APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Nimmo Smith	[2010] HCJAC 118 Appeal No XC135/10 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by THOMAS BENNIE SMITH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Brown QC; Russel & Aitken, Denny

Respondent: Mackay AD; Crown Agent

19 October 2010

[1] On 5 February 2010 at a continued Preliminary Hearing at the High Court in Glasgow the appellant, who was aged 26, pled guilty to the murder of Diane Fallon, aged 43, and her 10 year old daughter Holly at an address in Cronberry in March or April 2009. He was sentenced to life imprisonment. The punishment part was set at 32 years, restricted by three years for the early plea.

[2] The circumstances of the murders, so far as are known, can only be described as horrific. The appellant owned a ground floor flat at 4 Riverside Gardens, Cronberry, near Auchinleck, Ayrshire. Mrs Fallon and her daughter had moved into an upper flat in the same block in mid 2008. She became friends with the appellant. What Mrs Fallon did not know was that, at Teesside Crown Court on 4 May 2006, the appellant had been convicted of indecent assault and had served a six month sentence. He had accordingly been made subject to the notification requirements in the Sexual Offences Act 2003.

[3] On 28 March 2009 the appellant was celebrating his birthday. His girlfriend had bought him a pool table as a present. At about 3pm, he was in the company of an uncle, moving the pool table into his flat. From about 5pm there was a series of text messages between the appellant and Mrs Fallon. The content of the texts is not known, but Mrs Fallon had informed friends and neighbours that she had arranged to go that evening, with her daughter, to the appellant's flat to play pool. She was seen by a neighbour prior to that visit at about 8.30pm and she had also spoken to her sister on the telephone at around that time. Meanwhile, the appellant had gone to his girlfriend's house in Kilmarnock, where she had prepared a special birthday meal. However, sometime after 7pm, he had left ostensibly to visit his mother but, his girlfriend surmised, in order to return home and play pool. He certainly sent a text to Mrs Fallon on leaving Kilmarnock concerning his invitation to her to play pool.

[4] It is clear that Mrs Fallon and her daughter did visit the appellant in the evening. There was an entry made by Holly in her diary, timed at 8.15pm that she was at the appellant's house. She recorded that her mother was playing pool with the appellant. On the other hand, there were text and telephone exchanges between the appellant and Mrs Fallon timed at around 9pm. In any event, further telephone records reveal that Mrs Fallon had returned to her own flat, presumably with her daughter, some time before midnight. She had exchanged further texts with the appellant, as he also had done with his girlfriend, until about 1.00am. The Fallons were not seen or heard of alive after this time.

[5] A major search for the Fallons was prompted by the headmistress of Holly's school on Tuesday, 31 March. On 8 April, the appellant confessed to his father that he had "accidentally" murdered them. He had gone to the police station and repeated his admission. He gave an account of having played pool with Mrs Fallon. She had returned to her own flat but had come back down. He had been lying on a couch. She was rambling on about something. She picked up a knife, which he kept under a table. He spoke of being attacked by Mrs Fallon with the knife. He had been holding his computer games control. He had put its cable around her neck in an attempt to render her unconscious. Holly had then come into his flat and had tried to stop him attacking her mother. He had put the cable around her neck too. Both had been rendered unconscious and died.

[6] The appellant set about disposing of the bodies, the locations of which he later gave to the police. A neighbour spoke to hearing a car being driven away at speed from the area at about 2am. This was not usual. The appellant told the police that he had taken the bodies from his house and driven to a bridge over a river, about a mile from Cronberry. He had thrown Holly's body off the bridge, pulled her under it and covered her with stones. He had then driven on and hidden Mrs Fallon's body in undergrowth at the side of the road about four miles from the village. At no point did the appellant speak to any sexual activity. His account was thus at variance, in large measure, with the medical and scientific findings.

[7] Holly's body was found naked below the waist other than having a pair of pyjama bottoms tied around her ankle. She was wearing a pyjama top and an outdoor padded jacket. A condom was found at the side of the bridge with the appellant's semen in it. Post mortem examination revealed that Holly had been strangled. She had sustained blunt force trauma to the head, resulting in a full thickness laceration to the scalp. She had been subjected to a sexual attack and had been anally and vaginally raped by the appellant.

[8] Mrs Fallon's body was found with her hands tied behind her back with a USB cable. She too had been strangled to death. Before that, she had sustained blunt force trauma to the head and trunk and also to the anus and vagina. She had fractures to the skull, pelvis and ribs. Toxicology did not indicate any significant intoxication.

[9] Exactly what had occurred to Mrs Fallon and her daughter will remain a mystery, in the absence of a true account from the appellant. One curious piece of evidence was that, sometime after mid-day on Sunday 29 March, a fifteen year old male friend of Holly had called at her flat with a view to their going together to a local garden centre. On knocking on the door, he reported hearing someone say: "Shh Holly". He reported this to his parents, but nothing was thought of it at the time. It is not clear from the judge's report whether the suggestion is that the voice was that of an adult, male or female, or Holly herself. It is also not clear what significance this has, other than indicating, as the sentencing judge states, that Holly may still have been alive on the Sunday.

[10] In selecting the punishment part the sentencing judge took the view that he was dealing with an exceptional case. He concluded that each victim must have been subjected to sadistic torture. When sentencing the appellant, he said this:

"[E]ven in these courts, where we hear and see the worst of humanity and where acts of depravity and atrocity are regularly described, your conduct stands out as exceptional. In perpetrating these crimes you have set a bench mark for atrocity below which it is difficult to imagine any other human being sinking".

