Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 10

HCA/2016/000563/XC

Lord Justice Clerk

Lord Bracadale

Lord Turnbull

OPINION OF THE COURT

delivered by LORD TURNBULL

in

APPEAL AGAINST SENTENCE

by

JOHN LEATHEM

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Duguid, QC, Prais; Paterson Bell Solicitors

Respondent:  McSporran; QC, AD; Crown Agent

17 February 2017

Introduction

[1]        The appellant is John Leathem.  He is 32 years old.  On 5 September 2016 he pled guilty in the High Court at Glasgow to charges of murdering a 15 year old child called Paige Doherty and attempting to defeat the ends of justice.  On the charge of murder he was sentenced to life imprisonment with a punishment part of 27 years backdated to 26 March 2016, which was reduced from 30 years to reflect the plea of guilty.  He was sentenced to a concurrent period of 6 years’ imprisonment on the charge of attempting to pervert the course of justice.  Leave to appeal was granted to challenge the length of the punishment part selected, the sentence imposed on the attempt to pervert the course of justice charge and the level of sentence discount afforded.

[2]        The charges which the appellant pled guilty to were in the following terms:

“(001) on 19 March 2016 at the premises known as Delicious Deli, 22 Fleming Avenue, Clydebank you JOHN LEATHEM did assault Paige Doherty, born 17 April 2000, formerly residing at 24 Davidson Street, Clydebank and did repeatedly strike her on the head and body with a knife and you did murder her;

(002) between 19 March and 23 March 2016, both dates inclusive, at the premises known as Delicious Deli, 22 Fleming Avenue, 22 Brown Road, the access lane on Great Western Road near to World of Golf, 2700 Great Western Road, all Clydebank and elsewhere to the Prosecutor unknown, you JOHN LEATHEM, having committed the crime libelled in charge (001) hereof and being conscious of your guilt in respect thereof did

a)         at said Delicious Deli, wash the floors and other surfaces in an attempt to remove blood and other scientific evidence;

b)         wrap Paige Doherty’s body in bin liners;

c)         remove Paige Doherty’s body from said Delicious Deli to the boot of motorcar registered number JY08 HNY and thereafter on 19, 20 and 21 March 2016, conceal her body at a location to the Prosecutor unknown;

d)         transport her body and said motor car to the access lane on Great Western Road, Clydebank near to World of Golf and dispose of it there;

e)         clean the interior of said motor car in an attempt to remove blood and other scientific evidence;

and all this you did with intent to conceal and destroy evidence implicating you in the murder of said Paige Doherty and with intent to evade detection, arrest and prosecution in respect thereof and this you did with intent to defeat the ends of justice and you did thus attempt to defeat the ends of justice.”

The Circumstances of the Offences
[3]        In her report to this court the trial judge explains that at around 08:21 hours on Saturday 19 March 2016 the victim attended at the delicatessen owned by the appellant on Fleming Avenue, Clydebank whilst on her way to work.  She had been known to visit the delicatessen on a number of occasions previously, as had her mother.  No other customers were in the premises at the time and by 08:31 hours the external shutters on the entrance door to the appellant’s shop were seen to be closed, with the implication that the murder had been committed by that time.  The evidence ingathered during the course of the police enquiry demonstrated that the appellant had left the delicatessen at around 09:27 hours and returned within a few minutes to park his car immediately outside the premises.  Although the premises were open for business again and receiving customers by 09:36 hours, the child’s body remained there until 10:05 hours when she was removed by the appellant after he had wrapped her in a black bin bag and placed her into the boot of his car.

[4]        At various other points during the course of the morning the appellant left the delicatessen to obtain wipes and bleach in order to attempt to remove blood staining and other scientific evidence from the floors and other surfaces in the delicatessen and from the boot of his car.  Later in the day he drove home and deposited the victim’s body in the garden shed at the home he shared with his wife and young child.  The following day the three of them went on a family outing to Balmaha, leaving the victim’s body in the shed.  Around 6 in the morning of Monday 21 March the appellant drove to a lane on Great Western Road, Clydebank and deposited the body in some undergrowth where she was discovered by a pedestrian around noon that day.

[5]        A post mortem investigation revealed the full extent of the attack which the victim had been subjected to.  The injury which had caused death was a ragged gaping wound to the left side of her neck measuring 9.5cms x 6.5 cms and was at least 4.5 cms deep.  It had been caused by repeated stabbing and incision in that area.  Extensive damage to the soft tissue of the neck had resulted, along with the cutting of the internal carotid artery.  A further 61 individual penetrating, or stabbing wounds, were identified, 43 being to the head and neck.  In addition a further 85 incised wounds were located to the forearms, the back of the hands and the palms. A number of these wounds were defensive in nature.

