service at Hawick received an emergency call at around 5.00pm. An ambulance was immediately dispatched from a nearby depot and arrived some two minutes later. They remained at the scene tending to Mr McColm until around 5.30pm. Paramedics found that Mr McColm had obvious and extensive facial injuries. His right eye was swollen to the extent that it was closed. There was blood around his mouth. This suggested that his airway might be at risk. He was clearly finding it difficult to breathe; his breathing was shallow and fast. Within a short while there were signs that his body was going into shock. It was clear that he was seriously injured and had to be taken to hospital urgently. He was immobilised by the placing on his neck of a cervical collar and he was placed in a full body splint. He was rushed to the Borders General Hospital at Melrose under police escort. En route the paramedics had given an estimated time of arrival and asked that an emergency team be made ready and waiting to receive Mr McColm. In the course of the journey Mr McColm was quiet, not speaking and his level of consciousness was decreasing. That alone told the paramedics that his condition was worsening.

Mr McColm arrived at the hospital at 5.50pm. He was examined by the emergency team. He was breathing noisily and rapidly, suggesting a problem with his lungs. His conscious level was reduced. He scored 4 out of 15 on the Glasgow Coma Scale, the lowest possible score being 3. There appeared to be injury to the right of his chest and crepitation which was highly suggestive of lung injury. It was thought likely that air was leaking from his lungs. He had extensive bruising on his right side, bruising to the right of his face and multiple lacerations on his scalp. A chest drain was inserted and he was intubated to maintain his breathing. He was attached to a ventilator. Because of the decreased level of consciousness it was decided to carry out a CT scan. His pupils were becoming dilated which suggested that there was elevated pressure upon his brain. He was taken to the radiology suite, and a scan carried out on his brain, lungs and abdomen. The CAT scan revealed the following significant injuries -

(1) a subdural haematoma on the right side, that is to say a bleed within the patient's cranium;

(2) a right-sided haemopneumothorax, that is to say blood was also gathered in his pleural cavity;

(3) two fractures to a rib on his right chest and a flail segment, that is to say a whole section of rib which could move independently of the chest wall and compromise his breathing.

Contact was made with neurosurgeons at the Western General Infirmary in Edinburgh and following discussion it was agreed that Mr McColm should be immediately transferred there. The injuries were severe and life-threatening and required immediate specialist treatment.

On arrival at the Western General Hospital, Edinburgh Mr McColm was examined jointly by a neurosurgical registrar and a professor. He was taken immediately to theatre for surgery. Various external injuries were noted (which I shall detail later). His pupils were fixed and dilated. He had by now a Glasgow Coma Scale of 3, that is to say, the lowest possible score; he was not responding to any stimuli. It was clear therefore that there was already significant damage to his brain. He was unconscious and not moving. Investigations suggested he had almost no function in his brain stem. The pupils remained dilated for two hours and he failed to respond to any treatment. The conclusion reached by the neurosurgeons was that the injury was very severe and not survivable. In some situations it is possible to open the head and evacuate the haematoma. It was agreed that such an operation was not possible for Mr McColm; the damage was already too bad and no operation would change the outcome. By this stage his life was being maintained artificially. His family arrived from Hawick and after discussion it was agreed that life support should be withdrawn. Mr McColm died later that evening.

Pathology
A post mortem examination was carried out on Christopher McColm on 5 April 2010 and a joint report forms Crown Production No.96. The detail of this report reveals the full brutality of the attack upon him. There were a total of 43 external injuries, distributed over his entire body. The conclusion of the pathologist was that the deceased had multiple blunt force injuries all over his body, principally on his head, but additionally on his trunk, arms and legs. They comprised a mixture of bruises, abrasions and lacerations, the appearances of which suggested repeated blows from an object or objects, possibly added to by kicking, punching and stamping. Internally there was associated damage inside the head and chest from which he died.

