APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Mackay of Drumadoon	[2009] HCJAC 93 Appeal No: XC159/09 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in APPEAL by JOANNE SWEENEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Watson QC et Taggart; Barony Law Practice

Alt: Hughes, AD; Crown Agent

8 December 2009

[1] The appellant was convicted after trial in the High Court at Glasgow of a charge of murder. The appellant had faced that charge with two co-accused, Alexander Leith and Paul Pollin. At an early stage in the proceedings the co-accused Pollin pled guilty to the charge of murder. The appellant and the co-accused Leith proceeded to trial. After trial both were convicted of murder.

The charge of which the appellant was convicted was in the following terms:

"(1) on 7 July 2008 at 3rd floor common landing at 75 Plean Street, Glasgow you ALEXANDER LEITH, and JOANNE SWEENEY, whilst acting with Paul Pollin did assault Edward McGonagle, formerly residing at Flat 11/4, 75 Plean Street, Glasgow and punch him to the head, did repeatedly strike him on the body with knives or similar instruments, repeatedly kick him on the body, cause him to fall to the ground and you did murder him;

you JOANNE SWEENEY did commit this offence while on bail, having been granted bail 17 January 2008 at Glasgow Sheriff Court."

[2] Following the trial, the trial judge imposed sentences of life imprisonment on each of the accused. The punishment part in respect of the co-accused Leith was 17 years. The punishment part in respect of the co-accused Pollin was 13 years, which had been reduced from one of 16 years by virtue of his plea of guilty. The punishment part in respect of the appellant was 12 years. The trial judge made no order in relation to the bail aggravation in the charge of which the appellant was convicted.

[3] In his report to this court the trial judge succinctly summarised the circumstances giving rise to the convictions. The background to the murder had been certain ill feeling on the part of the co-accused Leith and Pollin towards of Edward McGonagle (the deceased). That ill feeling had arisen the day before the murder. The following day, shortly before he was murdered, the deceased had assaulted Catherine Toal, who was the girlfriend of the co-accused Pollin. On the evidence, this assault had been of a comparatively minor nature. However, the incident involving Miss Toal became the catalyst for the murder. Following the assault on her, she phoned the co-accused Pollin on his mobile phone. She advised him of what had happened. When he received the phone call the co-accused Pollin was not at home. He immediately returned there. At his home were the co-accused Leith and the appellant. The co-accused then obtained two knives from the kitchen, an action of which the appellant was aware. All three of them immediately made their way to the block of flat where the deceased lived. They went there with the intent of causing serious harm to the deceased, by the use of deadly weapons, namely the knives. Each of the co-accused Pollin and Leith was armed with a knife. In the course of their journey to the deceased's flat the accused Leith evinced malice and ill-will towards the deceased. He had on previous occasions evinced such malice and ill-will in relation to the deceased.

[4] On their arrival at the block of flats in which the deceased resided, all three accused went to a particular floor. On that floor they found the deceased, who was standing on the landing, waiting for the lift. On the evidence the jury heard, the deceased was attacked more or less immediately. Both of the co-accused Pollin and Leith used the knives they had with them and each repeatedly stabbed the deceased. As a result of the injuries that were inflicted on the deceased with the use of knives, he died. The part played by the appellant in the assault upon the deceased involved her kicking him. According to the trial judge the evidence disclosed that the attack on the deceased had been vicious, sustained and utterly cowardly, because it had involved an attack by three people, two of whom were armed with knives, on a single unarmed man.

[5] In his report to this court the trial judge indicates that he chose a lower figure for the punishment part for the appellant, than those imposed in respect of the co-accused, in order to reflect the lesser role she had played in the assault upon the deceased. She had not taken a knife with her, nor had she used a knife during the fatal assault. As we have indicated, her role in the assault on the deceased was limited to kicking him. The trial judge indicates that he was also of the view that he could distinguish between the appellant and her two co-accused, given her lack of any record for violence and taking account of the circumstances referred to in the Social Enquiry Report, upon which he had been addressed by senior counsel for the appellant. He indicates, however, that he regarded the murder in which the appellant had taken part as having been a serious one. It had not been a case of a fight which had developed spontaneously on the street. Rather it had been a planned assault on the deceased during which the three accused, including the appellant, had set off from Pollin's house and made their way to the deceased's block of flats, with the two co-accused having armed themselves with deadly weapons. They had gone there with the intention of causing serious harm to the deceased. The appellant had accordingly taken part in what was a revenge attack.

[6] In arguing the appeal before this court, senior counsel for the appellant submitted that having regard to the limited involvement of the appellant in the commission of the murder and to her personal circumstances, a punishment part of 12 years was excessive. Senior counsel accepted that it had been open to the jury to hold that the appellant had been engaged, on an art and part basis, in the commission of the murder. However he submitted that it was clear from the evidence led at the trial that the murder would have taken place whether or not the appellant had been present and whether or not she had played any part at all. All the appellant had done had been to kick the deceased on his legs, after the two co-accused had commenced their assault on the deceased. It was explained that the appellant, for her part, had never sought to deny the kicking. She had been unable to provide any explanation for having become involved in what had happened. She had never met the deceased before, nor had she had any knowledge of the deceased prior to the date when the murder took place. It was explained that at the time the appellant was addicted to drugs. She was supplied by drugs by the co-accused, which was how she had come to be present in the house of the co-accused Pollin. She had been suffering from withdrawal symptoms caused by her addiction to heroin.

