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Cite as: 2022 SLT 1299, 2023 SCCR 30, [2022] ScotHC HCJAC_40, 2022 GWD 35-522, [2022] HCJAC 40

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2022] HCJAC 40

HCA/22-194/XC

Lord Matthews

Lord Tyre

Lord Boyd

STATEMENT OF REASONS

delivered by LORD TYRE

APPEAL AGAINST SENTENCE

LUKASZ CZAPLA

Appellant

against

HIS MAJESTY'S ADVOCATE

Respondent

Appellant: Macara KC (Sol Adv); Beltrami & Co Ltd

Respondent: E Campbell, AD; Crown Agent

27 October 2022

Introduction

[1]

The appellant was convicted after trial of ten charges. This appeal is concerned with

only one of them: the appellant's conviction for the murder of his two year old son. The sole

issue for the jury was whether the appellant was guilty of murder or of culpable homicide

due to diminished responsibility.

[2]

The trial judge imposed the mandatory sentence of life imprisonment with a

punishment part of 23 years. The appellant contends that the punishment part was

excessive.

Circumstances of the offence

[3]

The appellant had been in a relationship with the child's mother for a number of

years. They separated sometime after the child was born. The child stayed with the

appellant at weekends. The appellant professed to be concerned that the child was not

being properly looked after by his ex-partner, but he was also jealous that she was in a new

relationship.

[4]

On the night of 20 November 2020, the child was staying with the appellant. The

appellant and his ex-partner exchanged text messages which began amicably, but the

appellant's messages became abusive when his ex-partner spoke of introducing her new

friend to the child. The accused drank beer and at least one bottle of wine. He consumed a

very large quantity of anti-depressant medication that had been prescribed to him.

According to his account, his intention was to commit suicide but because he was concerned

about his son waking to find his body and being left with a mother who abused and

neglected him, he resolved to kill his son. He shot the child in the head with ball bearings

from a BB gun but this did not kill him. The child woke up distressed and appeared to be

partially paralysed. The appellant then stabbed him in the chest with a skewer and

smothered him with a pillow. In the morning the child's mother arrived to find him dead.

[5]

At the trial three consultant psychiatrists gave evidence in relation to the jury

question of whether the appellant had had diminished responsibility at the time of the

offence. Their opinion on the appellant's mental condition was not unanimous. Dr Debbie

Mountain, who had examined the appellant very shortly after the offence was committed, at

a time when the appellant was maintaining that he could remember nothing of the killing,

found no evidence of any mental illness or mental disorder other than mild depression

which was being treated by his GP. Dr Alex Quinn considered that the appellant had a

depressive illness which had a substantial role to play in the events that led up to the killing

of his son. However in the course of the trial Dr Quinn conceded that this contradicted

information in his earlier report pointing towards narcissistic motivation rather than

altruistic motivation. He also conceded that his conclusions were dependent upon what the

appellant had told him being true. Dr Khuram Khan's opinion was that the appellant did

not suffer from frank major depressive disorder but did suffer from emotionally unstable

personality disorder. Dr Quinn disagreed with Dr Khan's diagnosis and observed that

Dr Khan had not used the conventional tools used to diagnose emotionally unstable

personality disorder. Dr Khan also conceded during the trial that altruism was not the

appellant's only motive.

[6]

There was evidence that following his arrest and detention, the appellant contacted

various friends to ask them to support his position that he suffered from depression.

Sentencing remarks

[7]

When sentencing the appellant, the trial judge made the following remarks:

"As a result of your actions, your son will never grow up and his loving mother has

lost him forever and can only be haunted by the knowledge of the truly evil things

you did which I will not repeat.

Suffice it to say that you showed considerable determination to ensure that a

defenceless child would die, causing him considerable distress. It is no excuse that

you were full of drink and drugs, indeed it is significantly aggravating when you

were trusted to look after a two year old. You acted out of spite, killing your own

child to punish his mother for leaving you and getting on with her life. The Court

must do all it can to deter such cruelty being inflicted on an infant."

In these circumstances the judge imposed a punishment part of 23 years.

Submission for the appellant

[8]

The appellant submits that that punishment part was excessive. Previous case law

suggested that a punishment part of 20 years was appropriate for the murder of a child. It

was acknowledged that the jury rejected the special defence of diminished responsibility,

but it was clear that the appellant had been suffering from depression during the 4-month

period leading up to the killing of his son. The appellant acted out of character not only in

committing the fatal attack but also in consuming drugs and alcohol in such quantities that

he became intoxicated to the extent that he did. His depression was not so severe that it

provided him with a defence to the charge of murder but it was a consideration that the

judge ought to have taken into account in assessing the appropriate punishment part to

impose.

