Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 126

HCA/2014-2436/XC

Lord Bracadale
Lady Clark of Calton
​Lord Wheatley

OPINION OF THE COURT

delivered by LORD BRACADALE

in a Crown Appeal in terms of sections 108 and 110

of the Criminal Procedure (Scotland) Act 1995 against Sentence

by

HER MAJESTY’S ADVOCATE

Appellant;

against

A.J.V.

Respondent:

Appellant:  Fairley QC, AD;  Crown Agent

Respondent: McConnachie QC, Labacki;  Paterson Bell

18 November 2014

Introduction
[1]        On 3 April 2014 after trial at the High Court at Glasgow the appellant was convicted of a charge of murder in the following terms:

"On 20 September 2013 at [ an address in ] Glasgow you did assault M V, formerly residing there, your wife, pursue her, seize hold of her by her arms and repeatedly strike her on the body with a knife and you did murder her and you did previously evince malice and ill-will towards her".

[2]        The appellant had no previous convictions.  On 1 May 2014, after considering a criminal justice social work report, the trial judge sentenced the appellant to life imprisonment and ordered that he serve a punishment part of 12 years in terms of section 2 of the Prisoners’ and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act).  The Crown have appealed in terms of section 108 and 110 of the Criminal Procedure (Scotland) Act 1995, contending that the punishment part was unduly lenient.

The evidence
[3]        The respondent was aged 46 years at the date of the offence.  He had worked for many years in the Department of Work and Pensions.  The deceased had also worked there at one time.  She had gone on to take a course at university.  The respondent and the deceased, who were separated at the date of the offence, had been married for about 20 years and had one child, JV, aged 11 years at the time of his mother’s death.  The family home had been extended on one side by the addition of a “granny flat” which was occupied by the respondent’s father, GV.

[4]        At the beginning of October 2012 the deceased met ER, a Polish woman, at a party.  The two women struck up a friendship;  in the period which followed ER became a frequent visitor to the household of the respondent and the deceased and came to be regarded as a close friend of the family.  In or around December 2012 the relationship between ER and the deceased became intimate.  In May 2013 the deceased moved out of the family home and went to stay at the flat of her sister, CM, in Rutherglen.  The deceased stayed with her sister for a few days before moving in with ER in Edinburgh;  both the respondent and JV, however, were under the impression, encouraged by the deceased, that she was continuing to live in her sister’s flat.  A routine developed whereby the deceased would come to Glasgow on Tuesday and Friday evenings to see JV, who also stayed with her every second weekend at CM’s house.

[5]        During the evening of 19 September 2013 JV was familiarising himself with his new iPad when he inadvertently intercepted e‑mail messages sent between his mother and ER; these were of an obviously intimate nature.  JV showed the messages to the respondent.  The respondent repeatedly tried to call the deceased’s mobile phone but she did not answer.  A series of text messages were then exchanged between the respondent and the deceased in which the respondent requested a meeting and in which, when the deceased refused to meet, he both criticised her for having an affair and threatened to kill himself.

[6]        After taking JV to school on the morning of Friday 20 September 2013, the respondent took the day off work.  He transferred money from his own bank account into those of his son and his father.  He wrote letters to each of them.  He gave evidence at trial that he planned to consume a quantity of valium and prescribed tablets along with vodka and to take his own life by stabbing himself with a kitchen knife.  The respondent continued to send numerous texts to his wife demanding an explanation for her conduct but she did not reply.  At around 11.00 am he sent the deceased a text:

“My death is solely your responsibility and my blood will be on your hands until the day you die.  You cannot even begin to understand what you have done to me”.

At some point the respondent printed out a series of the intercepted messages and tore his wife’s image from several photographs which had been on display in the family home.  The respondent’s father returned home from meeting friends and was surprised to find the respondent upstairs in bed.  The respondent had apparently passed out after consuming a quantity of medication and alcohol.

