Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 46

HCA/2015/185 /XC

Lord Justice Clerk

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

PAUL McMANUS

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Jackson QC, Lenehan; John Pryde & Co (for GLP, Glasgow)

Respondent: B Erroch AD; the Crown Agent

19 May 2015

[1]        On 8 January 2015, at the High Court in Livingston, the appellant was sentenced to detention without limit of time, with a punishment part set by the trial judge at 26 years.  He had been found guilty after trial of charges of murder, attempted murder, attempting to defeat the ends of justice and three instances of robbery and theft.

[2]        The first of the charges was an attempted robbery on 2 April 2014 in Nitshill Road.  The appellant had repeatedly demanded that the complainer hand over his mobile phone.  He repeatedly stabbed him with a sharp instrument.  The complainer ended up with 22 separate injuries, although none of them were described as serious in medical terms.  He was, however, badly affected by the incident.

[3]        Charge 2 was the theft of 3 bottles of Buckfast from a shop in Barrhead on 8 April.

[4]        Charge 3 was the attempted robbery of a BMW car from the Spar car park on Barrhead Road on the same day.  The appellant stabbed the complainer on the leg to his injury.

[5]        Charge 4 was at a different level of criminality.  On 8 April 2014, having drunk two of the bottles of Buckfast and taken drugs, the appellant went out to target cars to steal.  He saw Norman Busby, a retired police officer aged 81, at the door of his home in a residential area of Crookston.  There were 2 cars in the driveway.  Later, shortly after midnight on 9 April, he returned to the house armed with a knife in each hand.  When Mr Busby opened his door, he forced his way in, demanding the car keys.  He stabbed him 3 times, puncturing both lungs, which collapsed.  Without medical intervention he would have died.  When Mr Busby’s female partner, Isabella Sanders, aged 51, with whom he had lived with for 30 years, tried to intervene, he stabbed her some 37 times.  She sustained 61 injuries in total.  The fatal wounds penetrated her heart, lungs and pulmonary artery.  Mr Busby managed to activate his alarm.  The appellant fled, taking a lap-top computer, cash and a decanter.  He tried, but failed, to take one of the cars.

[6]        The final charge related to his attempting to dispose of his clothes and the computer.

[7]        At the sentencing diet, it was recognised by the appellant’s counsel that very little could be said in mitigation.  The appellant had a number of previous convictions dating from 2011 for public disorder, theft, assault and robbery and possession of weapons.  He had been given a 3 year Community Payback Order in June 2011, but breached this very shortly afterwards and was sentenced to detention.  In May 2012, he was sentenced to 6 months for assault.  In September 2012, he was sentenced to approximately 2½ years for assault and robbery and two months later to 8 months for housebreaking and car theft.  On his release he had returned to his mother’s house.  His relationship with her had broken down and he had been staying with various friends.  The current offences were committed within 6 weeks of his release from custody.

[8]        The CJSWR identified in the appellant a low level of victim empathy.  His childhood had been characterised by his father’s history of offending, alcohol misuse and limited involvement with his family.  It was also affected by his mother’s mental health.  He had periods of homelessness.  The relationship between the appellant and his mother was described as becoming strained, with his mother ultimately being exasperated by the appellant’s behaviour in continually coming to the attention of the police.  His schooling consisted mainly of truanting.

[9]        The appellant has a long and extensive history of antisocial behaviour.  He was the subject of a supervision requirement from 2010.  A variety of support packages had been put in place to assist him from both the statutory and voluntary services, including the Forensic Child and Adolescent Mental Health Team, but it is clear from the detailed report that all efforts to assist the appellant failed.  The appellant’s risk of offending was assessed, not surprisingly, as “extremely high”.

[10]      In selecting the punishment part, the trial judge referred to the crimes at Crookston as characterised by sheer brutality.  He said that he would have imposed a punishment part of 21 years, had he been sentencing the appellant for the murder alone.  He took into account, as he was bound to do by statute, the other offences on the indictment.  He explained in detail that he would have imposed sentences of 4 years on charge 1; admonition on charge 2; 4 years on charge 3; and 18 months on charged 5.  Had the attack on Mr Busby been considered separately, he would have selected 10 years detention.  He would have reduced the effect of a consecutive imposition of these sentences by selecting a cumulative 14 years.  He estimated the element for public protection within that sentence at 4 years, thus holding that 10 years would have been appropriate for the punishment and deterrence element, had the sentence been a fixed term of imprisonment.  Having regard to the early release provisions applicable to such a sentence, he reasoned that the punishment part of 21 years ought to be supplemented by 5 years, to reach the total of 26.

[11]      The appeal focussed on the appellant’s youth.  He is aged 19.  It was said that the trial judge had not given sufficient weight to the appellant’s background and youth.  In particular, the background, which this appellant had endured, was the type of start in life which should not be imposed upon any reasonable person in modern times.  Reference was made to HM Advocate v Clark 2010 SCCR 210 in relation to the effect of youth in the sentencing equation.  The second matter raised in the appeal was the calculation carried out by the trial judge which, it is said, had resulted in an excessive cumulative total. 

[12]      There are some crimes which so plum the depths of depravity that, even in a man so young as the appellant, only a very substantial punishment part can be seen as appropriate to reflect the elements of punishment and deterrence.  This is undoubtedly such a case.  It is an extreme one, involving a spree of serious violence over a period of 7 days, which commenced with a significant assault on the first complainer.  Each of the physical attacks was deliberate and all were planned, with the appellant taking knives with him for violent purposes.  The spree ended in an horrendous incident in which he specifically went out looking for people to rob.  He took 2 knives with him.  When the elderly householder, whom he had selected, showed the slightest resistance, he stabbed him 3 times.  He then carried out what can only be described as a frenzied attack, with multiple stab wounds, on the householder’s partner.  In crimes of this nature, with a course of conduct of the type described, the youth of an appellant and a deprived background can only have a limited effect in selecting the punishment part.  The trial judge took full account of these matters in the appellant’s case.  Whilst the court agrees that it was not necessary to carry out the precise arithmetical calculation, which the trial judge undertook, what this court must do at the appeal stage is to consider whether, looking at the sentence overall, it can be described as excessive.  The court is unable to classify this sentence as excessive.  The appeal is accordingly refused.