Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 25

HCA/2015/3345/XC

Lord Justice General

Lady Paton

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST SENTENCE

by

SANDRA ELIZABETH FRASER or ANDERSON or BRUCE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McConnachie QC; Paterson Bell (for Tods Mitchell, Paisley)

Respondent: Erroch AD; the Crown Agent

4 March 2016

Introduction

[1]        On 19 June 2015, in the High Court at Glasgow, the appellant was convicted of a charge, which libelled that:

“(3)      on 8 and 9 February 2014 ... [on the] Isle of Skye, you ... did assault Norman ... Bruce ... and did repeatedly scratch him on the head and body with your finger nails, repeatedly kick, stamp and jump on his head and body, inflict blunt force injuries to his head and body by means to the prosecutor unknown and you did murder him.”

The evidence

[2]        The appellant and the deceased had been together for over 20 years, and married in 2010.  They were in the habit of drinking heavily, although both had been employed locally.  The state of their house, after the discovery of the body, was described by those attending as squalid.  There was a history of some domestic violence directed towards both the appellant and the deceased by each other.

[3]        On Saturday 8 February 2014, the couple had spent most of the day drinking in bed.  The appellant’s evidence was that, at some stage during the night, she had been aware that the deceased had got up to go to the toilet.  Her next recollection was of waking up on the Sunday morning to find him on the floor, by the bed, not responding, and cold to the touch.  Exactly what occurred during the course of the night remains unknown.  However, the pathology revealed that the deceased had sustained numerous injuries to the face, scalp, neck, arms and trunk.  Bruising to the arms indicated defensive action.  The deceased had sustained 20 fractures of the rib cage and neck, consistent with blunt force trauma caused by kicking and stamping.  The injuries were said to be equivalent to those occurring in a road traffic accident or a fall from a considerable height.  Death would have occurred within one hour of the injuries, and would have involved considerable pain.  The deceased had sustained scratching to his upper torso, apparently caused by fingernails being dragged across the body when it was in a prone and motionless state.  The degree of scratching gave the impression of flayed flesh.  The scratches had been inflicted at, or shortly after, the time of death.

[4]        The appellant called the emergency services on the Sunday morning.  When they arrived, she was in a state of distress and continued intoxication.  In due course she accepted responsibility for the death of her husband.  The trial consisted of a dispute as to whether that death had been as a result of a murder or culpable homicide.

Sentencing judge’s report

[5]        The trial judge did not call for a Criminal Justice Social Work Report but one has been obtained in the course of the appeal process. 

[6]        In fixing the punishment part, the judge said that he had regard to the fact that the appellant had no criminal history.  He had regard to: her employment record; her age, which was 61 years at the time; and the fact that, as a result of her actions, she had lost her husband.  On the other hand, he noted that she had been convicted of a murderous assault, by repeated kicking, stamping and jumping on the victim’s head and body, in circumstances where he appeared to have been lying on his back and unable to defend himself.  In all these circumstances, the judge considered that a period of 15 years was appropriate.

Submissions for the appellant

[7]        The ground of appeal is that that punishment part was excessive.  It was submitted that the punishment part ought not to be as high as the 15 years recommended in Boyle v HM Advocate 2010 JC 66, in the context of knife crime.  It was maintained that the judge had not taken sufficient account of the personal circumstances of the appellant and the consequence of the loss of her life partner.  Since she had been in custody the appellant had attempted to benefit others within the prison system, notably in the peer mentoring scheme.  She had acted in a positive manner.  She still had no recollection of the incident itself. 

Decision
[8]        In Boyle v HM Advocate 2010 JC 66 the court reviewed recent authorities, notably Walker v HM Advocate 2002 SCCR 1036, and disapproved (at para [14]) of the selection of 12 as a “starting point” for “most cases of murder” at least where a weapon was involved.  The court stated that a punishment part of 12 years would not be appropriate in the absence of strong mitigatory circumstances.  For cases in involving a knife, the court selected (at para [16]) 16 years as a guideline.  In Jakovlev v HM Advocate 2011 SCCR 608, the court observed (at para [10]) that Boyle had made it clear that in normal circumstances the available range should start at a higher figure than 12 years.  In Cameron v HM Advocate 2011 SCL 633, where the appellant had murdered his partner by means unknown, the court selected 14 years, but in circumstances in which it erroneously failed to take into account post mortem actings designed to conceal the crime.  Finally, in HM Advocate v Callander 2014 SCL 206, a period of 17 years was taken as appropriate where the death was not caused by a weapon but, as in this case, repeated blows to the head and body. 

[9]        In this case, there were mitigatory factors, notably the absence of any criminal record, the appellant’s good work record and the age at which she found herself convicted of the murder of her “life partner”.  However, there were also aggravating features, notably the nature of the attack and the absence of a call for assistance for some hours after what must have been a sustained attack.  In all these circumstance the court is unable to describe the selection of 15 years as a punishment part by the trial judge as excessive.  It is certainly not one which falls outwith the appropriate range of punishment parts which are now deemed appropriate for cases in this category.  In these circumstances, the appeal is refused.