APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Brodie	[2012] HCJAC 134 Appeal No: XC138/12 OPINION OF THE COURT delivered by LORD CLARKE in NOTE OF APPEAL AGAINST SENTENCE by CRAIG WILLIAM GORDON ROY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: J. Scott QC, Solicitor Advocate; Bridge Litigation, Glasgow

Respondent: Niven Smith, AD

29 August 2012

[1] At a hearing on 29 August 2012 the court, having heard the submission made on the appellant's behalf, refused his appeal against sentence and indicated that full written reasons for that decision would be given in writing, in due course. The following are those reasons.

[2] The appellant stood trial at the High Court at Glasgow between 18 January and 2 February 2012 on a charge murder, viz:

"on 6 May 2010 at a wooded area adjacent to Wellesley Crescent and Mossneuk Road, both East Kilbride, you CRAIG WILLIAM GORDON ROY did assault Jack Frew, then residing at 32 Milburn Way, East Kilbride, seize him by the body and repeatedly strike and stab him on the neck and body with a knife and you did murder him."

The appellant was convicted, as libelled, of murder, the verdict of the jury being unanimous.

[3] The appellant was two months short of his eighteenth birthday at the time of this offence and was in sixth year at school. The victim was a fellow school pupil who was a year younger than the appellant. The deceased was stabbed by the appellant with a kitchen knife no fewer than 20 times on his neck and chest. He had defensive injuries to his right hand. His most significant injuries were - a wound to the left side of the neck which damaged the underlying main left sided blood vessel; four of the stab wounds to his chest which injured both lungs; and a deep incised slitting wound across his neck which had cut his lower larynx and upper trachea. Several other stab wounds to his chest caused superficial injuries to his liver. The medical evidence, at the trial, was that it was unlikely that he would have survived for more than a few minutes after his injuries were sustained. The trial judge, with justification, in his report to this court, described the attack on the deceased by the appellant as being "a brutal, sustained and merciless attack" which left the deceased dead and mutilated. The trial judge imposed a mandatory life sentence and fixed the punishment part at eighteen years.

[4] The position advanced on behalf of the appellant, at trial was that, while he admitted carrying out the attack he should be found guilty of culpable homicide, rather than murder, on the ground of diminished responsibility. As has been noted, the jury unanimously rejected that contention and found the appellant guilty of murder. Before this court it was argued that the punishment part of eighteen years fixed by the trial judge was, in all the circumstances, excessive.

[5] The background to the murder of the deceased was as follows. Both the appellant and the deceased were openly homosexual. They sat next to each other in the Higher chemistry class at the high school which they both attended. The deceased was a popular pupil at the school. The appellant had been in a relationship with a male who was about a year older than himself. In his evidence to the court he described his relationship with that person as being very important to him, so much so that he considered that, if it were to come to an end, he would be devastated.

[6] The appellant and the deceased had engaged in consensual oral sex together on two occasions. The first occasion had been in early 2008, before the commencement of the appellant's relationship with the older male just referred to. The second occasion had been in early 2010. The appellant maintained that the last mentioned occasion had left him feeling guilty about cheating on his partner and he was, he said, apprehensive that his partner would find out and end their relationship. The deceased was a flamboyant person who openly and regularly flirted with others. He would send sexually explicit text messages to persons, including the appellant. The appellant claimed that during class the deceased would touch him in a sexual manner and invite him to go to the toilet with him. On occasions the deceased would follow the appellant into the toilets and masturbate himself at the urinal next to the appellant. The appellant stated that the deceased's behaviour towards him was both unwelcome and upsetting.

[7] The circumstances leading directly to the death of the deceased, as described by the appellant himself in evidence at the trial, were as follows. The appellant said that the deceased had blackmailed him into meeting him in a wooded area by threatening him that if he did not do so he would tell the appellant's partner about the sexual encounter in early 2010. The appellant, accordingly, agreed to meet the deceased. He said that he feared that the deceased was going to blackmail him to have further sexual relations and that this would involve anal intercourse. On the afternoon in question, the appellant received a text from the deceased in the following terms, "Monday, last ever sexy time in school. I wanna fuck you senseless in a cubicle xxxx". The appellant did not want to have any further sexual relations with the deceased and, in particular, did not want to have anal intercourse with anyone other than his partner.