[6]        Despite extensive enquiries by the Crown it had not been possible to identify a motive for the murder or any prior connection between the appellant and the victim which might point towards any form of explanation for his conduct.  Whilst senior counsel for the appellant gave the sentencing judge an account of what the appellant said had led to the killing he accepted before the sentencing judge, and before us, that this account, which was not accepted by the Crown, could not provide any mitigation for the prolonged and savage manner of his conduct.  It is not therefore necessary to repeat it here.

Sentence

[7]        The sentencing judge noted that the victim was under 5 feet in height and weighed just over 6 stones.  She observed that the victim was a small defenceless child who was brutally killed by a mature man more than twice her age who then went to very significant efforts to cover up his crime and hide the body.  In these circumstances the sentencing judge decided to select a punishment part of 30 years, which included an enhancement of a period of 3 years to reflect the elements of retribution and deterrence within the sentence imposed in respect of charge 2.  The plea was tendered at the first preliminary hearing held in the case.  There had been an earlier hearing scheduled but this had been discharged administratively to permit some further investigations to be carried out by the defence.  The judge noted that the utilitarian value of an early guilty plea will diminish through the passage of time as the Crown will require to continue to prepare its case in order to meet the strict custody time limits.  In these circumstances she considered that a discount of 3 years was as much as could be allowed, bringing the overall punishment part down to 27 years.

Submissions

Appellant

[8]        On behalf of the appellant, Mr Duguid QC submitted that the starting point for the duration of the punishment part was excessive and inconsistent comparatively with contemporary sentencing practice.  He submitted that the selection of a concurrent sentence of 6 years, which had led the sentencing judge to enhance the period of the punishment part by 3 years, was also excessive and that the period of discount permitted was insufficient to reflect the proper utilitarian value of the plea.

[9]        Mr Duguid accepted that there were relevant and important aggravating features present in the appellant’s conduct.  These comprised the vicious and sustained nature of the attack, the fact that the victim was a child and the appellant’s conduct in the period between the murder and the date of his arrest.  However, he submitted there were also relevant mitigating features to be taken account of.  The appellant was a first offender.  He was married with a young daughter and ran a moderately successful business within the local community where he lived.  His actions were out of character, the murder was committed spontaneously and he had expressed genuine remorse.

[10]      In support of his submission that the punishment part selected was inconsistent with current sentencing practice Mr Duguid referred to the cases of:

• Smith v HM Advocate 2011 SCCR 134, in which a punishment part of 32 years, reduced from 35, was imposed after a plea of guilty to murdering a mother and her 10 year-old daughter which involved sexual and sadistic attacks on both of them and the repeated rape of the young girl after which their bodies were disposed of on open ground and in a river; 
• HM Advocate v Snowdon and Jennings 25 July 2013, unreported, in which the sentencing statement issued by the judge made it clear that the punishment parts imposed of 33 years and 29 years were selected having taken account of the murder by fire raising of a father and his two children along with a number of other charges including other charges of setting fire to property, assault and drugs offences; 
• Wade & Coates v HM Advocate [2014] HCJAC 88, in which punishment parts of 30 and 33 years were imposed after trial concerning a premeditated crime of abduction and murder in which the victim had been subjected to horrific torture over a period of around two weeks.  Determined efforts to defeat the ends of justice were also displayed, including the decapitation of the victim and disposing of her remains such that her body has never been found; 
• Chalmers v HM Advocate 2014 SCCR 291, in which a punishment part of 23 years was imposed after conviction for murder along with a concurrent sentence of 6 years in respect of a conviction for attempting to defeat the course of justice by dismembering and concealing the body in a case where the appellant had a previous conviction (albeit elderly) for murder; 
• HM Advocate v Pacteau 8 September 2015, unreported in which the sentencing statement issued by the judge made it clear that the punishment part of 23 years was imposed in respect of a young woman who was brutally murdered by the accused who then went to significant lengths over a number of days in attempting to destroy her body;
• Tanveer Ahmed v HM Advocate [2016] HCJAC 125, in which a punishment part of 27 years reduced from a starting point of 30 years was imposed in a case which the sentencing judge described as barbaric, premeditated and wholly unjustified with an appalling display of merciless violence.  In the light of very serious concerns at extremist views based on beliefs of any particular faith the sentencing judge considered that an exemplary sentence was required and that this was one of those rare cases where a clear message had to be sent that such conduct based on religious intolerance would be dealt with severely.

[11]      Mr Duguid submitted that an analysis of these cases demonstrated that they all contained aggravating features of a more numerous and significant nature than were present in the appellant’s case.  That analysis led to the conclusion that a punishment part in the order of 30 years is properly restricted to cases which are significantly more serious than the present in relation to cause of death and which contain elements such as dismemberment after death.