[7]        Earlier in the week it had been arranged that on Friday 20 September 2013 JV would go to the house of a friend after school.  The friend’s mother, AT, was to bring JV home at about 8.30 pm.  The deceased arrived at the family home in the early evening in order to see JV.  On the respondent’s account in evidence, they argued in the bedroom and she left, saying that she would return when JV was due back.  The respondent claimed that the deceased had removed, from beside the bed, a knife which he had intended to use to stab himself;  thereafter, he had passed out again.  A text sent by the deceased to ER at 7.35 pm suggested that she had admitted their affair to the respondent, under explanation that it had started in late July or early August 2013.

[8]        When the deceased returned to the family home JV had not yet arrived home.  She sat in the living room and watched television.  GV heard her come in; he came through from his flat and spoke to her.

[9]        At around 8.10 pm a neighbour heard a series of three screams coming from the house, followed by a woman’s voice saying “No, don’t”.  The neighbour went to her front window and saw a car draw up outside.  This was AT dropping off JV, who got out of the car and went to the front door of the house.  The house was in darkness and no one answered the door to him.  JV went round to his grandfather’s flat.  A few minutes later, GV appeared at the front door of the family home to admit JV.  GV signalled to AT to come in.  AT, who was a nurse, entered the house, taking her daughter with her.  GV told her that the deceased was in the living room and seemed unwell.  AT sent her daughter and JV upstairs and examined the deceased.  She found the deceased slumped on the sofa with a major, bleeding wound to her lower back.  An ambulance was called.  Paramedics found the deceased dead.  The respondent, who had remained upstairs, appeared to be unresponsive but was still breathing.  He was transferred to an ambulance and was subsequently found to have two superficial wounds to his chest and abdomen.

[10]      A post‑mortem examination of the deceased was conducted by Dr Marjory Turner.  Dr Turner gave evidence that the deceased had sustained four stab wounds on her body, three to the front and one to her back, along with possible “fingertip” bruising to her upper arms.  Two of the wounds to the front were superficial but the third stab wound had penetrated her rib cage and injured her right lung.  The fourth wound, to the back of her chest, had been fatal:  it had cut her lung and thoracic aorta and death had resulted from the ensuing haemorrhage.  Dr Turner’s evidence was that the blow would have required mild to moderate force with a sharp implement.  It would not have been survivable, even with medical attention.  The pathologist said that the wound to the back showed signs of movement which were consistent with having been inflicted while the deceased was trying to escape.  The wounds were inflicted by a kitchen knife with a 12 cm long blade.

[11]      In his evidence the respondent said that he woke up and heard the deceased and GV talking.  He went downstairs to the living room and asked his father to leave so that he and the deceased could speak in private.  They argued again and, according to his account, the respondent went into the kitchen to recover the knife which had earlier been placed there by the deceased.  His purpose in doing so was that he could complete his plan to kill himself.  The respondent said that on his return to the living room the deceased confronted him and they struggled.  He dropped the knife; the deceased picked it up and he tried to recover it.  The respondent said that the deceased concealed the knife behind her back and in the course of the struggle she fell back on to the sofa, coming to rest with the handle of the knife visible at her side.  The respondent maintained that he pulled the knife from her and went back upstairs to the bedroom where he had attempted to stab himself before passing out again.  The respondent’s position was that he had been unaware that his wife had sustained any injury when he left the living room.  Essentially, the position of the respondent was that the stab wounds had been inflicted by accident.  By their verdict the jury rejected the evidence of the respondent in this respect.

The trial judge’s directions on culpable homicide
[12]      The trial judge left open to the jury the possibility of returning a verdict of culpable homicide.  He did so on two bases.  He directed the jury that if they were satisfied that the respondent assaulted the deceased but were not satisfied that he did so with the wicked intention to kill or the wicked recklessness necessary for murder, it would be open to them to return a verdict of culpable homicide.  He further directed the jury that it was also open to them to return a verdict of culpable homicide on the basis that the respondent had killed his wife whilst acting under provocation arising from the discovery of marital infidelity.  By their verdict the jury rejected both of these possibilities.