[8] Against that background the appellant agreed to meet the deceased. Before leaving home, the appellant armed himself with a kitchen knife which had a blade 9.5cm long. He had taken this weapon with him because, he said, he had wanted to scare the deceased and to protect himself. He wanted to make it clear to the deceased that his threats and his behaviour had to stop.

[9] The deceased and the appellant met at an agreed rendez-vous and then proceeded to the wooded area. As they walked there the deceased had touched the appellant's buttocks. When they arrived at the wood the deceased had taken out his erect penis. The appellant had told him to put it away, which the deceased did. The appellant then struck the deceased with the knife.

[10] In evidence the appellant said he had no recollection of striking blows upon the deceased. He thought he remembered falling with the deceased, or seeing the deceased fall. The next thing he remembered was seeing the deceased lying bleeding on the ground while the appellant himself was still holding the knife.

[11] A consultant psychiatrist and a consultant forensic psychiatrist gave evidence, on the appellant's behalf, that he was suffering from a personality disorder, or borderline personality disorder. The court also heard evidence from three consultant psychiatrists, led on behalf of the Crown, all of whom opined that while the appellant had certain personality traits, he did not have a personality disorder and was not suffering from any mental abnormality at the material time. The jury clearly preferred the evidence of the Crown psychiatrists.

[12] Before the sentencing judge, counsel for the appellant asked that the appellant's young age and his previous good character should be taken into account in the punishment that was to be imposed upon him. The attack on the deceased could be explained, to some extent, by a number of personality traits which even the Crown evidence accepted the appellant had and the obsession the appellant had had with his partner. He had lost control on being faced with what he perceived was a potential threat to his relationship.

[13] In his report to this court the sentencing judge at page 5 said:

"In determining the punishment part I took account of the appellant's age at the time of the offence (17 years 10 months); his previous good character; and his acceptance of responsibility for the killing.

I accepted that there was a history of the deceased being flirtatious with the appellant and making explicit sexual suggestions to him. I accepted that by the time of the murder he found this behaviour to be unwelcome and upsetting. I accepted that he perceived the deceased to be a threat to his relationship with his partner. I did not accept his evidence that the deceased was blackmailing him. Nor did I accept the evidence that the deceased exposed himself to the appellant in the woods. When the deceased's body was examined by police his trouser flies were fully buttoned up.

I did not accept the appellant's evidence that he had no recollection of inflicting any blows on the deceased. There was evidence, which I accepted, of him having said to witnesses very shortly after the assault that he had slit the deceased's throat and had stabbed him in the back.

The deceased was younger, and lighter (57kg as opposed to 47kg) (sic) than the appellant. I did not accept that the appellant's evidence that one of the reasons he took the knife was to protect himself.

I considered it to be very significant that the appellant had deliberately armed himself with a knife for the meeting with the deceased; and that he used it to carry out a brutal, sustained and merciless attack which left the deceased dead and mutilated.

In the whole circumstances I concluded that a punishment part of eighteen years was appropriate."

[14] Before this court Mr Scott, in a full and careful submission contended that the punishment part fixed was excessive. In so doing he focused, to a very large extent, on the appellant's young age at the time of the incident. He accepted, as he was bound to do, that the sentencing judge's description of the attack as "brutal, sustained and merciless which left the deceased dead and mutilated" was entirely accurate. He also accepted that no one could overstate the devastating effect that the murder of the deceased must have had on his family and friends. Nonetheless some consideration had to given to the young age of the appellant, which, it was submitted, did not appear to have been adequately taken into account by the sentencing judge. Mr Scott referred us to a very substantial number of character references lodged in court which all spoke well of the appellant's behaviour, personality and conduct before the incident. We have also taken note of documentary material, before the court, which clearly establishes in some detail both the appellant's achievements and his ambitions. Included among the documents placed before us was a letter from Derek Robertson, Residential Officer, HM YOI, Polmont dated 20 August 2012 which Mr Scott asked us to have particular regard to. This sets out, in very positive terms, the manner in which the appellant has been conducting himself since admitted to Polmont YOI. Amongst other things, it states,

"Craig has spent his time positively while in custody, currently studying for Higher grade Mathematics and Chemistry. He is also hoping to study Sociology via distance learning course with Carnegie College.

Craig is involved with the Youth Enterprise Scotland under the guidance of Officer K. McLaughlin and is currently awaiting a place on the Duke of Edinburgh Award Scheme.

Craig was recently co-opted onto the Equality and Diversity Committee and is currently the only young offender on it."

