Appellant: C M Mitchell; Drummond Miller, Edinburgh

Respondent: G Wade, AD; Crown Agent

18 April 2013

[1] The circumstances of the offence (namely culpable homicide) are clearly set out in the trial judge's report. On the face of it, this was a very grave matter, and the 10 years imprisonment imposed could not prima facie be regarded as excessive.

[2] However, Miss Mitchell on behalf of the appellant submitted that certain factors had not been given sufficient weight by the sentencing judge.

[3] First, there had been repeated requests to the police by Lynn McMillan, asking them to intercept and stop the deceased (i.e. her jealous ex-partner) who had been making persistent threats to both her and the appellant by means of texts and other methods. That situation was vouched before us (but not before the trial judge) by a letter of apology from Strathclyde Police dated 21 December 2012.

[4] A second matter drawn to this court's attention was the particularly vulnerable situation in which the appellant and Lynn McMillan found themselves. They were having sexual intercourse when the deceased smashed his way in through the back door of Miss McMillan's home and set about the couple with a baseball bat.

[5] A third factor drawn to our attention was that the Crown had to some extent acknowledged the unusual circumstances of the attack, in that the Crown accepted that two out of the three requirements for self-defence had been fulfilled. In particular, (1) the appellant and Miss McMillan were under attack, and (2) there was no means of escape. However, the Crown did not concede (3) the question whether the appellant used force grossly in excess of what was required to protect himself and Miss McMillan. (The jury in fact found that there had been excessive force.)

[6] Nevertheless in that context, a fourth factor was drawn to our attention by Miss Mitchell. There was evidence from pathologists that someone such as the deceased could keep attacking the couple with the baseball bat even after having been stabbed many times. That could, to some extent, account for the multiple stabbings and, as is noted in the judge's report, the appellant's position was summarised in his evidence when he said "I felt I was punching him but that I was doing no damage and I was still getting hit".

[7] A fifth factor drawn to our attention was that the risk assessment in the criminal justice social work report appeared not to pay proper attention to the unusual circumstances leading to the appellant's behaviour on 31 January 2012. Connected with that is a sixth factor, namely that the previous conviction which the appellant had for violence in 2010 related to a street fight, which was a very different situation from that in the present case, where an aggressive attacker broke down the door of Miss McMillan's home and set about the couple in their own home.

[8] A seventh factor which we take into account are the injuries suffered by the appellant and Miss McMillan, and also the damage to the house, all inflicted by the baseball bat.

[9] In all the circumstances, we are persuaded that these factors should have been given greater weight by the sentencing judge. In this tragic and unusual set of circumstances, we shall quash the sentence of 10 years and substitute therefor 7 years. The appeal is allowed to that extent. The sentence will be backdated as before.

DAW