Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Mackay of Drumadoon Lady Cosgrove	[2012] HCJAC 54 Appeal No: XC605/11 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeal by HER MAJESTY'S ADVOCATE Appellant; against LEE McNAMARA, Respondent: _______

Alt: A Miller AD; Crown Agent

Act: ME Scott QC; Alex Lafferty & Co

4 May 2012

1. General

[1] On 22 July 2011, after a trial lasting five days at the High Court in Edinburgh, the respondent, who is aged 25, was found guilty of a charge which libelled that:

"(1) on 20 October 2010 at the car park of the Dolphin Inn,...East Lothian, you...did assault Steven Curran...and did seize hold of him, punch or strike him, cause him to fall to the ground, sit on top of him, punch him on the head and body, rob him of a set of car keys...kick him on the head, rob him of said motor car...reverse over him with said motor car, thus drag him underneath said car and along the ground,...drive over him with said car and you did murder him and you did previously evince malice and ill will towards him".

The Crown had, on the third day of the trial, accepted a plea of guilty to charge (2), which was a contravention of section 2 of the Road Traffic Act 1988, occurring after the murder, by driving the car, whilst under the influence of drink and dangerously, at an excessive speed and colliding with the central reservation of the A1 near Dunbar. This reflected a plea which the respondent had previously tendered, shortly after service of the indictment, along with pleas to charges of driving without a licence and insurance, contrary respectively to sections 87(1) and 143(1) of the 1988 Act.

[2] On 23 August 2011 the respondent was sentenced to life imprisonment on the murder charge, with a punishment part of 131/2 years. This sentence would, according to the trial judge, have been one of 15 years had the respondent not previously tendered a plea to culpable homicide. He was sentenced to a concurrent twelve months on charge (2) (reduced from 16 months) and admonished on the others.

2. The Circumstances of the Offence

[3] On 20 October 2010 the respondent had been drinking in the Dolphin Inn, Whitecraig, near Musselburgh, where the deceased, aged 47, was the proprietor. There was some kind of altercation between the two. Upon leaving the Inn some time after 11 pm closing time, the respondent had told his friends that he was going to wait for the deceased and "bang" him. At about 11.50 pm the deceased had left the Inn and headed towards his car. He was thereupon attacked by the respondent, who punched him. The deceased fell to the ground. The respondent sat on top of him and punched him on the head and body before seizing his car keys. All of this was caught by Closed Circuit Television cameras. The court viewed the recording of the events, albeit that the respondent had objected to that course of action. The recording had been played at the trial. The court took the view that the appellant was entitled to support his submissions with such evidence as he deemed appropriate, subject to any comment which the respondent might make in reply.

[4] The recorded images showed that, after the respondent had taken the keys, he had left the deceased lying motionless on the ground at the back of the car. As the respondent headed towards the driver's door, he turned back to kick the deceased on the head or upper body. He then got into the car and, after a little time apparently adjusting the controls, the respondent reversed the car over the deceased. The deceased was dragged under the car for some distance. The car then stopped before being driven forwards over the deceased and away from the scene. The deceased suffered very serious injuries from which he died.

[5] The deceased's body was not discovered until some hours later. In the meantime, the respondent had driven away down the A1 and eventually crashed the car into the central reservation some time before 00.15 am. The police arrived at the scene but had been unable to find the driver. They called at the deceased's house at about 00.45 am and advised the deceased's wife of the crash. They then called at the Inn at about 1.50 am and found the body. The deceased was found to be carrying between £100 and £200 in cash. At about the same time, the respondent had arrived at cottages near Broxburn, Dunbar, where he had stated to the occupants that he had crashed his car and asked them to telephone the police. The occupants were visitors and did not have a telephone. The respondent left. At about 4.20 am he identified himself to police stationed at a roundabout on the A1 as the driver of the crashed car. He was taken to the Royal Infirmary, Edinburgh. At about 6.05 the CID arrived at the Infirmary. This appeared to give the respondent cause for concern. He admitted attacking the deceased and taking his car. When told that the deceased was dead, he burst into tears and said "no", "this will destroy my family". On 2 November 2010, at a judicial examination in Haddington Sheriff Court, the respondent was asked if he admitted the charge of murder. He replied: "I didnae mean to kill him. It was an accident".

3. Mitigation
(a) PERSONAL CIRCUMSTANCES
[6] The Social Enquiry Report disclosed that the respondent had lived with his mother and young brother in Whitecraig. His mother had separated from his father, when the appellant had been aged 12, after several break-ups prompted by domestic violence. The respondent had suffered from Attention Deficit Hyperactivity Disorder as a young child and had spent some time in a residential school. His father had committed suicide, when the respondent had been aged 17. His mother had suffered a nervous breakdown at about the same time. The respondent had worked with his uncle as an apprentice motor mechanic, but this had ended after the respondent had been involved in a road traffic accident. His uncle had nevertheless assisted him to obtain work as a plasterer. The respondent had still been employed in that capacity at the time of the murder. The respondent admitted to excessive drinking on a regular basis, including at the time of the offence.

