For the appellant:  Ogg, (sol adv); Callaghan McKeown, Renfrew

For the Crown:  Kearney (sol adv) AD;  Crown Agent

9 May 2014

Introduction

[1]        On 12 May 2011 the appellant was convicted of the murder of Samantha Wright and of defeating the ends of justice by, inter alia, mutilating and attempting to conceal her body.  On the murder charge he was given a life-sentence with a punishment part of 23 years, three years of which was attributed to matters covered by the second charge.   On the second charge he was sentenced to six years imprisonment to run concurrently with the life sentence. 

[2]        On 28 March 2014 this court refused his appeal against sentence so far as it was based on the application and interpretation of section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.  The court continued the appeal for further submissions in relation to the subsidiary matters contained within the remaining ground of appeal.

The trial judge’s sentencing statement

[3]        When passing sentence, the sentencing judge said inter alia:

“On charge 1 the sentence of the court is life imprisonment.  This is the second time that such a sentence has been passed on you.  In addition, to reflect solely the needs of retribution and deterrence, I require to fix the minimum period which you must spend in prison before you can even be considered for the possibility of release on licence by the Parole Board.  I have had regard to all that was said on your behalf.  This included the different circumstances of your previous conviction of murder in 1974, when you were aged 22; your age now; and your health problems.  I was also referred to the appeal court’s approach in the case of Alan Cameron v HMA.  Given that you maintain your denial of guilt Mr Smyth said nothing further in mitigation on your behalf.

I have also had regard to your full personal circumstances and background, all as set out in the social enquiry report.  Throughout you have expressed no guilt, remorse or contrition.  It was only through skilled and dedicated police, forensic and legal work that you were brought to justice.  All those involved deserve great credit.  Because of the consequences of the passage of time, and unless and until you give a truthful account, we will never know exactly what happened that night.  However your conduct after Samantha’s death satisfied the jury that you are guilty of murder and it satisfies me that this was a depraved and dreadful crime.  In addition your previous conviction for murder weighs heavily against you …”

[4]        In his report to this court, the sentencing judge says:

“Although I sentenced only in respect of the appellant’s conduct at the time of the murder, the whole circumstances indicated that it was likely to have been a violent assault on a young woman, who previously was unknown to the appellant, and whom he had invited to his home.  As stated at the time of sentencing, I regarded this to be a depraved and dreadful crime, which had devastated the lives of Samantha Wright’s family and many friends.”

Submissions for the appellant

[5]        The solicitor advocate for the appellant submitted that the punishment part of the sentence was excessive having regard to the fact that the cause of death could not be ascertained; the delay before trial and the sentencing judge’s approach to the period of time that the appellant had spent on remand. 

[6]        Since there was uncertainty as to the circumstances in which the appellant killed the deceased, it was not appropriate to impose a punishment part outwith the range that was normal in cases of murder where there were no unusually aggravating circumstances (Cameron v HMA [2011] HCJAC 29 para 44). 

[7]        In the present case, as in Cameron, the cause of death could not be established because of the injuries inflicted post mortem.  Death by natural causes could not be excluded.  Contrary to the sentencing judge’s conclusion in his report, the degree of violence was not known.  Therefore the punishment part was excessive.

[8]        The appellant had been on licence since 1983.  His previous conviction for murder in 1974 was not of an analogous nature.  He was then aged 22.  That conviction was an aggravation but it did not merit the punishment part imposed.

[9]        Moreover, the trial judge should have taken account of the delay in bringing the appellant to trial and the lengthy period it took for trial proceedings to be concluded.  The appellant’s 545 days in custody before the trial caused him to suffer anxiety (Mills v HMA 2001 SCCR 821 at 830A.) 

Submissions for the Crown
[10]      The advocate depute submitted that the sentencing judge had acted within the range of reasonable discretion that was open to him, having regard to the circumstances of the murder and the available guidance for sentencers (Jakolev v HMA 2011 SCCR 608).    When fixing a punishment part sentencing judges must have sufficient discretion to allow the circumstances of the case to be appropriately taken into account (HMA v Boyle 2010 SCCR 103, at para 17).  There were aggravating factors that justified the punishment part and distinguished this case from Cameron v HMA (supra).  The appellant and the deceased were strangers.  The deceased was a vulnerable individual.  (HMA v Boyle (supra) and Jakolev v HMA (supra))  She was significantly younger than the appellant.  There were indications that she suffered a violent death.  The bloodstain on the mattress was consistent with a significant wound.  Her body had been dismembered in an attempt to conceal the crime (HMA v Boyle (supra)).  The appellant had a previous conviction for murder.  He made no admission of guilt and expressed no remorse. 

[11]      The sentencing judge was not obliged to take into account the delay in the case reaching trial.  The 18 months period between the appellant’s being charged and the start of the trial did not pass the “relatively high” threshold test for excessive delay test set out in Dyer v Watson (2002 SCCR 221).

Conclusions

[12]      The solicitor advocate for the appellant has relied to a great extent on the case of Cameron v HM Adv (supra) and on the sentence imposed in that case.  The circumstances in the present case bear certain similarities to those in Cameron; but it seems to us that the appellant’s previous conviction for murder necessitates our imposing a significantly greater punishment part than was imposed in that case.  Furthermore, the acts libelled in charge (2) in our view greatly increase the gravity of the matter. 

[13]      Applying the methodology that I set out at paragraph [28] of my Opinion in our previous decision in this case, we are in no doubt that a punishment part of 23 years was appropriate in the circumstances.  We are further of the view that on charge (2) a concurrent sentence of six years was appropriate.  Accordingly those sentences will stand.

[14]      There remains the question of back-dating.  The sentencing judge reports that in imposing those sentences he took into account the 545 days that the appellant spent in custody before sentence; but we do not know to what extent he did so.  In these circumstances, we consider that the only safe and proper course is to back-date the appellant’s sentence.  We shall back-date it to 13 October 2009, the date on which his licence was recalled.  Quoad ultra we shall refuse the appeal.