The external injuries included bruising at the top and front of his head, extensive bruising on both sides of the head, particularly the left where it extended forwards to the eye and bruising behind the right ear, around the right eye and on the nose and lips. There were additional gaping lacerations at the back of the head on either side and smaller lacerations above both ears and over the right eyebrow. Some of the bruising had a distinctive pattern, notably a "tramline" bruise at the front of the right side of the head. This comprised parallel lines of bruising separated by a band of pallor and indicated blows from a long, rounded object such as a pole. Other injuries may have been caused by the same implements or by other objects. Bruising at the sides of the head, over and around the ears, could have been the result of stamping.

Elsewhere on the body there were further clear tramline bruises, including one on the left side of the chest and a line of four on the outer part of the right thigh, one above the other. There were additional less distinctive bruises on the left side of the chest, over the right hip and extensively on the back of the right shoulder, on top of and back of the left shoulder and on the arms and legs. Again, all of these are likely to have been caused by a mixture of blows from a pole or similar object, possibly blows from other objects and stamping and kicking. The injuries on the forearms and hands could well have been defensive in nature.

Internally there was a severe head injury with a skull fracture in front of the right ear and a large blood clot lying over the right side of the brain. The latter had, in turn, produced secondary pressure effects elsewhere in the brain, with physical displacement, infarction and deep haemorrhages. This accounted for his irreversible unconsciousness and was the final mechanism of his death. Subdural haemorrhage results from the brain moving around inside the head, with tearing of blood vessels on the surface. While the likelihood is that in the case of the deceased it was related to direct blows on the head, the possibility that the mechanism was actually a heavy fall at some stage cannot be entirely excluded.

Beneath the injuries on his face there was a fracture of the right cheekbone and in his throat there was some bruising of the deep tissues there. On the right side of his chest there were fractures of one of the ribs at the front end and of four at the back likely to have been caused by blows, kicks or stamps. Clinically, the rib fractures had been associated with leakage of blood and air into the chest cavity and the resulting breathing problems may well have had some contribution to his death."

Submissions on behalf of the first named appellant
[4] The written submissions submitted in advance of the appeal hearing acknowledged that the injuries sustained by the deceased were consistent with a conclusion that he had received multiple blunt force injuries and that there had been a prolonged and vicious attack upon him. It was also accepted on his behalf that the post-mortem examination supported a conclusion that a weapon such as a pole had been used in the attack and that the remaining injuries were consistent with punches, stamping and kicking. The trial judge acknowledged that he did not consider that the limited schedule of previous convictions was of any significance and in that situation it was submitted that the selection of 19 years as a punishment part was excessive. The written submissions also asserted that the sentencing judge had placed too much weight upon the demeanour of the appellants after the commission of the offence and that he had erred in concluding from the evidence to the effect that the appellants were speaking in their own language and laughing afterwards that the appellants had attacked the deceased "in effect, for sport". Mr Scott supplemented the written submissions on behalf of this appellant by adopting the approach which he understood would be taken by Mr Shead on behalf of the second-named appellant. In particular, Mr Scott relied upon the observations of the Lord Justice Clerk in Cameron v HMA 2011 HCJAC 29 where a punishment part of 25 years was reduced to 14 years. In addition Mr Scott relied upon Walker v HMA 2002 SCCR 1036, Flynn v HMA 2004 SCCR 702 and HMA v Boyle 2010 SCCR 103. In Cameron the Lord Justice Clerk had suggested that 14 years was an appropriate period as a punishment part where there were no unusually aggravating circumstances, whereas in Boyle the court had inter alia increased punishment parts of 15 years and 12 years to 20 years and 18 years respectively where a severely injured victim had been set on fire whilst still alive. These cases gave an indication of the range of punishment parts appropriate to particular circumstances. Mr Scott accepted that 14 years would not be appropriate as a punishment part here, having regard to the extent of the violence and the brutal nature of the murder. The extent of the violence in this case, it was accepted, amounted to exceptional circumstances. When asked about his view of the appropriate level of the punishment part in this case, Mr Scott ventured to suggest that it should be in the range of between 16 and 17 years.