[7] The respondent had one conviction for assault to injury in 2006, for which he was fined. He also had three convictions for malicious mischief, one for a breach of the peace and another in 2007 for a contravention of the Firearms Act 1968 for which he had been put on probation. He was assessed as at moderate risk of re-offending.

[8] It was said that the respondent had shown remorse for what had happened, especially in relation to the deceased's wife, daughter and two sisters. Set against that, the Victim Statement Forms from the deceased's wife, daughter and sister show a family which has, not surprisingly, been deeply traumatised by the murder.

(b) THE GUILTY PLEAS
[9] The history of the offers to plead to the main charge is not straightforward. The respondent had undoubtedly accepted that he had been the driver of the car from an early stage; indeed, when he first gave himself up to the police. Although the trial judge records that the respondent "never disputed his guilt in respect of assault and robbery or his guilt in respect of culpable homicide" it is important to understand just exactly what that meant. The respondent accepted that his actions in reversing over the deceased amounted to culpable homicide, but that was not on the basis of any deliberate act constituting an assault. Rather it was on the basis of the death being caused as a result of some kind of culpable and reckless conduct. The offer to plead to assault and robbery was in the context of these actions constituting a crime separate in time from the (slightly) later use of the car. In that state of affairs, the respondent's formal offer to plead at the first diet on 17 February 2011 was to a charge which did not contain any reference to an assault at all. It was simply to a libel that he did:

"reverse over Steven Curran...with [the] motor car...thus drag him underneath said car and along the ground, drive forwards over him with said car whereby he was so severely injured that he died and you did kill him".

A similar plea was tendered in the presence of the jury at the trial diet. Although not formally recorded, the respondent had offered in writing to plead to a separate charge of assault and robbery, were one to have been proffered.

[10] During the trial, the respondent had maintained a defence, to which he spoke in evidence, that he was not guilty of murder as he had thought that the deceased had got up and gone back into the Inn before he had reversed the car. The respondent's trial counsel had maintained before the jury that any verdict ought to be in terms of the plea tendered notwithstanding that she did not dispute the assault and robbery elements of the charge.

4. The Trial Judge's Approach and Submissions

[11] In selecting an appropriate sentence, the trial judge reports that she considered that a discount should be afforded to the respondent on the basis that he had accepted the "main factual basis of the Crown case". She proceeded on the basis of the dictum of Lord Marnoch, delivering the Opinion of the Court, in Balgowan v HM Advocate 2011 SCCR 143 (at paras [6]-[7]) that, where an accused has tendered a partial plea of guilty which restricts the ambit of the contentious issues at trial, then:

"...despite a remark to the contrary made obiter in Spence [v HM Advocate 2007 SCCR 592] even if the restricted plea is not in the end vindicated by the verdict of the jury, it will still...be open to the accused to argue for an appropriate discount to reflect the utilitarian value of his plea as just described".

The argument was that a great deal of court time had been saved as a result of the respondent's acceptance of many of the essential facts of the case. A lengthy joint minute had been entered into.

[12] In recording the respondent's previous convictions, the trial judge states:

"Counsel submitted that [the respondent] had only one conviction for assault. That conviction involved an air weapon which he used to shoot at a street sign".

[13] The Advocate Depute submitted that the sentence was unduly lenient in two respects. First, the starting point of fifteen years for the punishment part was too low. This had been an unprovoked act perpetrated on the licensee of the Inn. It had involved the respondent lying in wait for the deceased. In HM Advocate v Boyle 2010 SCCR 103, the Lord Justice General (Hamilton), delivering the Opinion of the Full Bench, had given guidance that in knife crime, other than in exceptional circumstances, the punishment part should be at least sixteen years. In Cameron v HM Advocate 2011 HCJAC 29, the Lord Justice-Clerk (Gill), delivering the Opinion of the Court, had reduced a punishment part to 14 years in circumstances where the cause of death of the deceased had been unascertainable and where there had been "no unusually aggravating circumstances" (para 44).

[14] Secondly, it was contended that the discount of 10% was too high. A discount under section 196 of the Criminal Procedure (Scotland) Act 1995 was appropriate where there was very clear utilitarian value arising from the formal tendering of a plea which had disposed of proceedings or where a plea had been tendered which would have achieved that result and had ultimately been reflected in the verdict returned by the court (HM Advocate v Simpson 2009 SCCR 554, Lord Wheatley at para [15]; Spence v HM Advocate (supra), Lord Justice General (Hamilton) at para [9]). The remarks in Balgowan v HM Advocate (supra) were obiter, since no discount had been given in that case because of the absence of any utilitarian value. A court might take into account time saved as a result of an acceptance by an accused of some responsibility, but that was different from the formal discount available under section 196.

