APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord CarlowayLord Menzies
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Appellant: IM Paterson, solicitor advocate; Patterson Bell
Respondent: Hughes AD; Crown Agent
9 May 2012
[1] On 15 September 2011, after a trial at the
High Court in Dunfermline, the appellant was found
guilty of 3 charges. The first of these was possession of heroin at
Castleview House in Edinburgh on 11 January 2011. The second was, on the
same day and at the same place, assaulting the now deceased William McPhee
by repeatedly struggling and attempting to punch him, repeatedly punching and
kicking him on the head and body and repeatedly biting him on the body and
threatening him. The co-accused, William McArdle was found guilty of the
murder of Mr McPhee by stabbing him thereafter. The third charge was,
again on the same date and at the same place, of assaulting the complainer,
Colin Stewart, by repeatedly threatening him and stabbing him on the head and
body with a knife, pursuing him and striking him on the head with a dog chain,
all to his severe injury, permanent disfigurement and to the danger of his life
and attempting to murder him. The libels on the assault charges stated that the
appellant had previously evinced malice and ill-will towards both the deceased
and the complainer. The appellant was also on bail at the time of each offence.
On the 10 October 2011, the trial judge
admonished the appellant on the first charge and sentenced her to 9 months
imprisonment on the second and 9 years imprisonment on the third. These
sentences were to run concurrently.
[2] The judge reports the circumstances as
involving the appellant, who was aged 19, being in a relationship with her
co-accused, Mr McArdle, who was aged 25. They lived together in a
flat in Gilmerton. The deceased was aged 43 and occupied a flat in the
same block, along with the complainer, who was the same age. The deceased and
the complainer were cousins, from the travelling community and both were heavy
drinkers and heroin users. The deceased and the complainer had gone to another
flat in the block, which was used for drinking and drug taking. The appellant was
also there. Mr McArdle had been in the vicinity of this flat, although he
had not visited it. He became involved in assaulting a third party, whom he
thought had been in a relationship with the appellant. He had then left to go
to his mother's house in Granton.
[3] The appellant asked the complainer, who had
said that he was going to the shops, to get her a bar of chocolate. She gave
him a pound to buy a 99p bar. However, realising that he also required to buy
bread, the complainer later only produced a 50p bar for the appellant on his
return to the flat. On learning this, the appellant became suddenly and
inexplicably enraged. She telephoned Mr McArdle in Granton to come and
deal with the situation, claiming that she had been assaulted. She left the
flat and returned with her bull terrier and a knife. Mr McArdle made his
way back from Granton and there was some kind of confrontation outside the
block of flats between him, the appellant and the deceased. The deceased
returned to the flat which he shared with the complainer. The deceased and the
complainer then went downstairs to placate the appellant regarding the
chocolate bar.
[4] What followed thereafter was that the
complainer encountered the appellant and Mr McArdle in a corridor. The
appellant said to McArdle, something along the lines of: "that's the bastard,
stab him, stab him". Mr McArdle did just that, some 6 times; these
wounds being in the area of the chest and causing profuse bleeding. The
appellant joined in this attack and struck the complainer on the head with the
dog chain. The complainer collapsed. The appellant and Mr McArdle then
turned their attention to the deceased, who was also stabbed, this time
fatally. The appellant was acquitted in any involvement in the stabbing of the
deceased, although convicted of the initial concerted assault upon him.
[5] The complainer was taken to hospital,
promptly, and his wounds were treated. He did have a pneumothorax, but
ultimately, as chance would have it, none of the wounds caused serious damage
and he was discharged from hospital on the following day. There is no doubt, however,
that his life had been in danger.
[6] In selecting the sentence he did, the trial
judge explains that the appellant had reacted in an unreasonable and aggressive
fashion to, what the judge describes as, an utterly minor matter and had been
responsible for the continuing argument. The appellant had enlisted
Mr McArdle to assault the deceased and the complainer in a significantly
violent manner. She had also obtained the dog chain and the knife. She had
not just been a participant, but a significant driving force, in relation to
the events which occurred. On the other hand, the trial judge accepted that
after the incident was over and the extent of the injuries were known the
appellant had been shocked about what she had done. In that regard, the court
notes the terms of the social enquiry report, which state that the appellant
had come from a troubled background, especially caused by her father's heroin addiction.
She had continued with a chaotic lifestyle on returning to Scotland from her father's address
and taking up with Mr McArdle.
[7] The appellant has several convictions for
public disorder and had been on deferred sentence for separate contraventions
of sections 3 and 5 of the Emergency Workers (Scotland) Act 2005 at the time of this offence.
She had also recently completed periods of probation for shoplifting and
breaches of section 41(1)(a) of the Police (Scotland) Act 1967.
[8] Against this background, it was argued that
the sentence of 9 years was excessive. This was contended, having regard especially
to the chaotic background which had then engulfed the appellant. It was
pointed out, and the court accepts, that, since her incarceration, the
appellant has tried to turn herself around and has, as it was put, "thrown
herself fully into prison life" in the hope that she will be "far stronger a
person on her release". She has seen a psychologist and has undertaken courses
with a view to obtaining an HNC in hairdressing and following the career path
of her mother. At the time of the offence the appellant's relationships with
her family had been at a low ebb and there had also been a change in that; with
her mother contacting her on a daily basis and also visiting her in prison. The
appellant's attitude was said to have undergone a dramatic change. Reference was
made, as a comparative case, to HM Advocate v Mullen 2007 SCCR 330; a Crown appeal which a 49 year old first offender, who had
been the actor in a stabbing involving wounds of a similar number but to the
abdomen of the victim, had received a sentence of five years.
[9] It was submitted that one option, which had
been open to the trial judge, had been to impose an extended sentence. So far
as the latter is concerned, this is not a ground of appeal and the court does
not have the trial judge's view on to that matter. It does not consider that
it can entertain a submission of that nature at this stage.
[10] In relation to Mullen, the court does
not derive great assistance from it because of the different circumstances. It
involved a middle aged first offender, who was reported to have been living
quietly with his wife and son at the time of the offence and had had many
positive aspects to his life.
[11] The court is impressed with the change which
is reported in the appellant's lifestyle and approach. However, the court has
to take into account that this appellant has been convicted of attempted murder.
That conviction is based on the fact that she specifically obtained the assistance
of her then boyfriend to come from Granton to Gilmerton to deal with the
persons whom she regarded as having insulted or assaulted her in some manner.
The court is particularly concerned that the appellant is reported to have told
her co-accused to stab the complainer, Colin Stewart, and that is precisely
what the co-accused then did, repeatedly. It is also not without significance
that she was involved, to a degree, in assaulting the now deceased
William McPhee. In all these circumstances, the court does not consider
that this sentence can be described as excessive. It will therefore refuse the
appeal with the observation that, if the appellant continues with her progress,
she will be an obvious candidate for early release when the parole board come
to consider her situation.
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