[12]      Our attention was also drawn to schedule 21 of the Criminal Justice Act 2003, which gives guidance to judges in England and Wales in selecting the appropriate length of the minimum term to be selected when imposing a mandatory life sentence.  Whilst not placing any emphasis on this guidance, Mr Duguid submitted that these statutory provisions demonstrated that a starting point minimum period of 30 years imprisonment would be reserved for cases which contained elements of seriousness that were absent from the present, even if the victim was a child.  This he submitted lent support to his overall submission that the sentence imposed in the present case was inconsistent with current sentencing practice.

[13]      Separately, Mr Duguid drew attention to what had been said by the Lord Justice General (Hamilton) in giving the opinion of the court in the case of HM Advocate v Boyle and Others 2010 JC 66.  Mr Duguid noted that one of the considerations addressed by the court in that case was the suggestion in the earlier cases of Walker v HM Advocate 2003 SLT 130 and HM Advocate v Al Megrahi 24 November 2003, unreported, that 30 years was the virtual maximum length for any punishment part.  That suggestion was disapproved of by the court in paragraph 13 of the decision in Boyle.  However, in the very next sentence of that paragraph the Lord Justice General said this:

“On the other hand we endorse the exemplification given in the penultimate sentence of para 8 of Walker of the types of murder which might attract a punishment part in the region of 20 years.”

[14]      As Mr Duguid pointed out, the types of murder cases which the court in Walker had identified as potentially being of such gravity to warrant a punishment part in the region of 20 years included cases in which the victim was a child.  He therefore argued that he could rely on the decision in Boyle to vouch his submission that the appropriate starting point for selecting a punishment part in a case involving the murder of a child remained at about 20 years.  The judge in the present case had selected a significantly higher figure without adequate justification. 

[15]      In submitting that the sentence imposed on charge 2 was excessive Mr Duguid again relied on the case of Chalmers v HM Advocate.  He pointed out that in that case the conviction for attempting to defeat the ends of justice included an attempt to dismember the victim’s body, concealing the body within her own home and then placing it in a refuse bin and covering the body with foliage.  All of this conduct had resulted in the body not being discovered for a period of some 16 months, by which time it was impossible to ascertain the cause of death.  In that case the sentencing judge had imposed a concurrent sentence of 6 years’ imprisonment and had increased the punishment part imposed in relation to the associated murder charge by a period of 3 years.  This was exactly the same as had been done by the sentencing judge in the present case but in circumstances where the attempt to defeat the ends of justice charge bore no meaningful comparison.  It could therefore be said that the sentence imposed on this charge was excessive.

[16]      In addressing the level of discount permitted Mr Duguid drew our attention to the procedural history of the case.  He explained that on 8 June 2016, a little over two months after his first appearance on petition, the appellant submitted a letter to the Procurator Fiscal offering to plead guilty using the accelerated procedure provided for by section 76 of the Criminal Procedure (Scotland) Act 1995.  On that same date a psychiatric report instructed by the defence became available in which it was suggested that a report from a psychologist might be appropriate.  Those acting for the appellant considered that it was their professional duty to complete this enquiry before tendering a plea of guilty on behalf of the appellant.  The result was a passage of time before the plea came to be tendered but the appellant had all along accepted responsibility for killing the victim.  In these circumstances Mr Duguid accepted that the maximum period of discount permitted in such cases could not be asked for but he submitted that the period permitted by the sentencing judge did not adequately reflect the utilitarian value of the plea.

Consideration of Further Cases

[17]      At the suggestion of the court Mr Duguid give consideration to the following further cases: 

• Jakovlev v HM Advocate 2011 SCCR 608, in which punishment parts of 19 years were imposed on two accused who were convicted of murdering a vulnerable individual in his own home by inflicting 43 injuries on him by repeatedly kicking him on the head and body, stamping on his head and body and striking him with a metal pole; 
• Andonov v HM Advocate 2013 SCCR 245, in which a punishment part of 29 years imposed after conviction for a contract killing by shooting and an associated attempted murder was reduced to a period of 27 years;
• Lauchlan & O’Neill v HM Advocate 2015 JC 75, in which punishment parts of 26 years and 30 years respectively were imposed after conviction on charges of sexual misconduct involving young boys, murder and attempting to defeat the ends of justice by disposing of the body at sea. In deciding that the periods selected were not excessive the court noted that “..there are several circumstances in this case that take it well outside the norm, if there be a norm in murder cases”.  The circumstances which weighed with the court were that the appellants were previously convicted of significant predatory sexual assaults on the vulnerable young son of the murder victim for which they received substantial periods of incarceration, both upon conviction and upon breaching the terms of supervision.  They were then convicted on indictment of a range of further predatory sexual assaults on vulnerable boys, including planning to involve a child aged only six, the premeditated murder of a woman in a vulnerable state and the disposal of her body at sea, from which there was no recovery; 
• Haugen v HM Advocate [2015] HCJAC 121, a case in which the deceased was stabbed 27 times with a kitchen knife in what was described as a frenzied attack of a most brutal nature and a punishment part of 19 years reduced from 22 was imposed.  On appeal it was noted that the appellant had no significant record, the murder was not premeditated, it did not involve taking a weapon into the public arena and the appellant made no attempt to conceal his crime.  The appeal was allowed with a punishment part of 16 years reduced from 19 being imposed.