Submissions on behalf of the second-named appellant
[5] In submitting that the punishment part selected by the sentencing judge was excessive Mr Shead relied upon the written submission in which reference had been made to Cameron v HMA (op. cit.). Mr Shead submitted that there was guidance from earlier decisions on punishment parts to enable the court to identify the appropriate point in the range available. In Boyle the Lord Advocate took advantage of the opportunity presented by the appeals in that case to invite the court to give guidance under section 118(7) of the Criminal Procedure (Scotland) Act 1995 on punishment parts in murder cases (para. 6). Prior to Boyle, the leading case had been Walker. In Walker the court indicated that there might be a number of murder cases of such gravity that the punishment part should be fixed in the region of 20 years. The examples cited had been where the victim was a child or a police officer acting in the execution of his duty or where the murder weapon was a firearm. These observations had been approved in Boyle at paragraph [13]. Thus Boyle made it abundantly clear that the punishment part selected in the present case was excessive. Furthermore, as regards knife crime, the case of Boyle added another category to the categories identified in Walker.

[6] Mr Shead further submitted that in determining the appropriate punishment part it was appropriate to keep in mind that this was a murder of an individual, as distinct from a case involving more than one victim. The court had to consider all relevant circumstances. The decision in Cameron simply indicated that the appropriate punishment part was 14 years in the case of the murder of an individual where there were no exceptional circumstances. The present case was not atypical of murders. The period selected by the trial judge as a punishment part was outside the appropriate range. Accordingly the period should be reduced.

Discussion
[7] In Stewart v HMA 2002 SCCR 915 the court recognised at paragraph 18 that there could be "a wide variation in the seriousness of a murder case according to the circumstances in which it took place and the circumstances of the offender". Accordingly the court observed that it was necessary to take into account all relevant circumstances when fixing the appropriate punishment part. Although this may be considered to be a statement of the obvious, we consider it worth emphasising in the context of this case where the submissions on behalf of the appellants, particularly the submissions by Mr Shead, appeared to suggest that the observations of the court in Walker and in Boyle should be applied more rigorously than merely treated as guidelines for sentencers leaving it to the discretion of the sentencer to specify longer or shorter periods in particular circumstances. In Boyle, having indicated that a punishment part of 16 years should be considered the norm or starting point for determining the punishment part in all but the most exceptional cases of murder by stabbing, the court also acknowledged the pre-eminence of the sentencer's discretion when it observed at paragraph 17:

"The foregoing are guidelines and should be treated as such. The circumstances in which murders are committed and the circumstances of offenders vary substantially. It is important that sentencers should retain sufficient discretion in selecting a punishment part as to allow them to take the particular circumstances appropriately into account."

[8] Before we return to the particular circumstances of this case, it is appropriate to consider the extent to which the court has provided guidance to sentencers faced with determining an appropriate punishment part in murder cases. In Walker the court allowed an appeal against a punishment part fixed at 30 years and substituted a punishment part of 27 years. In doing so, the court said:-

"[8] In the absence of significant mitigation most cases of murder would, in our view, attract a punishment part of 12 years or more, depending on the presence of one or more aggravating features. In the individual case account has also to be taken of the seriousness of the offence combined with other offences of which the accused has been convicted on the same indictment, along with any previous convictions of the accused, in accordance with the terms of section 2(2) of the 1993 Act [Prisoners & Criminal Proceedings (Scotland) Act 1993], as amended, to which we have referred. As the sentencing judge suggests in his report in the present case, a number of murder cases might be of such gravity - for example, where the victim was a child, or a police officer acting in the execution of his duty, or where a firearm is used - that the punishment part should be fixed in the region of 20 years. However, there are cases - which may be relatively few in number - in which the punishment part would have to be substantially in excess of 20 years.

[9] We are in no doubt that in the present case the factors highlighted by the sentencing judge put it clearly into the latter category of case. We have taken into consideration that in the case of the murders committed by Robert Francis Mone and Howard Charles Wilson, the punishment part was fixed at 25 years. However, these cases have not been the subject of consideration by the appeal court, and there is, as in many instances, difficulty in comparing the nature and gravity of one case with those of another.

[10] In all the circumstances we are satisfied that the sentencing judge was well justified in selecting as the punishment part a period in excess of 25 years. In saying that we have particularly in mind the fact that this was a deliberately planned execution of a number of soldiers acting in the course of their duty and that it was done in order to achieve gain. On the other hand, it is not impossible to conceive circumstances in which there might be greater aggravation, let alone the existence of significant previous convictions. In all the circumstances we have reached the view that the punishment part of 30 years, which the sentencing judge fixed with some hesitation, was excessive. We will quash the order for that period and substitute an order of 27 years".