The letter concludes:

"In conclusion, Craig is a mature individual who has made a conscious effort to improve not only his education and address his offending behaviour, but also fully integrate with all young offenders within the residential area."

Other material before us clearly demonstrated that the appellant is a highly intelligent young man who but for his commission of the murder of the deceased had a promising future before him, having obtained a conditional offer to study at Strathclyde University. He clearly belonged to a good and supportive family group who have continued to support him. On the face of things this was a young man who, unlike so many who appear before this court, had a very great deal going for him. The nature of his attack on the deceased is all the more inexplicable but also all the less excusable.

[15] Against all of that it is difficult to see how the submission, largely relied upon by Mr Scott, fits this particular appellant, namely that the punishment part should be fixed on the basis that there may be hope of rehabilitation and reform over the passage of time, standing the appellant's age. In this case the appellant gave every sign of being a mature, intelligent young man with a good background and not being, as is so often the case in respect of those appearing before this court, the subject of any addictions. The letter from Polmont YOI indicates that that remains the picture.

[16] In that situation we have been unable to see any good basis for any criticism of the way in which the sentencing judge approached matters. Mr Scott referred us to a number of cases in which punishment parts were fixed for young persons. He accepted also that the authorities make it clear that young men who arm themselves with knives and come to use them must expect to be dealt with severely by the courts. Having considered the authorities referred to we are not persuaded that they justify the sentencing judge's approach in this case being described as inappropriate or excessive. The cases referred to were HM Advocate v Boyle &c [2009] HCJAC 89; Dale Hibbard v HM Advocate [2010] HCJAC 111 and Luke Mitchell v HM Advocate [2011] HCJAC 10.

[17] In the first of these cases, Boyle, a court of five judges reviewed the range of punishment parts appropriate with regard to the particular offence of murder and set out certain guidelines. At para [16] of the Lord Justice General's judgment it is said:

"We agree that at the present time knife crime is a scourge in the Scottish community and that the court should be acting, and be seen to act, in a way which discourages the carrying of sharp weapons, the use of which may lead to needless deaths. Sentences which may cause individuals to think more carefully before arming themselves and which reflect public concern at such killings are appropriate. Other than in exceptional circumstances we would expect punishment parts on cases of that kind to be at least sixteen years, and they might be significantly longer depending on the circumstances."

As regards the punishment parts fixed in the particular case before the court in Boyle itself, the appellant was 18 years of age at the time of what was a particularly brutal and callous murder in which he committed with another but where he took the main part. He had one previous minor conviction for assault. The Lord Justice General at para [28] said:

"The first respondent (the appellant Boyle) has one minor conviction for assault, not significant in the context of the present offence. He was 18 years of age at the time of the murder and was accordingly an adult. We do not consider that his offending is mitigated by his age."

The original punishment part which had been fixed at fifteen years was increased by the court to twenty years.

[18] In the case of Hibbard the court, while recognising that the sentencing of children brought into play different considerations than would apply in the case of adult offenders said, at para [17]:

"Even with a child offender, the minimum period of custody for the crime of murder is likely to be significant in recognition of the need for retribution for the deliberate or wickedly reckless taking of another person's life ..."

It has to be remembered also that in this case the appellant was at the time of the offending only two months shy of being an adult.

[19] In Mitchell the position was that the appellant was found guilty of a brutal attack using a knife on his girlfriend. He was just under 15 years of age at the time of the murder. The trial judge fixed the punishment part at twenty years. The majority of the court upheld that decision.

[20] At paragraph [38] of her decision Lady Cosgrove, who was one of the majority judges, in referring to the Opinion of the Lord Justice Clerk, who was in the minority, said:

"I too understand and share your Lordship's concern about the imposition of a sentence requiring a young person to remain in custody without prospect of release for a very long period. Nevertheless, having regard to the guidance provided by the court in Boyle and the grave nature of this crime, I find I am unable to conclude that the punishment part chosen was outwith the reasonable range available to a sentencing judge."

[21] In the present case, as we have noted, the appellant was not a young child at the time of the murder. He was a mature young person approaching the age of 18. We consider that while the authorities just referred to indicate, of course that the young age of an offender is a relevant factor, the sentencing judge acknowledged that and he took it into account, in fixing the punishment part of eighteen years. The decision of the sentencing judge, in our opinion, cannot be criticised.

[22] For the foregoing reasons we refuse the appeal against sentence.