[7] Senior counsel confirmed that whilst the appellant had a number of previous convictions, unlike the co-accused, she had none for violence.

[8] Senior counsel explained that the trial judge had available to him a Social Enquiry Report. That report disclosed that during December 1994, when the appellant had been 8 years of age, she was one of a number of children who had been sexually abused by an elderly neighbour. The neighbour was subsequently convicted of child abuse offences and died in prison. The Social Enquiry Report narrates that following upon this abuse the appellant and her sister, who had also been a victim of abuse, had been supported by the Family Support Project in Drumchapel. That project is a resource which specifically works with victims of child sexual abuse and their families. It was noted in the Social Enquiry Report that the records available to the Social Work Department indicated that the appellant and her family had completed the programme of intervention provided by the Project.

[9] The Social Enquiry Report also noted that the appellant next came to the attention of the social work services five years later, when she was reported to be smoking heroin, misusing alcohol, truanting from school and staying out overnight, without her mother's knowledge. Social work records described continuing concerns identified by the appellant's mother, other members of her family and social workers as to the potential risks to the appellant. The Social Enquiry Report notes that whilst various arrangements were put in place for the appellant over the following years, including a placement at Kerelaw Residential School and support from addiction and psychiatric services, it appeared that the appellant had felt unable to engage with any of these supports. Furthermore, although she had been the subject of a supervision requirement made by a children's hearing, it had not been possible to assign a social worker to supervise her case because of a chronic shortage of qualified social workers during this period. For that reason her case had only been managed by a number of senior social work staff.

[10] Senior counsel explained that on reviewing the case prior to the hearing of this appeal, those acting for the appellant had decided to instruct a further report. Such a report had been obtained from Dr Gary Macpherson, who had in fact prepared two reports, dated 16 July 2009 and 29 September 2009. Both of these reports were before the court. In preparing his reports Dr Macpherson had been given access to the appellant's clinical records and her social work files. The second of his reports narrates how, following upon the serious child abuse to which the appellant had been subjected, her general practitioner had referred the appellant to the Department of Child and Families Psychiatry for assistance. That had been done on 13 January 1995. However, the appellant had not in fact been offered an appointment with that department until some 20 months later. An assessment by a nurse in the Department was carried out at that time. but no follow up appointment had been arranged.

[11] In Dr Macpherson's opinion the appellant is a vulnerable young female. From his review of her history, as disclosed in the records to which he had access and during his meeting with the appellant, he took the view that she had experienced a marked change in her behaviour and social functioning from around 11 years of age. That change in functioning, and her subsequent downward spiral into substance abuse, criminality and prostitution was, in his opinion, likely to be associated with the sexual abuse she had experienced as a child. In his report, Dr Macpherson records that it appears that the appellant had been referred to addiction agencies on several occasions. However there appeared to have been no clear formulation of the difficulties the appellant faced, nor any offer of support made by those in a position to assist her with her drug addiction problems. Dr Macpherson expressed the opinion that "her pathway into addiction, prostitution and criminality might have been averted by more careful assessment and care following the sexual abuse and support from mental health services to deal with the effects of the abuse."

[12] In considering whether the punishment part imposed on the appellant was excessive, we recognise that a punishment part as low as 12 years would only be appropriate in a case where there were strong mitigatory circumstances. Clearly the trial judge took the view that the limited role the appellant had played in the commission of the murder and the contents of the Social Enquiry Report constituted such mitigatory circumstances. However in our opinion the further information which is now before this court and is to be found in Dr Macpherson's reports demonstrates that not only are the mitigatory circumstances strong, they are exceptional. This is a case in which the appellant was at the age of 8 the victim of serious sexual abuse. Following upon that abuse, she failed to receive, through no fault of her own, the psychiatric and other support services that a young victim of serious sexual abuse is entitled to. Even when she was made the subject of a supervision requirement, a shortage of qualified social workers resulted in her not being supervised in the manner that was to be expected. That was the backdrop to the appellant having become addicted, initially to alcohol and then to heroin.

[13] In our opinion, the reports that are now before us indicate that over a long period of time dating back to 1994, the appellant has not received the level of support from social work, mental health and other support agencies that ought to have been provided. On the basis of the information before us, we are inclined to accept Dr. Macpherson's opinion that the appellant's involvement in the activities that have characterised her life in recent years, namely addiction to drugs, prostitution and criminality, might have been prevented, or at least reduced, had she been more carefully assessed and supported by the professionals and agencies who were in a position to do so. In our opinion, the personal circumstances of the appellant since 1994 can properly be described as exceptional. In these very special circumstances we are persuaded that a punishment part of 12 years is excessive. We propose that it should be reduced to one of 10 years.