Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 16

HCA/2014-003719-XC

Lady Smith

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in

APPEAL AGAINST SENTENCE

by

MELISSA MADELINE YOUNG

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Scott QC (sol adv);  Wilson McLeod

Respondent:  MacVicar, advocate depute;  Crown Office

21 January 2015

Summary
[1]        The appeal in this case is directed to the punishment part of 20 years imposed as part of a mandatory sentence of life imprisonment following a conviction for murder.  At the hearing we refused the appeal and we now issue our written reasons for that decision.

The Charge
[2]        The appellant was convicted after trial of a charge in the following terms:

“On 25 December 2013 at Flat 6, 3 Glenure Loan, Edinburgh you MELISSA MADELINE YOUNG did abduct and assault Alan Williamson, residing at Flat 9, 3 Glenure Loan, Edinburgh confine him in said flat against his will and repeatedly stab him on the body with a knife and you did murder him”.

 [3]       The repeated stabbing referred to in the charge involved 29 stab wounds, 12 on the left side of the victim’s chest, 12 on the left upper limb and 5 on the left lower side.  Several of the wounds penetrated the chest cavity causing injuries to the left lung and heart.  Several other stab wounds penetrated through the diaphragm to enter the abdominal cavity where there were associated injuries to the stomach, pancreas and spleen.  On the left lower limb one of the stab wounds resulted in the left femoral vein being transected.  The deepest wound on the left lower limb extended for a depth of 8.5 cms.  Death was certified as having been caused by stab wounds of the chest and left leg. 

The Evidence
[4]        In his report, the trial judge sets out the circumstances leading up to the offence and the events on the night of the murder as disclosed in the evidence, which was largely undisputed.  Alan Williamson, a vulnerable neighbour, visited the appellant in her flat and, for reasons unknown, was detained by her there.  The appellant made a 999 call to the police and Alan Williamson was heard shouting in the background “let me out”.  The appellant did not let him out and, for reasons unknown, killed him.  Thereafter she again telephoned the police and said that she had stabbed someone about seven times.  She said “I’m psychiatric can you take me the Royal Edinburgh Hospital please”.  When police arrived at the flat the appellant said that she needed to go to Carstairs Hospital.

[5]        The appellant had a history of both alcohol and drug abuse albeit the trial judge concludes that “it seems unlikely that either drink or drugs played a big part in what happened”.

[6]        The major issue at trial was whether or not the appellant was suffering from diminished responsibility at the time of the offence.  It was not disputed that the appellant killed Alan Williamson.  The trial judge explains that six consultant psychiatrists gave evidence.  All of them agreed that the appellant suffers from a severe personality disorder.  Dr Lenihan described the personality disorder as a mixed personality disorder with emotionally unstable (borderline) narcistic, histrionic and anti-social traits.  One psychiatrist, Dr Khan, who was instructed by the defence, diagnosed a mental illness, namely schizophrenia.  Having summarised the evidence the trial judge concludes:

“the general impression that one was left with from all the psychiatrists, Dr Khan excepted was of someone who was manipulative and prone to using psychiatric symptoms as a means to obtaining an end.”

[7]        The trial judge also summarises the evidence given by the appellant in which she refused to accept that she stabbed Mr Williamson more than seven times and said that either he had stabbed himself or there was a police vendetta against her.  The appellant also stated she was indifferent to the fact that she had taken away his life and that she did not like him.

[8]        Having considered the verdict of the jury and taking into the account the evidence, the trial judge concludes:

“The jury must have accepted the unanimous evidence of all the psychiatrists that Ms Young was suffering from an abnormality of mind, as now defined in section 51(B) of the 1995 Act, at the time of the offence.  However, they must also have concluded that her conduct was not substantially impaired at the time.  Dr Lenihan’s evidence about the way in which she engineered a transfer from the Blair Unit in Aberdeen to the Orchard Clinic in Edinburgh may well have been influential as would the remarks that she made during the 999 call about wanting to go to the Orchard Clinic or Carstairs”

Submissions on behalf of the appellant
[9]        There were four grounds relied on in the written submissions in support of the appeal.  It became plain during oral submissions, however, that senior counsel relied, principally, on the fourth ground.  Grounds 1 to 3 were dealt with briefly.

[10]      Senior counsel submitted that the analysis of the previous criminal record of the appellant, which forms the first ground of appeal, was not put forward as a mitigating factor but to give background and context to the appellant’s history.

[11]      He noted that the second ground of appeal stated that there was no evidence that the killing was premeditated.  Counsel, who had not been counsel at the trial, stated that he had initially considered that this was uncontroversial in the context of the case.  He conceded, however, that this ground was not without difficulty bearing in mind that there was evidence that the door was locked and Alan Williamson had not been allowed to leave.

[12]      The third ground of appeal was that the appellant had accepted responsibility for killing Alan Williamson from the outset.  Counsel explained that there was no suggestion in this case that there should have been a discount.  Rather, he submitted that this was not a case where an appellant sought to avoid responsibility by denying guilt of the crime and that should be taken into consideration in the selection of the punishment part of the sentence.

