APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Justice Clerk Lady Paton	[2013] HCJAC 3 Appeal No: XC446/12 OPINION OF THE LORD JUSTICE GENERAL   in the   APPEAL AGAINST SENTENCE   by   STEPHEN MURRAY Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Drew McKenzie; Paterson Bell (for Blantyre Criminal Lawyers)

For the Crown: Fairley QC, AD; Crown Agent

 

12 December 2012

 

The conviction and sentence

[1] On 25 June 2012 at Glasgow High Court the appellant pled guilty to the following charges:

"(1) On an occasion between 1 December 2010 and 1 April 2012, both dates inclusive, at [a care home in Lanarkshire] you STEPHEN MURRAY did assault [complainer A], in that you did handle her breasts, remove her pants and sexually penetrate the vagina of [the complainer] with your fingers: CONTRARY to Section 2 of the Sexual Offences (Scotland) Act 2009;

 

(2) On an occasion between 1 December 2010 and 1 April 2012, both dates inclusive, at [the same care home] you STEPHEN MURRAY did sexually assault [complainer B] in that you did handle her breasts: CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009;

 

(3) on various occasions between 11 March 2012 and 1 April 2012, both dates inclusive, at [the same care home] you STEPHEN MURRAY, while employed there, did sexually assault [complainer C], in that you did pull down your trousers, expose your penis, remove her pants, climb onto the bed there and lie on top of her, touch her leg, breasts and vagina and you did sexually penetrate her vagina with your fingers and you did attempt to penetrate her vagina with your penis and penetrate her vagina with your penis and you did thus rape her: CONTRARY to Sections 1 and 2 of the Sexual Offences (Scotland) Act 2009."

 

[2] The sentencing judge imposed a cumulo sentence of seven years' imprisonment, discounted from nine years by reason of the appellant's plea of guilty.

 

The circumstances of the offence and the offender

[3] The appellant was employed at the home as a care worker. The three complainers were aged 84, 74 and 65 years respectively. All of them suffered from severe dementia, required round the clock care and were incapable of significant communication. All of them had to wear incontinence pads.

[4] In the late evening of 1 April 2012 the appellant was on duty at the home with two other carers both of whom were women. At about 10.30pm the senior of the two noticed that the appellant was missing from the residents' lounge where he ought to have been. She found him in the room of complainer C . He was standing at the bottom of complainer C's bed with his back to the door. His trousers and pants were at his ankles. Complainer C was lying on the bare mattress, the bedclothes having been stripped off. It appeared that she had been moved off her pillow towards the bottom of the bed. She was naked from the waist down. The soles of her feet were on the mattress with her knees pulled up. Her incontinence pad was lying on the floor. The appellant made an excuse that his trousers had fallen down because his zip had burst.

[5] The senior carer then alerted the two directors of the home and told other members of staff about what had happened. She became distressed and was sobbing when the directors arrived on the scene. They were shocked. One of them, Ms D, started to cry. Later, she asked the appellant "what have you done?" He replied "I'm so ashamed, people will think I am a pervert."

[6] The police were called. Before they arrived, the appellant cut his neck with scissors in an apparent suicide attempt. He was taken to hospital and on the following day underwent surgery.

[7] On 3 April 2012 he was released from hospital and was thereupon detained and interviewed by the police. At this interview he admitted that he raped complainer C on 1 April and that he had attempted to rape her about two weeks earlier. He also admitted the acts libelled in charges (1) and (2).

[8] According to the agreed narrative the immediate families of the three complainers were "shocked, disgusted and devastated by the offences" and "encountered extreme stress and difficulty in relation to sharing the information more widely in the extended families."

[9] The appellant is 44 years old. He appears to be a socially isolated figure. A forensic psychologist's assessment is that he experiences social anxiety disorder (social phobia) but that there is no presence of major mental illness or learning disability. He has no previous convictions.

[10] According to the social enquiry report, the appellant said that he had chosen his victims because of their problems in communicating.

