[2007] HCJAC23

XC839/06

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL

HER MAJESTY'S ADVOCATE

APPELLANT;

against

ROBERT JAMES TURNER

RESPONDENT.

Act: Murphy, Q.C., A.D.; Crown Agent

Alt: Thomson, Q.C., Mitchell; Angus McLennan & Co

24 April 2007

Introduction

[1] This is an appeal under section 108(1)(a) and (2)(b)(i) of the Criminal Procedure (Scotland) Act 1995 in which the appellant contends that the punishment part of a sentence of life imprisonment imposed on the respondent, Robert James Turner, was unduly lenient.

[2 ] The respondent was convicted in respect of three charges. Charge 1 was in the following terms:

"on 28 September 2005 ... you ... did assault John Henry Cowan or McConnell ...and did present a loaded crossbow at him, struggle with him and strike him on the body with a knife or similar instrument, all to his severe injury, permanent disfigurement and to the danger of his life and did attempt to murder him;

you ... did commit this offence while on bail, having been granted bail on 15 September 2005 at Falkirk Sheriff Court".

Charge 2 was in the following terms:

"on 13 or 14 May 2006 ... you ... and DARREN WILSON did assault Marc Christopher Lancashire ... and did repeatedly punch him on the head and body, and did repeatedly strike him on the body with a knife or similar instrument, all to his severe injury and you did murder him;

you ... did commit this offence while on bail, having been granted bail on 3 October 2005 at Edinburgh Sheriff Court".

Charge 3 was one of attempting to defeat the ends of justice by washing bloodstained items after the events mentioned in Charge 2.

[3 ] In respect of Charge 1 the respondent was sentenced to seven and a half years imprisonment, six months of which related to the bail aggravation. That sentence was backdated to 15 May 2006. In respect of Charge 2 the respondent was sentenced to life imprisonment, with a punishment part of ten years. That sentence was not backdated. In respect of Charge 3 the respondent was sentenced to six months imprisonment, backdated to 15 May 2006. The sentences in respect of Charges 1 and 3 were ordered to run concurrently.

The appellant's submissions

[4 ] The Advocate depute submitted that, by the application of two considerations to the circumstances of the case, it could be seen that the punishment part selected by the trial judge was unduly lenient. Those considerations were, first, the terms of section 2(2)(a) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (as amended) ("the 1993 Act") and, secondly, the guidance given in Walker v H. M. Advocate 2002 SCCR 1036.

[5] Section 2(2) of the 1993 Act prescribes that the punishment part of a sentence of life imprisonment is to be:

	"such part as the court considers to satisfy the requirements for retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public), taking into account -
	(a)	the seriousness of the offence, or of the offence combined with other offences of which the life prisoner is convicted on the same indictment as that offence;
	(aa)	...
	(b)	any previous conviction of the life prisoner; and
	(c)	..."

Paragraphs (aa) and (c) of subsection (2) are of no relevance in the circumstances of the present case. The Advocate depute indicated that the respondent's previous convictions were all the result of summary proceedings, and that, notwithstanding paragraph (b), he did not rely on them as affecting the length of the appropriate punishment part. He also indicated that, notwithstanding the terms of paragraph (a), he placed no reliance on the respondent's conviction in respect of Charge 3. His submission was that the sentencing judge had failed to take into account the seriousness of the attempted murder of which the respondent was convicted in terms of Charge 1.

