Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_40.html
Cite as: 2020 SCCR 397, [2020] ScotHC HCJAC_40, [2020] HCJAC 40, 2020 GWD 34-452

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Glennie

Lord Turnbull

OPINION OF THE COURT

[2020] HCJAC 40

HCA/2020/185/XC

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

APPEAL AGAINST SENTENCE

KEITH RIZZO

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: Findlay QC; Paterson Bell (for Graham Walker Solicitors, Glasgow)

Respondent: Edwards QC, AD; the Crown Agent

18 September 2020

Introduction

[1] On 9 March 2020, after an eleven day trial at the High Court in Glasgow, the

appellant was unanimously found guilty of three charges. Chronologically, these were: first

(charge 7), a number of relatively minor assaults on Neomi Smith, who was the appellant’s

23 year old partner, at their flat in Swan Street, Brechin, in May 2019; secondly (charge 6), on

9 June, behaving in an abusive or threatening manner towards Ms Smith in Hudson’s Bar in

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the city; and thirdly (charge 9) the murder of Ms Smith later on 9 June, by forcing entry to

the flat, inflicting blunt force trauma to her head, compressing her neck and restricting her

breathing, and repeatedly striking her on the head and body with knives. Each charge was

aggravated by the involvement of the appellant’s partner in terms of section 1 of the

Abusive Behaviour and Sexual Abuse (Scotland) Act 2016.

[2] On 6 April 2020 the trial judge imposed a life sentence with a punishment part of

22 years. The appeal concerns the length of that part.

Facts

[3] Evidence was led in relation to a number of charges, upon which the Crown

ultimately did not seek a conviction, which libelled acts of violence, and other abuse,

perpetrated by the appellant on a number of partners from 2014 onwards. Alcohol played a

part in these, as it did with the assaults on the night of the murder. The appellant was

described by witnesses as jealous, manipulative and controlling. He had a tendency to

belittle his partners. Although he often apologised afterwards, the conduct was repeated.

[4] The Angus Agricultural Show took place in Brechin on 8 June. Many of those who

had attended went to Hudson’s Bar for the evening. There was dancing, during which the

appellant became annoyed at the manner in which the deceased was dancing with others.

He got up, shouted, pushed a table causing glasses to fall, knocked a bottle across the dance

floor and made a sign to the deceased that he was watching her. The deceased was upset

and crying. She left the bar, telling a friend that she was afraid because of previous incidents

of physical violence. She said that she planned to go back to the flat and lock the door,

leaving the key in the lock to stop the appellant entering.

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[5] The appellant left the bar with a cousin. They arrived at the appellant’s flat at about

00.45am. The appellant kicked the door in. The cousin made a hasty retreat. At 1.22am the

cousin, and a number of others in a group, received a message from the appellant saying

that the deceased was dead.

[6] The appellant’s downstairs neighbour had heard banging noises from the kitchen

area of the deceased’s flat. These went on for 15 to 20 minutes, with gaps of quiet lasting for

about a minute. The neighbour telephoned the police. While waiting for a response, the

appellant appeared at his door in a state of apparent distress and panic. The appellant said

that his partner was unresponsive, but he had not been able to call the emergency services

because he could not find his phone. The trial judge reports that the latter seemed unlikely

because the appellant was sending messages from 1.22 to 1.29am and the call to the police,

which the neighbour then made, was shortly before the police arrival at the flat at 1.31am.

[7] The neighbour had gone into the appellant’s flat where he was met with what he

described as a “scene of carnage”. There was glass and debris all over the kitchen floor, with

the contents of the cupboards and fridge having been strewn about. The deceased was lying

on her front with a knife beside her. The appellant and the neighbour went outside to await

the arrival of the emergency services. The appellant began shouting that his partner had

been stabbed, although one passer-by reported him as saying that he had stabbed

“somebody”. The appellant threw himself onto the ground and started howling. A friend

of the appellant had been driving past and saw the appellant. He telephoned him. The

appellant said that somebody had broken into his flat when he was in the shower and had

attacked the deceased.