 

Events leading up to the appellant's plea

[11] The appellant appeared on petition on 5 April 2012 and again on 13 April, when he was fully committed. On 18 April sanction for counsel was granted by the Scottish Legal Aid Board. On 10 May the appellant's then counsel, Miss Arrol, advocate, consulted with him in prison. At that stage he had not decided whether he would plead guilty. He wished to have further time to consider matters. On 5 June counsel and her instructing solicitor had a meeting with the procurator fiscal at Hamilton for the purpose of negotiating a plea. At that meeting the procurator fiscal told counsel of the contents of the forensic report, which incriminated the appellant on charge 3, and of the admissions made by the appellant at his two police interviews. At the first of these he had been assisted by the duty solicitor. At the second he was assisted by his own solicitor. It seems that at the time of the meeting the appellant's solicitor had not tried to find out what the appellant had said at the first interview.

[12] The outcome of the meeting was an agreed wording of the indictment that could be the basis of a notice in writing, in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), of the appellant's intention to plead guilty. On the following day counsel and agent met the appellant and received his instructions to plead guilty in the terms agreed. The section 76 letter was delivered to the Crown on 7 June.

 

The Report of the sentencing Judge

[13] The sentencing judge considered that the abuse to which the appellant subjected the complainers was truly shocking. He regarded the breach of trust as being immense. He considered that the extent of the appellant's depravity was evident from the fact that he selected victims who were incapable of communication. He reports that, taking account of the appellant's age and lack of any previous convictions, he felt able to restrict the headline sentence to nine years imprisonment.

The sentencing judge describes his approach to discounting as follows:

"I recognised that there was a utilitarian value to the plea of guilty tendered and that accordingly it would be appropriate to allow a discount from the sentence selected. In light of what was said by your Lordships in the recent case of Gemmell ... I approached the evaluation of that discount with the following understanding:

1. That the appellant was not entitled to any particular level of discount.

2. That the level of discount to allow was a matter for my discretion.

3. That my discretion to allow a discount should be exercised sparingly and only for convincing reasons.

4. That the assessment of the level of discount depended upon how far the utilitarian benefits of an early plea had been achieved."

 

None of these propositions is disputed. He then assessed the discount in the following way:

"Looking to the circumstances of the present case it seemed to me that any trial which had been necessary would not have been lengthy and of course none of the complainers would have been able to testify. That said, there would no doubt have been enormous further distress caused to their families had a contested trial taken place. It seemed to me right to take each of these features into account and also to bear in mind that other savings in preparation for trial would no doubt have been achieved by virtue of the offer made at a very early stage. It did not, however, seem to me that the relevant features translated with ease into any particular percentage figure. Furthermore I was conscious of the disproportionate effect which a fixed percentage deduction could have on an otherwise well merited lengthy sentence. In this regard I took account of the risk to the credibility of the court's sentencing decisions which the Lord Justice Clerk (Gill) identified and addressed in paragraphs 74 to 76 of his opinion in the case of Gemmell.

In attempting to strike an appropriate balance between all of the competing interests in the present case it seemed to me that I should try to identify a period which was sufficiently substantial to reflect the benefit to the administration of justice which was present but which did not dilute disproportionately the view I had arrived at as to the appropriate starting point sentence. A period of two years appeared to me to strike that balance."

 

The Note of Appeal

[14] The Note of Appeal is as follows:

"It is accepted from the outset that the starting point of 9 years' imprisonment is not excessive and no issue is taken with this.

It is, however, submitted that, absent any factors which would suggest a restriction in such discretion, a discount in the region of one third, as opposed to one quarter, would have been appropriate in circumstances where the Appellant pled guilty by way of s 76 procedure."

 

[15] In his comments on the Note of Appeal the sentencing judge explains that he did not fix the period of discount on the basis that it was in the region of one quarter of the starting point. A discount of one quarter would have reduced the sentence to 6 years 9 months. The sentencing judge did not assess the discount on a percentage basis on the view that such a discount became disproportionate where the headline sentence was lengthy. In his view, the absolute length of the discount, rather than its length as a proportion of the starting figure, was the decisive consideration.

 

Gemmell v HM Adv (2012 SLT 484)

[16] In Gemmell v HM Adv the whole question of discounts for early pleas was reviewed by five judges. I expressed the view that the determination of the starting point and the appropriate discount were separate processes governed by different considerations (at para [37]). I considered that the circumstances of the offence and the offender determined the headline sentence; but that such matters were not relevant to the amount of the discount. The amount of the discount was governed solely by the utilitarian benefits that resulted from an early plea (ibid).