[6 ] In Walker the court had before it an appeal against a punishment part of 30 years ordered in an extremely serious case of murder. The court took the opportunity of giving guidance on the proper approach to determining the length of the punishment part. The Advocate depute drew our attention in particular to the following passage (at 1041F to 1042B):

"[7] In Stewart v H. M. Advocate [2002 SCCR 915] the court pointed out at paragraph 18 that it was plain that there could be a wide variation in the seriousness of a murder case according to the circumstances in which it took place and the circumstances of the offender. It mentioned, as examples of factors which were relevant to aggravation, conduct suggesting an intention to kill, the use of prolonged or savage violence and the use of a lethal weapon. Other examples are where murder is committed for the purpose of gain or in an attempt to pervert the course of justice, or where the murderer has sought to evade detection by concealing or dismembering the body,

[8 ] In the absence of significant mitigation most cases of murder would, in our view attract a punishment part of 12 years or more, depending on the presence of one or more aggravating features. In the individual case account has also to be taken of the seriousness of the offence combined with other offences of which the accused has been convicted on the same indictment, along with any previous convictions of the accused, in accordance with the terms of section 2(2) of the 1993 Act, as amended, to which we have referred. As the sentencing judge suggests in his report in the present case a number of murder cases might be of such gravity - for example, where the victim was a child or a police officer acting in the course of his duty, or where a firearm was used - that the punishment part should be fixed in the region of 20 years. However, there are cases - which may be relatively few in number - in which the punishment part would have to be substantially in excess of 20 years."

[7 ] Turning to the circumstances of the present case, the Advocate depute drew attention to the terms in which the sentencing judge, in his report, summarised the considerations which he took into account. At page 7 of the report he said:

"So far as charge 2 was concerned, various factors had to be taken into account. First, he was once more on bail. Secondly, there had been the earlier aggressive behaviour by [the deceased], both towards [the co-accused] and in threatening [the respondent's] son. In the subsequent affray, [the deceased] was armed with at least one knife. On the other hand, [the respondent] was meant to have been in charge of two young children and had no need to leave [the co-accused's] flat to involve himself in any further violence. The situation was rendered more serious by [the respondent] taking a knife with him as he did so. On various CCTV stills, [the respondent] is seen coming down the stairs of the flat while [the co-accused] and [the deceased] are apparently fighting. He is then seen to intervene and apparently strike the single blow that killed [the deceased], before making his way back up the stairs, apparently carrying a weapon. His whole involvement in the incident took less than a minute. The attack was thus a deliberate and vicious one."

At page 8 the sentencing judge added:

"In each case [i.e. in respect of Charges 1 and 2], there were elements of provocation involved which, certainly, could not excuse the appellant's [sic; sc respondent's] actions but did, in my view go a little way to explain and mitigate the crimes he committed."

[8 ] The Advocate depute placed emphasis on the sentencing judge's reference to the repondent's having taken a knife with him from the flat. Although he accepted that any knife taken by the respondent from the flat was not the one which he used to deliver the fatal blow, he submitted that in so arming himself the respondent had shown an intention to use a potentially lethal weapon. If it were the case, as the Advocate depute accepted, that the fatal blow was struck with a knife dropped by the deceased, the implication was that by the time that blow was struck, the deceased was already disarmed. The Advocate depute also relied on the sentencing judge's description of the attack by the respondent as a "deliberate and vicious one". There was need for a deterrent sentence where a knife was deliberately carried into a fight. Having regard to these considerations, if regard were had only to the circumstances of Charge 2, a punishment part of only ten years was unduly lenient.

[9 ] The Advocate depute submitted, however, that attention could not be confined to the circumstances of Charge 2 in selecting the punishment part of the life sentence. Section 2(2)(a) of the 1993 Act required account to be taken of the seriousness not only of the offence that attracted the sentence of life imprisonment, but also of other offences of which the life prisoner was convicted on the same indictment. Here, Charge 1 involved a very serious attempted murder, involving the discharge of a lethal weapon, a crossbow, and the infliction of serious, life threatening, injuries with a knife or a crossbow bolt (see the sentencing judge's report at pages 3 to 4). It was evident that the sentencing judge had failed to take account of Charge 1 when selecting the punishment part. The effect was that Charge 1 did not in any real practical sense attract any punishment at all. Since the sentence in respect of Charge 1 was necessarily concurrent with the life sentence (except to the small extent resulting from the backdating of the sentence in respect of Charge 1), it had only that marginal practical effect. It was to avoid that sort of consequence of concurrent sentences that section 2(2)(a) had been amended to require account to be taken of other offences on the same indictment. The sentencing judge's failure to do what section 2(2)(a) required resulted in a punishment part which was on that account too unduly lenient.