The trial judge’s approach to sentencing
[13]      The basis on which the trial judge selected the punishment part of 12 years was that the respondent was a first offender who had previously been an upstanding, law‑abiding member of the community.  He was a family-orientated man whose life had revolved around his relationship with his wife and son.  The incident had happened at a time of unimaginable stress in his life.  The information relating to his wife’s relationship with ER had come to his attention on the previous day completely out of the blue and in distressing circumstances.  The trial judge accepted that the intention of the respondent was to end his own life.  While recognising that the murder had been committed by the use of a knife to inflict a number of injuries, the trial judge considered that murder was a unique episode which occurred in very unusual circumstances.  The knife which had been used to murder the deceased had been initially obtained by the respondent with a view to committing suicide.

Submissions
Crown
[14]      Before us the advocate depute developed three arguments.  First, the trial judge erred in concluding that the wickedness of the crime was substantially reduced or mitigated by reason of the prior conduct of the deceased, that conclusion having been rejected by the jury by their verdict.  The question of provocation had been presented to the jury on an esto basis.  The position of the respondent had been that the death was caused by accident.  In his speech senior counsel for the respondent had gone on to submit to the jury that, if they rejected the respondent’s account of accident, they could consider provocation based on the discovery of marital infidelity.  The trial judge had given appropriate directions in that regard.  The jury had plainly rejected provocation.  The advocate depute relied on HM Advocate v Williamson 2011 SCCR 563 in which the court held that in the light of the jury’s verdict rejecting a plea of provocation it was not open to the sentencing judge to reduce the punishment part on the basis that the wickedness of his crime was substantially mitigated by the conduct of the deceased, to which the respondent’s reaction was, as the jury had found, either grossly disproportionate or calculated revenge.  The advocate depute submitted that the only difference between Williamson and the present case was the species of provocation.  It was impossible to distinguish this case from Williamson.  What the trial judge had done was precisely what the court in Williamson had said was not appropriate.  The trial judge should have put out of his mind the question of marital infidelity.

[15]      Secondly, the trial judge erred in determining that the case was “exceptional” such as to justify departure from the general guidance given by the court in HM Advocate v Boyle, Kelly and Maddock 2010 SCCR 103.  In doing so the trial judge placed excessive reliance on Broadley v HM Advocate 2003 GWD 34 - 965.  The advocate depute submitted that what had been said in Boyle about the use of a knife could be applied in the domestic situation.  The use of a lethal weapon was an aggravating factor.  In addition, there were multiple wounds.  After stabbing her the respondent had failed to seek medical attention for the deceased.  He did so in the knowledge that her 11 year old son would shortly be returning to the house and would find the body.  The respondent continued to deny responsibility for his actions.

[16]      The trial judge had placed inappropriate weight Broadley (supra).  The question in Broadley, which was a defence appeal, was whether the sentence was excessive.  The appellant in Broadley had become preoccupied with killing his wife to the extent that he had consulted a psychiatrist about it.  The similarities between the respondent’s case and Broadley were superficial.  Broadley was decided seven years before Boyle.

[17]      Thirdly, the trial judge had erred in taking into account and placing weight upon the issue of public protection in setting the punishment part of the sentence.  At paragraph 24 of his report he said:

“I do not expect that [the respondent] will ever offend again.  Nothing in his past suggests that he is likely to do so”.

In the context of imposing a punishment part that was an irrelevant consideration.  The punishment part of a life sentence was such part as the court considered appropriate to satisfy the requirements for “retribution and deterrence” taking into account the factors referred to in section 2(2) of the 1993 Act.  The separate issue of public protection was a consideration for the Parole Board (section 2(5)).