The decision of the court in Walker was thereafter interpreted as indicating that in the absence of significant mitigation, the minimum period to be fixed as a punishment part of most life sentences would be 12 years. Moreover the implication of the comments in paragraph [10] quoted above was taken to be that 30 years should be regarded as virtually the maximum period that should be imposed as a punishment part: cf. HMA v Al Megrahi, quoted in Boyle at paragraph [10]. Thus the available range was seen to be between 12 and 30 years with the punishment part being fixed in the region of 20 years where the gravity of the offence merited such a period. Examples of such cases were cited in Walker as including the murder of a child or a police officer acting in the execution of his duty or a murder where a firearm had been used. We note that the figure of 20 years is approximately mid way between the then stated minimum and implied maximum.

[9] Importantly, matters have moved on since the case of Walker was decided. The guidelines have changed in significant respects. At paragraph [13] of its opinion in Boyle the court disapproved of the suggestion in Walker and Al Megrahi that 30 years was a virtual maximum punishment part. Even more recently the appeal court has approved 35 years as an appropriate starting point for the punishment part of a life sentence imposed in respect of the murder of a mother and child (Smith v HMA [2010] HCJAC 118). Moreover, in relation to the lower end of the scale, we have noted above that in Walker the court seemed to suggest that 12 years was the appropriate starting point for determining the punishment part in most cases of murder. In Boyle the court doubted whether that had been the court's intention and observed at paragraph [14]:

"The first sentence of paragraph 8 of Walker may carry the implication that a punishment part of 12 years is the norm or starting-point for determining the punishment part in most cases of murder; the reference to '12 years or more, depending on the presence of one or more aggravating features' might be read as suggesting that "in most cases" the period would be longer than 12 years only if there was one or more aggravating features. We doubt whether it was the court's intention to set any such norm. In any event we would not regard 12 years as an appropriate 'starting-point' for "most cases of murder". A substantial number of murders - we have in mind in particular those arising from the use by the offender of a knife or other sharp instrument with which the offender has deliberately armed himself (discussed below) - would justify a starting-point of a significantly longer period of years. A punishment part as low as 12 years would not be appropriate unless there were strong mitigatory circumstances, and a punishment part of less than 12 years should not be set in the absence of exceptional circumstances - for example, where the offender is a child".

[10] In our view the decisions in Boyle and Smith make it clear that in normal circumstances the available range for a punishment period should now start at a higher figure than 12 years and should no longer be subject to a maximum figure as low as 30 years. It is therefore a little surprising that in Boyle the court bore to endorse "the exemplification given in the penultimate sentence of paragraph 8 of Walker of the types of murder which might attract a punishment in the region of 20 years" (paragraph [13]). Mr Shead relied upon that passage, and upon the passage from Walker itself, as indicating that 20 years was the appropriate punishment part for the murder of a child or of a police officer acting in the execution of his duty or for a murder where a firearm was used and he submitted that the present case was not within that serious category. We would make two observations about this matter. The first, taking child murders as an example, is that having increased both the lower and upper limits of the approved range, it seems highly improbable that the court in Boyle then designedly set out to downgrade the relative seriousness of such murders without offering any justification for doing so. Much more likely, in our opinion, is that the court's intention was simply to endorse the view in Walker that such murders should attract a punishment part somewhere in the middle of the range deemed appropriate from time to time. On that approach, the equivalent level today would be in the region of 25 years, being the mid-point between 14, the minimum period suggested as appropriate in Cameron, and 35 being the period approved by the court in Smith. In this latter context, we are not of course treating 35 years as a virtual maximum of the appropriate scale available to sentencers: rather we have used that figure because it is currently the highest that has been approved in any case by the appeal court.