The sentencing judge's reasoning

[9]

In his note to the Court the judge explained his reasons for selecting a period of

23 years as follows. It had not been suggested that the appellant suffered from a severe

depression; his prison medical notes suggested that he was able to function reasonably well

without being on an antidepressant. It was true that he had been prescribed medication at

the time of the killing but he chose to take it in quantities grossly in excess of prescribed

levels whilst also consuming beer and perhaps two bottles of wine before assaulting his son.

Bearing that in mind, the judge did not, in all the circumstances of the case, consider that the

appellant's suffering from anxiety and depression was a particularly compelling mitigating

factor given what he did and all of the circumstances in which he did it. Although

depression formed a relevant part of the background, it was not depression but self-induced

intoxication that had fuelled the jealousy and spite felt by the appellant such that all normal

inhibition and protective parental instinct was lost.

[10]

The judge was aware of guidance in Boyle v HM Advocate 2010 JC 66, where the court

endorsed the view that where the victim of murder was a child, a punishment part in the

region of 20 years might be imposed. In the appellant's case, the victim was an infant, his

two year old son whose mother had entrusted him to the care of her former partner for the

weekend. The judge concluded on the evidence that the appellant's principal motivation

was sexual jealousy of his ex-partner having formed a new relationship and that he was

substantially actuated by spite. He wanted to hurt her and chose the cruellest possible way

to do so. The child would have been defenceless in his care even if he was awake but the

attack commenced as he slept and was persisted in after the child was awake and distressed.

The appellant showed considerable cruelty and determination to kill him. Whilst it was not

possible to be certain of the precise sequence in which the injuries were inflicted, the

appellant repeatedly shot his son to the head and body, stabbed him deeply with a skewer

and smothered him with a pillow. On his own account, once the appellant realised that he

had not killed his son by shooting him, rather than seeking the assistance of an ambulance,

he used other means to ensure he died. In all the circumstances of the case the judge

considered that a punishment part of 20 years would not be sufficient to mark the gravity of

the crime and sufficiently meet the objectives of punishment and deterrence in the

circumstances of this murder of a very young child, even for an effective first offender. He

concluded that a punishment part of 23 years was the minimum he ought to impose.

Decision

[11]

The appeal proceeds on the basis that the appellant suffered from a depressed state

of mind that caused him to consume excessive alcohol and antidepressant drugs and then,

while his reasoning was impaired, to kill his son. It will be apparent from what we have

quoted from the judge's remarks and report that he did not accept that this was established

by the evidence. Rather, he considered that the appellant's primary motivation was a

spiteful desire to punish his ex-partner. Having heard the evidence, the trial judge was best

placed to assess the appellant's motivation. Nevertheless, we must consider whether he was

entitled to approach the matter in this way.

[12]

We are satisfied that he was so entitled. There was a conflict of views among the

consultant psychiatrists. Even when the psychiatrists were expressing views that the

appellant suffered from depressive illness or (as the case may be) emotionally unstable

personality disorder, they acknowledged that they did so on the assumption that the

appellant was telling them the truth. There was no requirement for either the judge or the

jury to make that assumption. The psychiatrists further acknowledged that altruism

(however misguided) was not the only motivation for the killing of the child. The jury

rejected the contention that the appellant had had diminished responsibility. That appears

to us to leave very little room for a contention that the appellant nevertheless suffered from

a mental disorder that caused him to behave out of character to the extent of committing a

horrific and sustained assault on his two year old son. We consider that there was ample

evidence to justify the approach to sentencing adopted by the judge, namely that the

primary cause of the child's murder was a desire on the part of the appellant (fuelled by

alcohol and an overdose of prescription drugs) to inflict pain on his ex -partner, and not any

form of depressive disorder.

[13]

That being so, the remaining question is whether a period of 23 years was

nevertheless too long. We conclude that the circumstances of this case as summarised by the

trial judge: the attack on the appellant's sleeping son; the cruelty and determination with

which the killing was carried out; the child's distress; and the appellant's persistence in

ensuring that he died, justify a punishment part in excess of the 20-year guidance provided

in Boyle. In all the circumstances we do not consider that a punishment part of 23 years fell

outwith the range reasonably open to the sentencing judge.

[14]

For these reasons the appeal is refused.