Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2023/2023_HCJAC_10.html
Cite as: 2023 GWD 15-150, 2023 SLT 513, [2023] ScotHC HCJAC_10, 2023 SCCR 161, [2023] HCJAC 10, 2023 JC 137

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2023] HCJAC 10

HCA/2023/048/XC

Lord Justice Clerk

Lord Woolman

Lord Matthews

STATEMENT OF REASONS

issued by LADY DORRIAN, the LORD JUSTICE CLERK

CROWN APPEAL AGAINST SENTENCE

HIS MAJESTY'S ADVOCATE

Appellant

against

ANDREW PALFREMAN

Respondent

Appellant: R Charteris KC, Solicitor General for Scotland; the Crown Agent

Respondent: I Paterson (sol adv); Corrigan Law, Glasgow

_____________

6 April 2023

Introduction

[1]

This is a Crown appeal against a life sentence for murder by stabbing with a

punishment part of 12 years.

Background

[2]

The respondent was convicted of murdering Barry McLachlan by striking him on the

head and body, and repeatedly striking him on the head and body with a knife. The two

men were friends and had spent the day of the murder in each other's company, mainly at

the home of the respondent. It seems that they both consumed alcohol and drugs.

Neighbours heard the sounds of arguing and fighting during the course of the evening.

From about 11 pm and into the early hours of the morning the respondent sent messages to

various individuals in these terms:

"brother yer no gawny hear fae is again just prodded fuck oot a cunt in ma gaff n hes

deed oot the close man"

"just done cunt oot ma close"

"just stabbed fuck oot a guy n hes lyin hawf deed in my close"

"cunts fucked man, dafty anaw"

"answer ma call or yer no gawny hear fae is again just done a cunt"

Some of these messages were accompanied by images of the deceased's body, and laughing

emojis.

[3]

The respondent eventually called the emergency services just before 4am. He stated

he had stabbed the deceased when fighting with him. He stated, "I completely freaked out

... just sort of self-defence." He acknowledged that the body had been lying for some time

and that he had disposed of the knife. He added that he suffered from serious mental health

problems, and referred to a "dark passenger" and "Mr Dark Side".

[4]

When police arrived the stairwell was slippery with blood, and the body of the

deceased was on the landing outside the respondent's flat. After being cautioned, the

respondent stated "I did it. I stabbed him. I didn't mean it". He said that the deceased had

shouted at a dog which the deceased was looking after, and this had led to a fight. He made

numerous statements to police, and told officers that he had heard the deceased crying out

for help. The respondent had gone to bed hoping when he woke up it would not have

happened. He continued to assert that he had acted in self-defence and that the deceased

had been the aggressor, and had been nasty to the dog. The police recovered the knife from

the back garden where the respondent told them he had put it.

[5]

The respondent's account was not entirely consistent, saying at once that he had

presented the knife to scare the deceased, and to protect himself, and had blacked out after

that, yet also saying that he had "stuck it into him". The jury, having heard that there were

6 stab wounds from 7 blows, 2 of which could not be survived, clearly rejected his claims of

self-defence and provocation, both of which had been advanced at trial.

Sentence

[6]

The judge approached the length of the punishment part in three stages. First, he had

regard to the five judge decision in HMA v Boyle 2010 JC 66. It suggested that a starting

point of 16 years was appropriate where an accused had armed himself with a knife with a

view to assaulting his victim. Secondly, the trial judge reduced that figure by one year,

because he thought that the respondent had acted impulsively by using a knife when the

quarrel moved into the kitchen. In doing so, the trial judge had regard to the subsequent

conduct and remarks by the respondent noting that:

"I could have uplifted the sentence significantly because of his behaviour. I decided

... on balance that I should acknowledge that he did after a couple of hours come to

his senses. He did not run away. He admitted guilt ... I thought that 15 years was

an appropriate headline sentence."

[7]

Thirdly, the trial judge reduced the sentence by a further three years, to reflect the

respondent's history of mental health problems. They had been referred to in a psychiatric

report commissioned pre-trial to determine whether he was fit to plead. The psychiatrist

had access to the GP notes, which stated that the respondent (a) had been referred to mental

health services by his GP on five occasions in the period 20182020, and (b) referred to

Mr "Dark Side" and expressed concern that he could not control his desire to commit

violence, which echoed how he had spoken to the police officers. The judge states "I

thought there was evidence in the psychiatric report that his mental health problems had

affected his self-control and disposed him to violence". He also noted that the respondent

"did not have an extensive criminal record. He had one previous conviction in 2016. It

covered two offences. Both involved violence." His difficult childhood and adolescence

was a significant mitigatory factor.

Submissions for the Crown

[8]

The sentence was unduly lenient (HM Advocate v Bell 1995 SCCR 244). Knife crime

continues to be a scourge in Scotland, and deterrence is an important factor in the sentencing

of such offences. In cases of murder a punishment part as low as 12 years would not be

appropriate in the absence of strong mitigatory circumstances: Boyle, para 14. In the present

case, the trial judge has erred in selecting the starting point for the sentence. A lack of

premeditation does not automatically result in a starting point of less than 16 years:

McGrory v HM Advocate 2014 SCCR 140.