[17] I also expressed my concern that Spence v HM Adv 2008 JC 174 might have created a climate of expectation amongst practitioners. I repeated that the accused is not entitled to any particular discount in return for a plea of guilty (paras [29], [31]). I considered that the Court's discretion was not wholly unfettered. It should be exercised in accordance with broad general principles (para [32]). In any given case, the discount would be the greater the earlier the plea was tendered (para [41]). I thought that, since there would always be some benefit in an early plea, if only in the administrative benefits that resulted from it, an accused should be given at least a token discount (para [43]). The level of benefit that an early plea brought would depend on the circumstances of the given case. For example, the fact that complainers and other witnesses were spared the ordeal of a trial was, in general, a relevant consideration; but it was not relevant where the potential witnesses were police officers or experts for whom the giving of evidence would have been at most an inconvenience (at paras [45]-[46]). I also expressed the view that in order to maintain public confidence in the justice system and the credibility of sentences that the court imposed, the court's discretion should be exercised sparingly and only for convincing reasons (paras [74]-[77]). These propositions were, I think, assented to by my colleagues in the case.

 

The case for the appellant

[18] The written submissions for the appellant have been drafted by Miss Claire M Mitchell, advocate. First, Miss Mitchell submits that the sentencing judge wrongly took into account the length of the trial that had been avoided by the guilty plea. This was not a relevant factor. It could not be right that those who would have had shorter trials would receive lesser discounts or vice versa. The practice of summary courts was to grant a one-third reduction frequently even where the likely length of trial would be less than an hour. In this part of the submission, Miss Mitchell notes that she has asked the agents to detail the progress of the case between the petition date and the offer to plead. That was a sensible request that in the event has gone unheeded, as I shall relate.

[19] Second, Miss Mitchell submits that the sentencing judge's concern as to the "disproportionate effect which a fixed percentage deduction could have" disclosed an error of approach. The sentencing judge had, in effect, reduced the discount so that the resultant sentence would not be too low. This amounted to adjusting the discount because of the circumstances of the offence and the offender. Other cases where the court had restricted the discount because of its disproportionate effect on the ultimate sentence had concerned lengthy sentences of the order of twenty years.

[20] More generally, Miss Mitchell submits that an accused who pleads guilty by notice under section 76 of 1995 Act commonly receives a discount of one third. If there are no special circumstances, that is the discount that such an accused should receive. Counsel submits that this would be consistent with my comments in Gemmell v HM Adv (supra) on the need for broad general principles. In any event, according to counsel, there is a tension between my observations and those of Lord Eassie. The decision in Spence v HM Adv (supra) has not been overruled.

 

Conclusions
[21] There are only two points in the note of appeal; namely (1) that the appellant tendered an early plea and should therefore have received an appropriate discount; and (2) that the appropriate discount should have been one-third. In my opinion, both of these points are groundless.

 

Early plea
[22] In a sense this was an early plea; but it was by no means as early as it could have been. When the appellant appeared on petition he had already confessed to these offences. It was open to him to plead guilty to them there and then. Instead, nearly two months passed before the section 76 letter was delivered. The reason for that delay is that the defence were considering the appellant's position. That consideration included the meeting with the procurator fiscal on 5 June to negotiate a plea. The appellant himself, according to counsel, had asked for time to consider his position at his first meeting with counsel in the prison. The decision to pled guilty was taken only after the defence were informed of the results of the forensic tests and had been told of the substance of the appellant's first police interview.

[23] In the circumstances that I have described, it is obvious that this cannot be regarded as a plea that was tendered at the earliest opportunity. I discussed this point in HM Adv v Thomson (2006 SCCR 265) and again in Gemmell v HM Adv (at para [42]). It is apparent that on this point, the appeal has been brought on a misunderstanding.

 

One-third discount

[24] As was explained in Gemmell v HM Adv (at para [78]), Spence v HM Adv (supra) is not at odds with Gemmell itself so long as it is interpreted correctly. Spence v HM Adv did not lay down a mandatory sliding scale. It reserved the decision to the discretion of the sentencer in every case. In the circumstances of this case, a discount of one third was out of the question. As I said in Gemmell v HM Adv (at para [42]), if those representing an accused person choose to make further inquiries and investigations, they must realise that time is not on their side.