Respondent
[18]      Mr McConnachie QC on behalf of the respondent accepted that the punishment part was lenient but submitted that it was entirely justifiably and appropriately so.  Williamson did not support the Crown’s contention.  If that were so, in a case in which the jury were directed that provocation was open to them, the trial judge would be disqualified from taking into account the circumstances leading up to the death, while, in a similar case in which no such directions were given it would be open to the sentencing judge to take these circumstances into account.  That would be an absurd result.  Nor could it be the case that because a jury had made a decision on the facts, when it came to the broader exercise of sentencing the trial judge had to lay these facts aside.  The judge was not looking at the circumstances to assess the level of wickedness;  he was looking at the whole circumstances relevant to sentence having regard to the requirements of retribution and deterrence.

[19]      The case of Boyle was not of great assistance to the Crown or the trial judge.  It was accepted that Boyle made it clear that a punishment part of 12 years was not an appropriate starting point (paragraph [14]).  The reference to “exceptional” in paragraph [14] was to punishment parts of less than 12 years.  A punishment part of 12 years would require “strong mitigatory circumstances”.  In paragraph [16] the court was specifying a particular type of knife crime with which the court was all too familiar.  That was where, usually young men armed themselves with bladed instruments and went into the streets and, as a result, someone was stabbed.  It was in such a case that a punishment part of less than 16 years would require exceptional circumstances.  Here, by contrast, the case was of a first offender in his home in circumstances in which he came to use a knife to cause the death of his partner.

[20]      In paragraph [17] of Boyle the need to retain sufficient discretion in sentencing was stressed.  Sentencing was influenced by experience and expertise.  The trial judge had sat through the trial and formed a view of the circumstances and what appropriate inferences could be drawn.  The mitigatory factors identified by the trial judge were not only of a kind of which could be described as “strong mitigatory circumstances”, they were “exceptional”.

Discussion and decision
[21]      In terms of section 2 of the 1993 Act a court which sentences a person to life imprisonment for murder is required to specify part of the sentence which must be served before the case can be considered by the Parole Board.  For present purposes, that part of the sentence was a period that the trial judge considered appropriate to satisfy the requirements of retribution and deterrence taking into account the seriousness of the offence and the previous convictions, if any, of the life prisoner (section 2(2)).

[22]      We have set out above the approach which the trial judge took to selecting the punishment part of 12 years.  The trial judge was dealing with a genuine first offender aged 46 years.  The respondent had an excellent work record and had been, as the trial judge put it, an upstanding, law‑abiding member of the community.  He had been a family‑orientated man whose life had revolved around his relationship with the deceased and their son JV.  By all accounts the respondent had been a model husband and father.  There appeared to have been no history whatsoever of domestic violence in the 20 years of the marriage.

[23]      The offence involved the use of a knife with which a number of wounds were inflicted.  These were clearly aggravating features.  But the murder had been committed in highly unusual circumstances.  The respondent had been having great difficulty in coping with the discovery of his wife's infidelity with ER.  The information about that had come completely out of the blue;  it had been drawn to his attention on the previous day by JV who had come across evidence of it in the most unlikely way.  The respondent had clearly been acting very much out of character throughout the evening of 19 September and the following day.  The trial judge accepted that it was clear from all that he had said and done that he was genuinely preparing to end his own life.  It was in that context that the knife first entered the scene.  As to the text messages which founded the averment of evincing malice and ill‑will, there was no evidence of the respondent ever having sent abusive messages to his wife before.  The language used in the messages was extravagant and highly offensive; it reflected great anger and upset on the part of the respondent.  It is worthy of note that the repeated threats related to self‑harm and not to any threat of causing harm directly to his wife.

[24]      In the event we did not derive much assistance from a consideration of Williamson (supra).  As it seemed to us, that case turned very much on its own facts which were highly case specific.  In our opinion, when the approach of the trial judge to sentence in the present case is examined in the round, it is clear that, in selecting the punishment part which he did, he was not seeking to reduce the wickedness of the actings of the respondent on the basis of evidence accepted by the jury in rejecting provocation.  Rather, he was addressing the different question of the appropriate length of the punishment part having regard to the requirements of retribution and deterrence.  In doing so he had regard to the whole circumstances leading up to the commission of the murder and the personal circumstances and antecedents of the respondent.