[11] The second observation which we would make in relation to the penultimate sentence of paragraph [8] of Walker is that the examples given by the court of particularly grave murder cases are merely examples. We reject the submission by Mr Shead to the effect that they should be construed as an exhaustive list where a punishment part at a certain level would be appropriate. It is neither necessary nor appropriate to provide an exhaustive list of such cases, but we can envisage that there may be victims who are particularly vulnerable by reason of their mental state or lifestyle whose murder might be akin to the murder of a child. Equally there might be weapons used which merit a punishment part equivalent to the punishment part appropriate to cases where a firearm is used. The law and the approach to sentencing should be sufficiently flexible to deal adequately with changes in society and in the behaviour of persons committing criminal acts, including the means by which they commit murder. By contrast, the approach advocated by Mr Shead of confining cases within the middle range of seriousness to the three categories mentioned by the court in Walker tends to suggest that sentencing guidelines involve a mechanistic approach to sentencing, as opposed to a structure for the exercise of judicial discretion. While the sentencing judge must have regard to sentencing guidelines and other guidance provided by the appeal court to assist in the exercise of his or her discretion, the sentencing judge alone retains the responsibility for determining the appropriate sentence in any case (HMA v Boyle; HMA v McKenzie 1990 JC 62; HMA v Graham 2010 HJAC 50). As the Lord Justice Clerk observed in Luke Mitchell v HMA [2011] HCJAC 10 "there are frequently special factors in individual cases that are not expressly dealt with in guidelines" ([paragraph 15]). The critical question for this court is whether the sentencing judge acted within the range of the discretion available to him, having regard to the circumstances of the murder and taking into account the available guidance for sentencers in such cases, including the apparent approval of this court to the tendency for the length of punishment parts in all murder cases to increase with the passage of time (Boyle; Smith; Luke Mitchell; McDonald & Anderson v HMA [2011] HCJAC 71).

[12] We now turn to consider whether there is merit in the submission that in selecting the period of 19 years as a punishment part for each appellant the sentencing judge erred in the exercise of his discretion. Every case of murder is distinguished by its own particular facts and circumstances but we are in no doubt that the sentencing judge was correct to regard this as a dreadful and brutal crime for which there was no rational motive. The deceased was clearly a vulnerable individual who was disturbed by what he perceived to be excessive noise from the flat above his home. His annoyance and upset occasioned by what he perceived to be excessive noise pre-dated the occupation of the flat by the second named appellant. It appears that the deceased was constantly complaining about noise and would frequently bang a stick on his ceiling to the extent that Eastern Europeans, who had occupied the flat prior to the arrival of the second named appellant, nicknamed the deceased "woodpecker". Nevertheless the evidence did not disclose any conduct on the part of the deceased which could have been anticipated to lead to violence against him. On the date of the murder the deceased was in the safety of his home when the appellants, who were seriously under the influence of alcohol, were overheard talking in their own language immediately before banging on the deceased's door. This was followed by raised voices and a violent attack upon the deceased, after forcing their way into his home. Historically such actions amounted to the crime of hamesucken, which was a capital crime even where the victim did not die. Although hamesucken is no longer charged as a specific crime, it is nevertheless still regarded as an aggravated form of assault. The next significant feature of this case is that, on the evidence, this would appear to have been an unprovoked concerted attack by the appellants upon a vulnerable man. The third factor is the persistence of the attack and the level of violence used. There were a total of 43 external injuries distributed over the deceased's entire body. The blunt force violence included the use of weapons with which to strike the deceased on the head and body as well as kicking, punching and stamping upon him. There were fractures of the right cheek bone, of one rib at the front of his chest and four at the back including two fractures to a rib on his right chest and a flail segment enabling a whole section of the rib to move independently of the chest wall and compromise his breathing. In addition there was a skull fracture in front of the right ear and internally there was a severe head injury producing haemorrhaging and pressure in the brain. Having regard to the nature of the attack and to the features to which we have referred we do not consider that the sentencing judge can be said to have erred in concluding that a lengthy punishment period was appropriate in this case, and that no rational distinction fell to be drawn here between one appellant and the other. Moreover we are unable to conclude that the punishment period chosen by the sentencing judge was outwith the reasonable range available to him in the exercise of his discretion.

Decision
[13] In the foregoing circumstances we shall refuse these appeals against sentence.