In response to the Note of Appeal, the sentencing judge said he had taken note of the dicta in HM Advocate v Boyle 2010 SCCR 103 (Lord Justice General (Hamilton), delivering the Opinion of the Court, at para [13]) that there may be cases, for example mass murders by terrorists, for which a punishment part of more than 30 years may be appropriate.

[11] It was submitted that the sentencing judge's starting point of 35 years was excessive. First, the sentencing judge had engaged in speculation that the events on the Sunday yielded the inference that Holly was still alive then. According to a police statement taken from the witness, the voice heard had been female. Secondly, the sentencing judge's reference to the case setting a "bench mark" was misplaced. If it was intended to mean that the crime was as bad as any crime could be, then this was an error. This was not a case of mass murder as described in Boyle. The sentencing judge had erred in distancing himself from the approach in Walker v HM Advocate 2002 SCCR 1036 and McMurray v HM Advocate 2004 SCCR 702, both of which had involved multiple (three) deaths, and which had been approved in Boyle.

[12] The Full Bench in Boyle made it clear (para [7]) that the statutory provisions prescribe no minimum or maximum periods for punishment parts. In an appropriate case, a person could be sentenced to a period which, in practical terms, would be a 'whole life' term (cf the position in England: Criminal Justice Act 2003 Schedule 21, para 4). The court in Boyle analysed the approach taken in Walker, although not expressly that in McMurray. It is worth remembering that, in Walker, the sentencing judge had selected a 30 year punishment part for a planned triple murder in the course of a robbery. The appellant, himself a former soldier, had killed three soldiers by using a machine gun. The sentencing judge had looked (p 1038) at certain previous cases before selecting 30 years as representing "the extreme end of the scale" for punishment parts. These had included the 25 years selected for Robert Mone for the callous murder of a police officer following upon his violent escape from Carstairs. Mone was said not to have delivered the fatal blow, but he had been involved in several related attempted murders and had previously been found insane in relation to the killing of a female school teacher and the rape of a schoolgirl some years earlier. The cases also included the punishment part of 25 years imposed on Howard Wilson, a former policeman, who had shot dead two serving policemen and seriously injured another one when challenged by them about his involvement in an earlier bank robbery.

[13] Walker's punishment part was reduced to 27 years on appeal. The Lord Justice General (Cullen), delivering the Opinion of the court, stated (para [8]):

"[A] number of cases might be of such gravity - for example where the victim was a child or a police officer acting in the execution 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".

Following this, the period of 30 years was seen as a ceiling, although the court did state that they could imagine worse cases (para [10]). This view was endorsed by the three first instance judges in HM Advocate v Al Megrahi, unreported, Glasgow High Court, 24 November 2003, where 27 years was selected for the murder of 270 persons by causing the detonation of an explosive device on an aircraft flying over Lockerbie en route from London to New York. The appeal and cross appeal on sentence were never determined before the return of the prisoner to Libya on compassionate grounds.

[14] McMurray involved the premeditated murder of three people with a shotgun. Despite that, the punishment part of 30 years fixed by the sentencing judge was reduced by a Full Bench, chaired by the Lord Justice-Clerk (Gill), to one of only 20 years. Since McMurray had gone to trial, this must have been regarded as a starting point.

[15] It is clear from Boyle that 30 years is not to be regarded as a maximum. The Lord Justice General (Hamilton), delivering the Opinion of the court, said:

"[13] In our view there may well be cases (for example, mass murders by terrorist action) for which a punishment part of more than 30 years may, subject to any mitigatory considerations, be appropriate. Insofar as Walker and Al Megrahi may suggest that 30 years is a virtual maximum punishment part, that suggestion is disapproved. On the other hand we endorse the exemplification given in the penultimate sentence of paragraph 8 of Walker of the types of murder which might attract a punishment part in the region of 20 years".

Leaving aside any mitigatory factors, therefore, Boyle establishes (para [16]) that for murders committed by the use of a knife, such as is common in gang violence, a sentence of at least 16 years, and possibly significantly longer, might be expected. In fact, the first two respondents in Boyle were given starting points of 20 and 18 years and the third, who had murdered a 64 year old woman collecting for Provident Insurance, was given a starting point of 22 years. Both cases had involved attempts at concealing the victims' bodies. Boyle also establishes (para [13]) that, for cases where the victim is a child or a police officer or where a firearm is used, a punishment part of around 20 years might be anticipated. It must be accepted that it is difficult to reconcile the view of the Full Bench in Boyle with that in McMurray, where 20 years (in fact, only 18) was regarded as appropriate for a triple murder with a shotgun. But McMurray was decided in an era when 30 years was generally regarded as a maximum.

[16] However, what can undoubtedly be said is that the present case is in a category well beyond those contemplated directly in Boyle and may properly be regarded as truly exceptional. First, it was a multiple murder. That in itself would take it into the category of Walker, Mone or Wilson and, indeed, McMurray. Secondly, although no firearm or knife was used, one of the victims was a child. Thirdly, it included not only both sexual and sadistic conduct towards a woman but also towards a child. Fourthly, there were efforts to conceal the bodies, albeit that the appellant did confess to the murders not very long afterwards. These aggravating factors, some of them extreme in nature, fully justified the sentencing judge's selection of his starting point of thirty five years. This appeal must therefore be refused.