[25]      The trial judge required to have regard to the guidance given in Boyle.  He states that he did so.  In Boyle the court made it clear at paragraph [14] that 12 years should not be regarded as an appropriate “starting point” for “most cases of murder”.  The guidance in the last sentence in paragraph [14] is that:

“[a] punishment part as low as 12 years would not be appropriate unless there were strong mitigatory circumstances…”.

A sentencing judge requires to identify the aggravating and mitigatory features in assessing what is appropriate for retribution and deterrence.  Clearly the use of a knife is a serious aggravating circumstance, as is the infliction of a number of wounds.  Also in paragraph [14] the Lord Justice General (Hamilton) delivering the opinion of the court, said:

“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 [than 12].”

The point is picked up again in paragraph [16]:

“…the court should be acting, and be seen to be acting, in a way which discourages the carrying of sharp weapons, the use of which may lead to needless deaths.  Sentences which may cause individuals to think more carefully before arming themselves and which reflect public concern at such killings are appropriate.  Other than in exceptional circumstances we would expect punishment parts in cases of that kind to be at least 16 years, and they might be significantly longer depending on the circumstances.”

We note that in the present case the respondent had not deliberately armed himself with a knife with the purpose of causing harm to others; on the basis of the evidence accepted by the trial judge his purpose was to kill himself.  It is also important, particularly in an unusual case of this kind, to note the care that the court in Boyle took (at paragraph [17]) to preserve the discretion of the sentencing judge to take full account of the circumstances of a particular case:

“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.”

[26]      The trial judge noted that in Broadley the appellant had stabbed his wife five times in an attack which was said to have been “pressed with great determination”.  There had been no basis for diminished responsibility but the stress and strain of marital disharmony and hostilities over arrangements for the parties’ child, aged 5 years, had led to the appellant becoming preoccupied with thoughts of killing his wife to the extent that he had seen a psychiatrist.  A punishment part of 14 years was held not to be excessive, being within the appropriate range.  The court had commented that another judge might have fixed a slightly shorter period.  It has, of course, to be borne in mind that Broadley was decided some years before the guidance issued in Boyle was available.

[27]      As to the third argument advanced by the advocate depute, namely, the taking into account of an irrelevant consideration by making reference to a matter which could be construed a consideration of public protection, we do not think that much turns on that.  We think that the trial judge was doing no more than making a passing comment.  In fairness, the advocate depute described this submission as no more than a “makeweight argument”.

[28]      In deciding whether the punishment part imposed in this case was unduly lenient we bear in mind a number of important considerations.  Each case must turn on its own particular facts and circumstances.  The question is not whether this court might have imposed a different punishment part in the circumstances.  We require to be satisfied that the sentence is unduly lenient.  This means that it must fall outside the range of punishment parts which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate.  As the case went to trial the trial judge had the advantage of seeing and hearing all the evidence;  weight must be given to his view on the evidence.  (HM Advocate v Bell 1995 SCCR 244 per Lord Justice General (Hope) delivering the Opinion of the Court at page 250).

[29]      We are very conscious that the trial judge in this case heard the evidence and was in a position to appreciate the nuances in it.  Looking at the case in the round we are satisfied that the circumstances were such that this was a case in which it was open to the trial judge to select a punishment part at a lower level than might be expected in a case of murder involving the use of a knife.  In selecting a punishment part as low as 12 years the trial judge undoubtedly imposed a lenient sentence.  Another sentencing judge might well have selected a somewhat longer period.  That said, in applying the test set out in Bell (supra) we have come to the view, with some hesitation, that the punishment part cannot be said to be unduly lenient.

[30]      In the result the appeal must be refused.