APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Clarke Lady Smith	2011 HCJAC 87 Case No. XC 147/11 OPINION OF THE COURT delivered by LORD REED in APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against DARREN WILLIAMSON Respondent: _____________

Appellant: J Cherry QC, Advocate Depute; Crown Agent

Respondent: E Targowski QC et L Green; Trainer Alston, Coatbridge

23 August 2011

[1] The respondent was convicted of murder after trial at the High Court in Edinburgh on 1 February 2011. He was sentenced to life imprisonment with a punishment part of 14 years. The Crown has appealed against that sentence on the ground that it is unduly lenient.

[2] The charge of which the respondent was convicted was in the following terms:

"On 27 and 28 March 2010 at 36 Lewis Place, Perth you DARREN GEORGE WILLIAMSON did assault James Williamson then residing there and strike him on the head with a hammer, seize and drag him by the neck, place him on a couch, cover him with blankets or similar items, wilfully set fire to said couch, which fire took effect on the said couch and upon the clothing and body of said James Williamson, all to his severe injury and thereafter you did disable smoke detectors by striking same with a hammer, whereby he succumbed to his injuries and the effects of the fire and you did murder him".

[3] The circumstances of the offence, as narrated by the sentencing judge in his report to this court, were as follows. At the time of the offence the respondent was 26 years of age. The deceased was his paternal uncle. He was a chronic alcoholic aged 50 who lived alone. He was unsteady on his feet and walked with a stick. He was described by some witnesses as being frail. On the evening of 27 March 2010 the respondent had been drinking with one of his cousins. Towards the end of the evening he decided to visit the deceased's flat. When he arrived there the deceased was alone at home. The respondent was admitted to the flat, where he was given alcohol by the deceased. Some time later the respondent attacked the deceased by striking him on the head repeatedly with a hammer which he obtained from the deceased's kitchen. The attack took place in the bedroom of the house. The blows to the deceased's head rendered him unconscious. The respondent then dragged him by the neck to the living room and placed him on the couch. He set fire to the couch. He disabled two smoke alarms using the hammer. He then left the house. The blows to the deceased's head resulted in lacerations, nasal fractures and a minor fracture of the skull. There was some difference of view among the pathologists who gave evidence as to whether the degree of force which would have been required to inflict the head injuries was moderate or severe. The cause of death was blunt force head injuries and the effects of fire. The burns were the most significant injuries. The deceased sustained burns to 47 per cent of his body surface. The evidence was that the head injuries were survivable and that the deceased was alive at the time the fire was set but was likely to have been unconscious. After leaving the flat the respondent disposed of the hammer. He attempted to burn his clothes. He told his fiancée that he had killed the deceased. The following morning he made a voluntary statement to the police admitting setting the fire and killing the deceased.

[4] One further aspect of the evidence requires to be noted. At the post mortem examination swabs were taken from the deceased of semen which matched the DNA of the respondent. The charge against the respondent alleged that he had sodomised the deceased. In his evidence, however, the respondent maintained that after falling asleep in the deceased's flat he had woken to find the deceased on top of him. According to the respondent, his jeans and underwear had been pulled down and the deceased was pushing his bottom on to the respondent's groin area. The deceased was wearing boxer shorts. According to the respondent that incident prompted his attack upon the deceased, and he advanced a plea of provocation on that basis. The jury rejected that plea but also deleted from the charge the allegation that the respondent had sodomised the deceased.

[5] In his report, the sentencing judge states:

"I concluded that the verdict was inscrutable. It was consistent with more than one version of events. In those circumstances it was for me to reach my own conclusions on the evidence."

On the basis that he was left with a reasonable doubt that the incident might have begun as the respondent suggested, the sentencing judge sentenced the respondent on the basis that his account of what had happened initially was true and was the cause of his loss of control. He noted that other mitigating factors in the case were the previous good character of the respondent, the fact that he had not been armed when he went to the deceased's flat but had picked up the hammer in the heat of the moment, and his remorse. The sentencing judge stated:

"Had the murder not been instigated by the events described by the accused, the punishment part I would have imposed would have been one of 18 years. In light of those events the punishment part I imposed was 14 years."

The sentencing judge therefore reduced the punishment part from 18 years to 14 years solely because of the mitigating effect, as he saw it, of the initial assault by the deceased upon the respondent, a possibility which he could not exclude beyond reasonable doubt.

[6] Before this court, neither party to the appeal has sought to support the approach adopted by the sentencing judge. Both parties agree that the verdict of the jury was not inscrutable. In the light of the evidence and the manner in which the case had been presented to the jury, the parties were agreed that it could be inferred from the jury's verdict that they had accepted the respondent's account of how the incident had begun.

[7] Proceeding on that basis, however, we are unable to agree with the sentencing judge's view that the sexual assault described by the respondent had any substantial mitigatory effect. The jury had to determine whether the wickedness of the respondent's actings was diminished by their being a response to that assault. Applying the principles of the doctrine of provocation, they concluded that it was not, either because they considered that the respondent had not acted in the heat of the moment but deliberately, or because they considered that his retaliation was grossly disproportionate to the deceased's offence, or both. In the light of the jury's verdict rejecting the plea of provocation, it was not open to the sentencing judge to reduce the respondent's sentence on the basis that the wickedness of his crime was substantially mitigated by the conduct of the deceased, to which the respondent's reaction was, as the jury had found, either grossly disproportionate or calculated revenge.

[8] As the sentencing judge recognised, sentencing in cases of this kind should follow the guidance given by this court in the case of HMA v Boyle 2010 SCCR 103. The facts of the present case bear a close resemblance to those considered in that case in relation to the first and second respondents. As in the present case, the deceased there was subjected to a sustained assault following which a decision was taken to burn him in a fire. In that case he was placed on a pyre which was then set alight. The court observed that it was difficult to envisage more cruel or sadistic treatment of another human being. In that case the court imposed a punishment part of 20 years on the first respondent, who, like the present respondent, had been involved in the assault as well as the burning alive.

[9] We recognise that some distinctions can be drawn between that case and the present case. In particular, the present respondent has shown remorse. The murder in the case of Boyle also appeared to have a wholly gratuitous element. We also take account of the fact that the present respondent does not have a serious record of previous convictions, although neither did the respondents in the case of Boyle. In the light of the 20 year punishment part imposed on the first respondent in the case of Boyle, however, we are satisfied that the 14 year punishment part imposed in the present case fell outside the range of sentences which the sentencing judge, applying his mind to all the relevant factors, could reasonably have considered appropriate. The punishment must therefore be regarded as an unduly lenient sentence, applying the guidance given in HMA v Bell 1995 SCCR 244 at page 250. We shall therefore quash the punishment part.

[10] We have to impose a punishment part which reflects the sustained and brutal nature of the assault with the hammer, the frailty of the deceased, the callous actions of the respondent in setting the fire, either in the knowledge that the deceased was still alive or with wickedly reckless indifference to that possibility, the fact that the respondent abandoned the deceased to the fire, either in the knowledge that he was still alive, or wickedly reckless to that possibility, and the disabling of the smoke alarms before the respondent left the flat, from which it can only be inferred that he was determined that the fire should take hold undetected.

[11] As the court stated in the case of Boyle, such cold-blooded conduct can only strike horror into the minds of right minded members of the community. Taking account of all the factors we have mentioned, we shall substitute a punishment part of 17 years.

AS