Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 31

HCA/2015/3532/XC

Lord Justice General

Lord Brodie

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

THE REFERENCE FROM THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

ANDREW BROWN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: CM Mitchell, Ross; John Pryde & Co (for Brazenall & Orr, Dumfries)

Respondent:  Prentice QC AD (sol adv); the Crown Agent

18 March 2016

[1]        On 11 April 2014, 3 days before the end of a trial lasting 5 weeks, the appellant pled guilty to charges of murder, threatening behaviour and attempting to pervert the course of justice.  On 4 June, he was sentenced to imprisonment for life, with a punishment part of 20 years. 

[2]        The co-accused, Dean Melnyk, was convicted after trial of murder.  He received the same life sentence and punishment part.

[3]        The trial judge reports that the evidence was that on 11 August 2013, the night of the Ecclefechan Gala, a group of young men had taken ecstasy supplied by the deceased Kevin Mackay.  One of them, Jamie Abba, died as a result of an adverse reaction to the drug.  This was witnessed by his friend, Mr Melnyk.  The funeral took place on 22 August, followed by a wake at a bar in Lockerbie.  A view was formed that the deceased deserved a “good kicking”.  The appellant and Mr Melnyk went to Ecclefechan, where they took two large kitchen knives from a house there, before kicking down the deceased’s door.  He was sitting watching television.  They stabbed him 26 times, causing his rapid death.  The act was therefore both concerted and premeditated.

[4]        The trial judge made reference in sentencing the appellant to the fact that he had expressed remorse for his actions and had tried to apologise to the deceased’s family.  The appellant was aged 23 and employed as a fisherman.  He did have a criminal record, but not one for violence.  He had not previously served a custodial sentence. 

[5]        Mr Melnyk had no previous convictions.  The judge noted that he too had expressed remorse and had been suffering from a serious reaction to the death of his friend, although that, the trial judge noted, had not influenced his conduct.  Because of that, the trial judge did not differentiate between the accused.

[6]        The appellant originally appealed against sentence, partly on the basis of his personal circumstances, including a very difficult upbringing, and partly on the basis of the utilitarian value of the plea.  The trial judge had not considered that the plea had had any utilitarian value.  The appeal was refused on 19 August 2014.  The Scottish Criminal Cases Review Commission were under the impression that no Opinion had been issued.  Unfortunately that was not correct.  An Opinion ([2014] HCJAC 101) had been issued.  It makes it clear that, under reference to Jakovlev v HM Advocate 2011 SCCR 608, the contention had been a broad one to the effect that the punishment part had been excessive.  The court noted all the factors which the trial judge had taken into account.  It nevertheless remained the case that the murder had been properly categorised as concerted, premeditated and extremely violent.  It was on this basis that the court declined to reduce the punishment part.

[7]        On 26 November 2014, a differently constituted bench heard the co-accused’s appeal, which was based upon a contention that there should have been a differentiation because he, Mr Melnyk, had been a close friend of Mr Abba and had suffered an extreme grief reaction.  Again, the SCCRC were under the impression that there had been no Opinion issued.  That was correct, but there was an audio recording of the ex tempore judgment.

[8]        The court, which does not seem to have been referred to the Opinion in the appellant’s appeal, noted that the defence of diminished responsibility had been rejected by the jury.  Nevertheless, the trial judge had accepted that Mr Melnyk had been suffering from a post-traumatic stress disorder and had been upset to a greater degree than normal as a result of his friend’s death.  The court held that the judge had been wrong not to differentiate between the two accused on the basis of the grief reaction.  The court therefore reduced Mr Melnyk’s punishment part to 17 years.

[9]        The SCCRC referred to a BBC News Website report that suggested that the court had agreed with a submission from Mr Melnyk that he had played a lesser part in the murder.  This, the SCCRC considered, correctly, was not consistent with the judge’s report or the evidence.  In the absence of the written or transcribed Opinions, the SCCRC, not surprisingly, concluded that they could not:

“see any material difference between the two accused as regards their culpability and their sentences. ”

A reference duly followed.

[10]      The grounds of appeal, which this court has to consider following upon the SCCRC reference, are dependent on the content of that reference.  The contention is that the court, which reduced the punishment part in Mr Melnyk’s case, had been in error in distinguishing between the two accused, at least to the extent of 3 years.  In the Case and Argument, there was an esto position introduced suggesting that the punishment part was excessive in all the circumstances.  This, however, does not appear in the Note of Appeal and is contrary to the reference.

[11]      The situation which has arisen is clearly unsatisfactory, no doubt because the two appeals were not, for whatever reason, heard together.  Had they been, the court is satisfied that there would not have been a distinction between the two accused.  In these circumstances, as Mr Melnyk has had his punishment part reduced to one of 17 years, the need to ensure comparative justice dictates that this court should reduce the punishment part in the appellant’s case also and substitute one of 17 years.