[13]      The main submission advanced related to the fourth ground which prayed in aid the fact that the appellant had undergone gender reassignment in 2002 and her medical and mental condition.  In support, counsel produced to this court a new report from a senior charge nurse from HMP Edinburgh.  This report summarises the prison records from 27 December 2013 to 23 July 2014 and gives the opinion of the senior charge nurse about the appellant’s history and response to prison.  Counsel submitted that it was not in dispute that the appellant had extensive contact for many years with mental health professionals, including hospital admissions and inpatient care.  She had been diagnosed as suffering from a personality disorder, having previously been diagnosed with schizophrenia.  Counsel asserted that these factors made the appellant more vulnerable within the prison environment.  He conceded that a life sentence was unavoidable on the basis of the verdict of the jury but submitted that the length of the punishment part should have been modified to reflect the particular vulnerability of the appellant.  Counsel was critical of the approach of the trial judge who accepted, in his report, that he did not take into account that she had undergone gender reassignment or of her mental health.  Counsel accepted that the trial judge was not provided with any evidence of vulnerability of the appellant in a prison setting in the evidence nor was it suggested that he should obtain reports on that matter.

[14]      Counsel asserted that because of her unique history and difficulties, the appellant would be more vulnerable in prison particularly bearing in mind her personality disorder and her impulsivity problems and that vulnerability made imprisonment a more severe punishment.  The trial judge should have reflected that in his selection of the punishment part.

[15]      Counsel accepted that the new report which he produced to this court did not advance his submissions and stated that he “had hoped to have more support”.  He relied also on submissions based on the appellant’s perceptions of the sentence to the effect that the appellant considered herself to have particular vulnerability in the prison setting.  She is prescribed medication in relation to her mental health, as well as hormone treatment and other assistance relating to her gender reassignment.

The Court’s Reasons
[16]      We consider that it is important to note that at the end of the trial, after the Crown moved for sentence and submitted a schedule of previous convictions and victim statement forms from the deceased’s brother and sister, the solicitor advocate then instructed to represent the appellant, made no submissions in mitigation.  The trial judge properly took into account the appellant’s previous record which included a number of assaults and breaches of the peace , theft and wilful fire raising, for which she had served periods of imprisonment.  The trial judge considered that the evidence demonstrated that the considerable violence was not spontaneous, and included a total of 29 stab wounds.  He concluded that the appellant intended to use extreme violence and we consider that he was entitled to do so.  He also noted that the appellant has shown no remorse at any point and stated that her evidence was “quite chilling ... the whole focus was on herself with no thought for her victim”.

[17]      No submission was made to the trial judge that the appellant was, because of her gender reassignment and mental health problems, more vulnerable within the prison environment.  He did note that the appellant had been moved from Saughton to Cornton Vale whilst on remand but, according to the report from the senior charge nurse provided to us for the appeal hearing, the appellant:

“was successfully transferred back to HMP Edinburgh.  ...  Her mental health has remained stable and she is coping with prison life.  She does not have a severe and enduring mental health diagnosis and I have never seen any evidence of psychosis.  She does suffer with a complex personality disorder with several personality disorder traits.  The overriding personality disorder trait in my professional opinion is Borderline personality.  She has remained on medication whilst at HMP Edinburgh and engages well with the whole healthcare team.”

[18]      This is not a case in which it is submitted that the appellant cannot, on account of her gender reassignment, be managed appropriately in a prison setting.  The trial judge did not ignore or fail to give relevant weight to her personal circumstances, including her psychiatric history.  The appellant’s history of mental and personality disorders and her involvement with medical and psychiatric professionals were explored in detail at the trial and did not persuade the jury that she was of diminished responsibility at the relevant time.  The starting point for the trial judge was, accordingly, that the appellant was to be sentenced on the basis that she was as responsible for the death of the deceased as any other person convicted of murder.  There are cases where, due to a person’s personal circumstances, the impact of imprisonment can be regarded as likely to be particularly severe; then, the punishment part may be mitigated to some extent. However, there was nothing placed before the trial judge which could have justified such an approach and there is nothing   in the new information put before us to support the assertion that the appellant’s gender reassignment and / or the state of her mental health will increase her vulnerability in prison.  Indeed, that new information discloses that there have been occasions on which it was not she who was shown to be vulnerable but, rather, members of staff who she is said to have assaulted.  

[19]      We consider that the circumstances of this case, including the number of knife wounds, the location and depth of the wounds, the sustained brutality of the unprovoked attack to a defenceless victim locked in her house by the appellant, the absence of remorse and the appellant’s previous criminal record clearly demonstrate that the punishment part selected by the trial judge is not excessive.  That punishment part is necessary to satisfy the requirements for retribution and deterrence.  For these reasons we refused the appeal.