[8] The first paramedic on the scene described the scene as like something out of a

horror film. There was a considerable amount of blood on and below the deceased. The

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deceased’s face was badly bruised, with her eyes like “golf balls”. The back of the

deceased’s neck was like a piece of cheese, ie full of stab wounds. The deceased had

suffered 32 blunt force injuries and 26 stab wounds, 20 of which were serious and 10 were to

the back of the neck. There had been two attempts to cut her throat. There were no

defensive injuries. There was evidence of asphyxiation.

[9] Over time, the appellant gave a number of accounts about what had happened. His

first group message at 1.22am was a request for someone to answer because “Neomis been

murdered”, followed by four broken heart and four sad face emojis. Five minutes later, he

sent another message saying “someone’s attacked Neomi she’s dead”. This was followed by

pleas for help. At no point did the appellant attempt to phone the emergency services. The

appellant’s account to his neighbour as they went upstairs to the appellant’s flat was that the

deceased had been arguing with someone in the kitchen whilst the appellant was taking a

shower. The neighbour said that he would have heard the shower if that had been the case.

At 1.29am the appellant phoned his brother and said that Neomi was dead. “Someone has

been in the flat and stabbed Neomi in the back”. At 1.55am he told a friend the same story

about someone breaking in while he was having a shower. When the police arrived, he told

them that he had been in the shower and had heard a thump.

[10] The appellant was interviewed for over 3 hours, during which he provided an

account which varied on a number of matters. He had accepted that he had been angry in

Hudson’s Bar because of the way in which the deceased had been dancing. He then said

that he had made things up with the deceased and they had returned to the flat together and

entered using his keys. This was notwithstanding: contrary CCTV images showing the

deceased going home alone and the appellant with his cousin; and his cousin’s account of

the appellant breaking in. The appellant told the police that he had gone for a shower and

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had heard a bang followed by a scream. He said that he had a feeling that someone had

been watching them as they entered the close. The CCTV images showed that no-one

entered or exited the close other than the deceased, the appellant and his cousin during the

relevant period.

[11] The appellant did not give evidence. His mother was adduced by the Crown. She

said that, when she had visited the appellant in prison, he had given an account of the

deceased approaching a car with no number plates some two weeks prior to the deceased’s

death. There were two masked men in the car. The deceased had told the appellant that she

had to talk to the men. She had handed them cash. On the night of the deceased’s death, the

appellant had fallen out with the deceased. He had walked home with his cousin. The

chain was on, but the deceased had told him that he should break the door down if the chain

was on because she would not have put the chain on unless something was wrong. The two

men were in the flat. They said that the deceased owed them a lot of money. It had been the

two men who had assaulted the deceased.

Sentence

[12] The appellant was aged 23 at the time of the murder. According to the trial judge, he

showed no sign of remorse during the trial. He maintained his innocence throughout, by

advancing the diverse and fanciful accounts which he had repeated to others. That, in the

mind of the judge, served only to enhance the suffering which had already been experienced

by the deceased’s family. Victim impact statements had been lodged and were taken into

account.

[13] The appellant had a previous conviction for domestic assault, which had attracted a

£500 fine. The Criminal Justice Social Work Report described the appellant’s background as

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involving his parents separating when he was three years old. When he was 13 his mother

went with him to the United States, having reconciled with his father. The appellant

returned to Angus when he was 17 and his mother did so too shortly thereafter. There is

little of note reported in connection with the appellant’s education or employment. He was

an occasional cocaine user. The CJSWR described the appellant as emotionally detached

when discussing the offence. There was a lack of victim empathy. He had falsely told the

social worker that the trial judge had disallowed evidence which pointed to his innocence.