[9]

The trial judge erred in his assessment of the seriousness of the offence, the

culpability of the offender and the harm caused. Categorising the actions of the respondent

as impulsive does not take account of the severe nature of the attack having regard to the

number, type and location of the stab wounds. He gave undue weight to the respondent's

mental health issues standing that the psychiatric report said that he retained insight into his

behaviour and mental state, with no evidence of a major mental illness that would impair

his insight or decision making. He did not take due account of the prior convictions,

including the use of weapons. He failed to consider the whole context in which the

respondent failed to seek assistance for the deceased, despite hearing him cry for help , but

instead sent mocking messages to acquaintances. In any event this factor had already been

taken into account in the selection of a headline sentence of 15 years.

Submissions for the respondent

[10]

Weight should always be given to the views of the trial judge, especially in a case

which has gone to trial and where the judge had the advantage of seeing and hearing the

witnesses (Bell, p 251). The sentence was lenient but not unduly so. The respondent was

only 26, there had been no premeditation, he had called 999 eventually, he expressed

remorse to the author of the CJSWR. It was suggested that the judge was entitled to

conclude that there had been a loss of control by the respondent, based on what he said in

the 999 call to the effect that he had "blacked out, freaked out". The strongest mitigation lay

in his personal circumstances and disturbed childhood.

Analysis and decision

[11]

In our view the sentence falls outwith the range of sentences which a judge at first

instance, applying his mind to all the relevant factors, could reasonably have considered

appropriate. There is nothing in the circumstances of this case that puts us at any

disadvantage compared to the trial judge. He fell into error in three primary respects.

[12]

First, he arrived at a headline sentence, which he then discounted for various factors

he considered to represent mitigation. As the court noted in HMA v MG [2023] HCJAC 3

(para 12):

"The Scottish Sentencing Council Guideline on the Sentencing Process makes it clear

that the headline sentence is that arrived after consideration of all the circumstances

of the case, including both aggravating and mitigating factors."

Such a sentence already reflects the factors advanced by way of mitigation.

[13]

Secondly, he considered that a punishment part of 16 years would only be applicable

in a case where the accused had gone armed with a knife meaning to assault the victim, as in

Boyle. A figure at that level or above may be appropriate, depending on the circumstances

of the case, and the nature of any aggravations.

[14]

Thirdly, he did not properly recognise several significant aggravations, and the

absence of virtually any mitigation. In particular:

(a).

The nature of the attack

There were injuries indicative of a physical assault consistent with the libel including areas

of bruising, a blunt force laceration to the head which was not consistent with, say, a fall;

and a collection of bruises to the thumb and wrist described as potential defensive injuries.

According to the post mortem report, five of the stab wounds would have required at least

moderate force. The knife injuries included

(i)

A stab wound under the jaw passing through muscles underneath

(ii)

A stab wound to the left side of the neck penetrating through the base of the

neck and severing blood vessels at the top of the heart. This alone would have been

fatal.

(iii)

A stab wound on the upper left side of the chest penetrating the side,

damaging a rib, and puncturing the lung.

(iv)

A further wound on the side had two tracks explicable if a knife was

inserted, partially withdrawn, and re-inserted at a different angle. One of these

tracks travelled down, damaging the bowel; the other travelled upwards penetrating

the heart and would alone have been fatal injury.

Taken altogether, these suggest an attack which was both sustained and vicious.

(b).

The mental element

There was no reasonable basis to conclude that the respondent had acted impulsively, or

that his mental health problems had affected his self-control and disposed him to violence.

That does not accord with the vicious and sustained nature of the attack; nor does the

callous behaviour and attitude of the respondent after the attack. The psychiatric report did

not describe any concern regarding his mental state in the run up to, during, or after, the

alleged offence; the author concluded that he had no delusional beliefs and that he retained

insight into his behaviour and mental state. The report also noted that there had been no

follow up from earlier mental health referrals, and a specific finding at one examination that

"there was no evidence of an insight impairing mental illness". There was no evidence of a

major mental illness which would impair his insight or decision making. It is true that he

told the psychiatrist that when he gets angry he cannot control himself, but in light of the

evidence as a whole, including the psychiatric evidence, and the comment from the

respondent that he "stuck it into him", this is no basis for the trial judge to have reached the

conclusion he did. Moreover, that conclusion is not consistent with the defence advanced,

which was one of self-defence, or with the jury's rejection of provocation.

(c).

Assessing mitigation

The respondent is hardly entitled to credit for the fact that he "did not run away", having

gone to bed instead of seeking help, despite hearing the deceased crying for help, and

waiting for four hours before calling an ambulance. The trial judge erroneously stated that

the respondent admitted his guilt: that is precisely what he did not do. He admitted causing

the death, but disputed any criminal responsibility therefor.

(d)

Prior convictions

The trial judge did not give adequate weight to the previous convictions. In stating only

that they "involved violence", he fails to record or to take account of that both involved a

weapon, the first being a bottle, and the second a knife which had been used to inflict severe

injury and permanent disfigurement during an attempt to rob.

[15]

For these reasons the appeal must succeed. We will quash the punishment part of

12 years and substitute one of 17 years.