Crown

[18]      In light of the submissions made concerning sentencing discount the court invited the advocate depute to explain what impact the withdrawal of the section 76 offer to plead guilty had on the Crown’s case preparation.  The advocate depute informed us that he had not been made aware of the limited purpose of the further enquiry initiated by the defence and on learning that the offer to plead guilty had been withdrawn he instructed the procurator fiscal to engage in full case preparation.  Given the amount of time which had passed by this stage the procurator fiscal had to undertake all the necessary work in a short time scale.

Discussion

[19]      Mr Duguid’s submission that the court in Boyle had endorsed the exemplification given in paragraph 8 of Walker of the types of murder which might attract a punishment in the region of 20 years was very similar to the submission made by counsel for the appellant in the case of Jakovlev.  That submission was addressed by Lord Hardie in giving the decision of the court at paragraph 10 in this fashion:

“We would make two observations about this matter.  The first, taking child murders as an example, is that having increased both the lower and upper limits of the approved range, it seems highly improbable that the court in Boyle then designedly set out to downgrade the relative seriousness of such murders without offering any justification for doing so.  Much more likely, in our opinion, is that the court’s intention was simply to endorse the view in Walker that such murders should attract a punishment part somewhere in the middle of the range deemed appropriate from time to time.  On that approach the equivalent level today would be in the region of 25 years, being the midpoint between 14, the minimum period suggested as appropriate in Cameron, and 35 being the period approved by the court Smith.”

[20]      Lord Hardie’s observations on the limitations of using Walker as authority in the modern era were referred to with apparent approval by the then Lord Justice Clerk (Carloway) in giving the opinion of the court in Lauchlan and O’Neill at paragraph 54.  We are not therefore persuaded that Mr Duguid is correct in submitting that there is a recognised and approved sentencing practice which would result in a punishment part of around 20 years in relation to the murder of a child.

[21]      That having been said, an analysis of the cases which we have referred to above does tend to lend support to the submission that in current sentencing practice a punishment part in the order of 30 years is properly restricted to cases which manifest extreme elements.  In Smith there were two victims, one of whom was a child; there was evidence of extreme depravity; and attempts were made to dispose of the bodies.  Snowdon and Jennings was a case of premeditated murder with multiple victims, including children.  Wade & Coates involved premeditation, abduction, torture and successful efforts to avoid the body of the victim being recovered.  Tanveer Ahmed was a case of premeditated murder of a most barbaric nature driven by an extreme religious motive. 

[22]      As the presiding judge made clear in her sentencing statement, the appellant in the present case engaged in a brutal, savage and frenzied attack on a young defenceless child before attempting to cover up his actions.  In the course of that attack he appears to have struck her in the region of 146 times.  Each case must be determined upon its own facts and those just identified demonstrate that the appellant committed a most appalling murder.  Even in such cases though, all of the relevant circumstances require to be given proper weight before the appropriate sentence can be identified.  The appellant was a family man of previous good character who had not offended before and who had expressed remorse.  The murder was not premeditated.  The extent of his efforts to defeat the ends of justice can be measured against certain of the conduct which took place in some of the other cases referred to above.

[23]      When these circumstances are all taken account of we think it can be said that the length of the punishment part selected in this case was inconsistent with current sentencing practice and was excessive.  We also consider that by comparison with the circumstances of the case of Chalmers Mr Duguid was correct in submitting that the sentence imposed on the appellant in respect of charge 2, and the resultant enhancement of the punishment part by a period of 3 years, was excessive.

[24]      In our opinion the appropriate starting point for the punishment part selected in respect of charge 1 ought to have been a period of 25 years.  The appropriate sentence on charge 2 ought to have been one of 3 years’ imprisonment to run concurrently with the life sentence imposed. In these circumstances it would have been appropriate to enhance the punishment part by a further period of 1 year to a total of 26 years.  Thereafter the question of reflecting the utilitarian value of the plea by way of sentencing discount arises.  In light of the history of case preparation as given to us by the advocate depute we consider that the utilitarian value of the plea merits no more than a discount of 3 years.  This would result in an overall punishment part of 23 years.

Decision

[25]      For the reasons which we have set out above we shall quash the punishment part imposed in this case and substitute therefor a period of 23 years.