The respondent's submissions

[10 ] Mr Thomson, for the respondent, accepted that the punishment part was lenient, but submitted that it was not unduly lenient. As counsel who had appeared for the respondent at the trial, he was able to give fuller detail about certain of the circumstances of Charge 2 than appeared in the sentencing judge's report. He referred to the fact that, as the sentencing judge said, the deceased was "armed with at least one knife". One knife was dropped in the struggle between the co-accused and the deceased, whereupon the respondent drew it towards him with his foot and picked it up. In the continuing struggle between the co-accused and the deceased, the deceased reached for a second knife, and it was then that the respondent lunged in with the knife he had picked up. Although the sentencing judge described the attack as deliberate and vicious, Mr Thomson informed us that the pathologist's evidence was that the injury suffered by the deceased had required only moderate force. Mr Thomson also indicated that there had been no direct evidence that the respondent had armed himself before leaving the house. That conclusion was a matter of inference from his being seen to go into the kitchen. The CCTV footage, however, did not show any knife in his possession as he came downstairs. Mr Thomson also reminded us of what the sentencing judge had said in his report about there being elements of provocation in both charges. In all these circumstances, Mr Thomson submitted that the punishment part had not been shown to be unduly lenient.

Discussion

[11 ] As was said by the Lord Justice General in H. M. Advocate v Bell 1995 SCCR 244 at 250C:

"It is clear that a person is not to be subjected to the risk of an increase in sentence just because the appeal court considers that it would have passed a more severe sentence than that which was passed at first instance. The sentence must be seen to be unduly lenient. This means that it must fall outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate. Weight must always be given to the views of the trial judge, especially in a case which has gone to trial and the trial judge has had the advantage of seeing and hearing all the evidence. There may also be cases where, in the particular circumstances, a lenient sentence is entirely appropriate. It is only if it can properly be said to be unduly lenient that the appeal court is entitled to interfere with it at the request of the Lord Advocate."

[12 ] In our opinion, if attention were confined to the circumstances of Charge 2, it could not be affirmed that the punishment part ordered by the sentencing judge was unduly lenient. It was no doubt lenient, but there were mitigating circumstances that the sentencing judge was entitled to take into account. As the sentencing judge mentioned in his report, there were elements of "provocation", insufficient to amount to provocation in law so as to result in reduction of the offence from murder to culpable homicide, but nevertheless relevant to the assessment of the punishment part. In addition, in the light of the information provided to us, the respondent's intervention can be regarded as a single blow of moderate force, albeit having fatal consequences. Further, in the light of the information provided by Mr Thomson, we do not consider that too much weight should be attached to the inference that the respondent armed himself with a knife before leaving the flat. We are not satisfied that, on the circumstances of Charge 2 alone, the punishment part of ten years was outside the range which the sentencing judge could reasonably have considered appropriate.

[13 ] We are, on the other hand, satisfied that the sentencing judge failed properly to apply section 2(2)(a). That provision obliged him to take into account not only the circumstances of the murder, but also those of the attempted murder. The latter was a very serious offence. We find nothing to indicate that the sentencing judge had regard to the seriousness of Charge 1, in combination with the seriousness of Charge 2, when selecting the punishment part. We are satisfied that, when account is taken of the seriousness of the murder, combined with the seriousness of the attempted murder, the punishment part of ten years is clearly outwith the range that can reasonably be considered to be appropriate.

Result

[14 ] We therefore allow the appeal, and substitute a punishment part of thirteen years, which is the period which we consider appropriate in all the circumstances laid before us.