Scottish High Court of Justiciary Decisons

GEORGE BROADLEY v. HER MAJESTY'S ADVOCATE

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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Hamilton Lady Cosgrove	Appeal No: XC364/03 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL AGAINST SENTENCE by GEORGE BROADLEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: D. Thomson, Solicitor Advocate; Douglas Thomson

Respondent: Ms. J. Johnson, A.D.; Crown Agent

24 September 2003

[1] On 2 August 1990 the appellant was convicted in the High Court at Edinburgh of the murder of his wife. He was also convicted of assaulting his father-in-law to his injury. He was sentenced to life imprisonment on the murder charge and to 8 months concurrently on the assault. At the date of these offences the appellant was 39 years of age.

[2] The trial judge in his Note recorded that at the trial there was no dispute that the appellant had attacked his wife and had stabbed her repeatedly with a knife, inflicting five stab wounds to the head, neck and trunk. The pathologists had concluded that the pattern of injury suggested an attack pressed home with great determination. The assault on the appellant's father-in-law occurred in the course of the same incident and involved the infliction, with a knife, of a wound to his arm.

[3] The background to these events was matrimonial discord. The appellant and his wife were living apart. Their son, George, then aged 5 years, was living with the appellant in the former matrimonial home. His wife, it seems, was then living with her parents. She enjoyed access to the child but access arrangements were difficult, there being hostility in which the wife's parents were involved. The appellant testified at his trial that he had become so distressed and strained by these difficulties that by about two weeks or so prior to the fatal assault he had become preoccupied with thoughts of killing his wife. He consulted his general practitioner and was seen by a psychiatrist on more than one occasion. However, there was no evidence at the trial to base a plea of diminished responsibility and no contention to that effect was advanced.

[4] At a hearing on 19 August 2002 a different judge specified 14 years as the punishment part of the life sentence. In his report to this court that judge observed that the appellant had no criminal record and was under severe stress at the time. He continued:

"Although he had armed himself with a knife before going to meet his wife, his ability to form a rational judgement was impaired. I took the evidence in that regard into account. In light of the premeditation involved and the brutality of the attack ... "

he fixed the period at 14 years.

[5] The appellant has appealed against that sentence. Mr. Thomson, solicitor advocate, submitted that the period fixed was excessive. He accepted that the appellant had gone to the scene armed and had inflicted savage injuries. Against that, however, was to be set his emotional distress at the time and the fact that he had voluntarily sought medical assistance for his homicidal thoughts. Psychiatric reports obtained by the Crown prior to the trial had recorded that, while there was no mental disorder or depression, the appellant had been distressed and angry and was finding difficulty in coping. In the whole circumstances a lesser punishment part should be fixed. Reference was made to Walker v. H.M. Advocate 2002 SCCR 1036, per the Lord Justice-General at paragraph [8]. The life sentence should also be backdated to 16 April 1990, the date when the appellant had first appeared on petition (Elliott v. H.M. Advocate 1997 S.C.C.R. 111).

[6] The appeal is allowed in so far as concerns backdating. However, we are not persuaded that the length of the punishment part specified should be varied. While another judge might have fixed a slightly shorter period, the number of years specified was, in our view, within the range of sentences available in the whole circumstances of this case. The stress to which the appellant was subject at the time was, among other factors, taken into account by the sentencing judge. Moreover, the appellant's conduct included, albeit within the same incident, an attack with a sharp weapon upon another victim to his injury.