[25] In any event, this appeal is misconceived because it is founded on the idea, which I thought we had clearly discredited in Gemmell v HM Adv (at paras [29]-[31]), that an early plea entitles every accused to a discount of one-third. That is not the case. Since there was no question of any of the complainers having to give evidence the utilitarian value of the plea, for the purposes of discounting the sentence, was greatly reduced.

 

Appeals based on the amount of the discount
[26] In my view, this was an ill-advised appeal. It was presented in the face of the principle recognised by this court that it is only in exceptional cases that the court will interfere with a discretionary decision on discounting for which the sentencer has given cogent reasons.

 

The headline sentence
[27] I conclude therefore that this appeal should be refused. That leaves the question of the headline sentence fixed by the sentencing judge. In my opinion, the figure of nine years is unduly lenient. The crimes to which the appellant pled guilty were vile. They involved a grievous abuse of trust. The appellant committed these offences against helpless women whom it was his duty to treat caringly and respectfully. His conduct is aggravated by the fact that, on his own admission, he chose his victims because they were incapable of any meaningful communication with others. The consequences of these crimes on others should not be underestimated. It is little wonder that the appellant's conduct put at least three of his colleagues into a state of shock. The effect upon the immediate families of the complainers has been severe.

[28] In my view, the headline sentence in this case should be twelve years. Some discount is however appropriate for the fact that the accused pled by section 76 letter. In the circumstances, I consider that the appropriate discount would be a period of two and a half years.

 

Disposal

[29] I propose to your Lordship and your Ladyship that we should refuse the appeal; quash the sentence and substitute a sentence of nine years and six months.

 

The appeal hearing
[30] On any view, this was an important appeal against a sentence imposed on grave charges. Leave to appeal was granted at the second sift. The application was supported by an Opinion of Miss Mitchell. The burden of it is set out in the written submissions that I have summarised. We were told that Miss Mitchell had withdrawn from this appeal some six days earlier. At the hearing, the appellant was represented by Mr Drew McKenzie, advocate. He had been instructed only on the previous afternoon. It was soon apparent to us that he had not been properly briefed. He had been given none of the information specifically asked for by Miss Mitchell and had not been given all the relevant documents. We had to adjourn the appeal for some time to enable him to read the social enquiry and psychological reports and other papers, and to enable those instructing him to obtain details of the preparation of the defence in the period between the petition stage and the tendering of the plea.

[31] I have some sympathy with Mr McKenzie in his predicament. It is unfortunate that he was instructed so late and that he was not given proper instructions. Something has gone seriously wrong. I express no criticism of any individual; but I remind practitioners of the comments of Lord Penrose in similar circumstances in Smith (CC) v HM Adv (2004 SCCR 521, at para [18]).

" ... the appeal court is entitled to expect that those instructed to argue an appeal against sentence will be fully briefed as to what happened during any trial, the agreed factual basis on which any plea of guilty has been tendered, what happened during the hearings before the trial judge, and the appellant's instructions on issues relevant to mitigation which are liable to be raised during the hearing of the appeal."

 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Justice Clerk Lady Paton	[2013] HCJAC 3 Appeal No: XC446/12   OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK   in the   APPEAL AGAINST SENTENCE   by   STEPHEN MURRAY Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Drew McKenzie; Paterson Bell (for Blantyre Criminal Lawyers)

For the Crown: Fairley QC, AD; Crown Agent

 

12 December 2012

[32] I agree with your Lordship in the chair and have only one additional observation. It is that, when the court is considering an appeal by a convicted person against sentence, it is looking to see whether a miscarriage of justice has occurred by reason of that sentence being excessive, inappropriate or unduly lenient, as the case may be. This exercise does not involve simply correcting any flawed part of the sentencing exercise carried out by the court of first instance and adjusting the sentence imposed according only to that correction. The court requires to look at the entire process in order to decide whether the sentence ultimately imposed is sustainable. Where an appeal is directed specifically towards the discount afforded or the headline punishment selected, the question of whether the net penalty was warranted is likely to involve an examination of both elements.

 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Justice Clerk Lady Paton	[2013] HCJAC 3 Appeal No: XC446/12 OPINION OF LADY PATON   in the   APPEAL AGAINST SENTENCE   by   STEPHEN MURRAY Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Drew McKenzie; Paterson Bell (for Blantyre Criminal Lawyers)

For the Crown: Fairley QC, AD; Crown Agent

 

12 December 2012

[33] I agree with your Lordships, and have nothing to add.