He had told the social worker that the deceased’s behaviour, during their 11 week

relationship, had at times been “disrespectful” and “provocative”. He had intended to sort

it out.

[14] The trial judge regarded the appellant as a possessive and manipulative young man

who expected others within a domestic relationship to conform to his expectations. He was,

in short, dangerous. The judge explained that she took into account, in terms of section 1 of

the 2016 Act, the aggravation of the murder having been committed in a domestic setting. In

her sentencing statement, she said that she would not increase the punishment part “in these

circumstances”. In her report to the court, she stated (para 38) that she did not enhance the

sentences further to reflect the aggravation as she had had regard to the domestic

relationship in selecting the punishment part.

Submissions

[15] The submissions on the appellant’s behalf recognised the necessity of selecting a

lengthy punishment part, even for a person of the appellant’s relative youth. Weight ought

nevertheless to be placed upon the need for rehabilitation in a person of the appellant’s age.

As matters stood, he would be in his mid-forties before he could apply for parole. How then

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could rehabilitation operate, when a period of 22 years had to pass before the appellant

could contemplate a return to society? It was important to provide an offender with some

hope of when and how he might contribute to society in the future. Without that, any self-

drive to rehabilitate would be diminished.

Decision

[16] This was an exceptionally brutal murder on a young woman who had done nothing

other than attempt to enjoy herself on the day of the annual Angus show. The murder was

premeditated in the sense that whatever had happened in Hudson’s Bar had long since

passed before the appellant broke into the flat and attacked his partner. Apart from the

relative youth of the appellant at the time, there were no mitigating features. As the trial

judge observed, the appellant has shown no remorse. He has maintained his innocence by

reporting fanciful accounts in a hopeless effort to conceal his actions. The domestic nature

of the attack is, in terms of the 2016 Act, an aggravating feature given the relationship of

mutual trust which is assumed to be a part of a social partnership.

[17] In selecting an appropriate sentence, the court normally has to have regard to the

prospects of successful rehabilitation, especially in a relatively young man (Scottish

Sentencing Council: Principles and purposes of sentencing, at para 5). In setting a punishment

part of a life sentence, the focus is, however, on determining a period which satisfies “the

requirements for retribution and deterrence” (Prisoners and Criminal Proceedings

(Scotland) Act 1993, s 2(2)). In the current prison and parole regime, and depending no

doubt on the offender’s attitude and conduct in prison, that rehabilitation will not

commence only when the punishment part has expired. It ought to have started, in the form

of courses, family and community visits, and ultimately the open prison regime, well in

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advance of that date. The process may be a long and gradual one, but its content ought to

provide some prospect of reform at a relatively early stage of the custodial term. Whether

that will be the position with the appellant remains to be seen.

[18] Section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 not only

provides that, in circumstances such as the present, the domestic aggravation must be taken

into account, it also states that the court must:

“(5)(d) state –

(i) Where the sentence imposed… is different from that which the court

would have imposed if the offence had not been so aggravation, the

extent of and the reasons for that difference; or

(ii) Otherwise, the reasons for there being no such difference.”

It is not clear that the trial judge has fully complied with this provision in stating simply that

she had already taken the whole circumstances into account when selecting the punishment

part. There is no written record of the reason for this in the minutes. Although the exercise

may be somewhat artificial in some, particularly severe, cases, the statute envisages the

court either (i) contemplating what sentence might have been imposed for a similar crime in

a non-domestic setting and then increasing it to take account of the aggravation or (ii)

explaining why it is not doing so.

[19] Although the punishment part is a severe one, such a sentence is appropriate for this

type of brutal killing even by a man in his early twenties (see eg Davidson v HM Advocate

[2019] HCJAC 84 and Rauf v HM Advocate 2019 SCCR 47). Particular attention must be paid

to the domestic aggravation. Having regard to the circumstances, all of which the trial judge

took into account, the court is not satisfied that the punishment part can be regarded as

excessive. The appeal is refused.