[15] The respondent contended that, although the starting point might be viewed as low, it was not outwith what was described as a range of discretion. It was not unreasonable or "perverse". The case bore no relation to Boyle v HM Advocate (supra) which was decided for policy reasons relative to the use of knives; nor was it akin to Cameron v HM Advocate (supra), where the circumstances had been extraordinary because the Crown had been unable to demonstrate the precise cause of death. The range of punishment parts was from 12 to 35 years. There was nothing to demonstrate that the trial judge's selection was outwith the norm. There had been evidence of actual remorse and the offence had not been a premeditated killing in the sense of one involving an intention to kill. The trial judge had had the advantage of hearing the evidence. The previous convictions did not amount to an aggravating factor and gave no cause for future concern.

[16] In relation to the discount, no error had been identified in the trial judge's reasoning. The approach of the trial judge had been consistent with Balgowan v HM Advocate (supra) and Gemmell v HM Advocate [2011] HCJAC 129, (Lord Justice-Clerk (Gill) at paras [37] - [50] and [59]). The plea had had an utilitarian value and there had been much agreement of evidence contained, unusually, in a joint minute prepared by the defence. Many witnesses had not needed to be called, including the deceased's wife and police and ambulance teams. There had only been two issues left for trial: the precise interpretation of the CCTV recording to determine whether the respondent had driven over the deceased once or twice; and whether the respondent had had the mens rea for murder. The only issue regarding the discount was the amount and Gemmell v HM Advocate (supra) had reinforced the principle that this was essentially a discretionary matter.

5. Decision

[17] It is important, when considering a formal discount for an early plea under section 196 of the 1995 Act, to bear firmly in mind the circumstances in which such a discount is available. The section is applicable when the court is determining:

"what sentence to pass on... an offender who has pled guilty to an offence".

When that happens, the court may take into account:

"the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty".

It therefore applies in a situation where there has been a plea of guilty, whether accepted or not, and the court is sentencing for that offence (i.e. the one for which a plea had been tendered). It is not applicable in respect of sentences for offences to which the appellant has not pled guilty. It is, for that simple reason, not applicable to the situation which arose in this case, where the respondent tendered a plea to culpable homicide and was convicted of murder. No formal discount in terms of section 196, as such a discount is to be recorded in terms of section 196(1A), ought to have been afforded in this case. The court must disagree with the obiter dictum in Balgowan v HM Advocate (supra) in so far as it may be thought to suggest otherwise.

[18] In any event, as is set out in Gemmell v HM Advocate (supra, LJ-C (Gill) at para [37]), the only relevant consideration when assessing the level of discount is the utilitarian benefit of the early plea. The plea in this case had no utilitarian benefit at all. The plea did not result in the trial being shortened nor did it avoid witnesses testifying. It is clear that the respondent entered into an agreement with the Crown in relation to the evidence to be led. Many facts were agreed in the joint minute and that did result at least in many witnesses not having to give evidence. That clear utilitarian benefit is not, however, related to the plea. That benefit can be reflected, as can remorse and many other mitigatory features, in selecting the appropriate sentence for the offence. It does not, however, translate into a formal percentage discount. For these reasons, the court considers that the trial judge erred in law in applying a discount to the sentence selected.

[19] This was a murder in which the respondent had deliberately waited for the deceased to emerge from his business premises with a view to attacking him. In that sense, the attack was premeditated. One of the main aggravating features of the murder is that it was committed in the course of a robbery of the deceased of his keys and car. These are significant elements to be taken into account when determining the appropriate sentence and the court does not consider that due weight was given to them by the trial judge. Although the court agrees that Boyle v HM Advocate (supra) cannot be regarded as directly in point, as it deals with the particular scourge of knife crime, the respondent used the deceased's own car as a weapon to kill him. The act, as depicted in the CCTV recording, is a shocking one.

[20] It is also not without importance that the respondent does have a criminal record. This did not consist of an assault on a road sign involving an air weapon, as recorded by the trial judge, but an assault to a person's injury in 2006 and a separate contravention of section 19 of the Firearms Act 1968, which attracted a two year probation period in late 2007. The respondent also had three convictions for malicious mischief and one for a breach of the peace. This record ought properly to have played a more prominent part in the assessment of penalty.

[21] Set against these factors are the respondent's remorse after learning of the consequences of his actions and the other mitigatory elements taken into account by the trial judge. In all these circumstances, the court has reached the view that the selection of a starting point of fifteen years is unduly lenient in the sense that it does fall outside the range of sentences which a judge at first instance, applying his or her mind to all the relevant factors and giving due weight to the nature and gravity of the offence, could reasonably have considered appropriate (HM Advocate v Bell 1995 SLT 350).

[22] The court will quash the punishment part of 131/2 years selected by the trial judge and substitute therefor one of 16 years.