APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Wheatley	[2012] HCJAC 103 Appeal Nos: XC223/12; XC235/12 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEALS AGAINST SENTENCE by WILLIAMINA ROBERTSON STEWART and PAUL NOBLE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant Stewart: JMW Thomson QC; Paterson Bell (for Aberdein Considine, Aberdeen)

Appellant Noble: Targowski QC; George Mathers & Co., Aberdeen

Respondent : K Harper AD; the Crown Agent

1 August 2012

General

[1] On 1 March 2012, after the closure of the Crown case several weeks into a trial diet in Aberdeen High Court, the two appellants pled guilty to the culpable homicide of Gordon Morrice by assaulting him at the Aulton Playing Fields, Aberdeen on 24 June 2010. The case is unusual in one particular respect. Ms Stewart, who had been charged along with her partner and her brother, had no direct connection with Mr Noble, although they were known to one another. Their participation in the death of the deceased, which occurred on 14 March 2011 (i.e. many months after the assaults), was quite separate. Their personal circumstances and previous involvement with the deceased were also very different.

[2] Ms Stewart's plea was to repeatedly punching the deceased on the head and body and to repeatedly kicking his head and body. She was sentenced to 10 years imprisonment. Mr Noble's plea also involved repeatedly punching the deceased on the head and body, but it included not only repeated kicking but stamping on the head and body. He was sentenced to 8 years imprisonment. Ms Stewart's partner pled guilty to punching the deceased on the head and her brother pled guilty to striking him on the body with a bicycle and kicking him on the leg. They were both admonished.

Circumstances of the Death

[3] The facts, as narrated by the trial judge, were that the deceased was aged 57. He was divorced. He had several children; all but one of whom are adults. He was a welder to trade. However, at the time of his death he had been unemployed and lived in a high rise block in the Seaton area of the city. He had been indulging in excessive drinking at times.

[4] Ms Stewart was aged 37 at the time of the offence. She had no previous convictions. She had worked in the laundry at Aberdeen Royal Infirmary since leaving school at the age of 16. Her partner was an oil executive. They lived together at an address in Blackburn with their three children aged 12, 10 and 7. She was the daughter of Lilian and Alexander Stewart, who lived in a ground floor flat in Seaton Drive. She and the children spent a lot of time at her parents' house and the children went to school nearby. The appellant's younger brother lived in Seaton Road and worked as a barman at the local Rowantree Bar.

[5] On 23 June 2010, Ms Stewart's youngest daughter and two young girls, namely the daughters of her friend L McK, had been using a trampoline, which was located in the front garden of Mr and Mrs Stewart's flat. The deceased had come along and asked if he could join in the trampolining. Ms McK took umbrage at his behaviour. She thought, no doubt correctly, that he had been drinking. Having spoken to the deceased, she telephoned the police. The deceased was taken away by the police but, presumably because he had not committed any offence, he was not charged. About half an hour later, he returned to the area of the trampoline ostensibly to visit the nearby bookies. Ms Stewart approached him and asked him to go away. She was met with a very offensive verbal response. Meantime, Ms McK had taken a photograph of him, for which he had willingly posed, using her mobile telephone. The police were called again but advised that they could not prevent the deceased from being in the vicinity of the bookies.

[6] The photograph was uploaded onto a printer and an unknown number of copies were printed off. One of these was sent to the local primary school; the suggestion being that the deceased was a paedophile. This accusation had no basis in fact.

[7] Later that night, the trampoline was set on fire using some form of accelerant. The police were summoned. Although there was no identification of him as the perpetrator at the time, evidence ingathered shortly thereafter demonstrated that it was the deceased who had set fire to the trampoline. He had also been seen by a neighbour attempting to gain access to the block in which the Stewart flat was situated. Ms Stewart advised the police attending the fire incident of what had happened during the day and showed the police a photograph of the deceased which she had on her mobile telephone. Her brother was also present and he advised the police that, if they failed to arrest the deceased, then he would "make him pay". Both Ms Stewart and her brother accused the deceased of being a paedophile. The police officer told them that this was a serious accusation and one which could result in persons being injured.

[8] On the following day, at about 6.30pm, the deceased was walking across the Aulton Playing fields when a black Subaru, driven by Ms Stewart's partner, with Ms Stewart as a passenger, drove up at speed. Her brother appeared shortly afterwards on a bicycle. The three then began to fight with the deceased. The only narrative of the extent of Ms Stewart's violence towards the deceased in the judge's report is that she kicked him repeatedly on the side of the body as he was sitting or lying on the grass. The judge records that, according to a friend of Mr Noble who witnessed the scene, she told him in no uncertain terms to leave the area. Her brother had struck the deceased with the bicycle and kicked him on the leg. They then left. It is clear, however, that there must have been more violence than this, standing the pleas tendered and, in the remarks made by the judge to Ms Stewart at the time of sentencing, he said that she had kicked the deceased on the head. Her partner, of course, had pled to punching him on the head.

[9] The deceased was injured, presumably dazed, and bleeding. However, he did not appear to be seriously hurt. He continued on his way across the playing fields, when he was set upon by Mr Noble. Mr Noble was aged 15 at the time. He was a pupil at St Machar's Academy, where he appeared to be progressing reasonably well despite the occasional exclusion for disruptive behaviour. He had planned to go on to further education. He was a good footballer and that is why he happened to be at the playing fields at the material time.

[10] According to his interview with the police on 27 June 2010, which may not be particularly reliable at least in relation to the incident itself, Mr Noble had been told some version of the trampoline episode and had been under the impression that the local children were referring to the deceased as a pervert. He had been shown the photograph of the deceased by Ms Stewart, who had said that she was looking for the deceased because of the fire raising.

[11] The reasons for Mr Noble becoming involved in assaulting the deceased, after the others had left, may never be entirely clear. His account, which is only barely reconcilable with his plea, was that he had acted after the deceased had accused him of being involved in the earlier attack and had tried to assault him (Mr Noble). Be that as it may, the trial judge reports that Mr Noble repeatedly punched, kicked and, most significantly, stamped on the deceased's head and body. He was described by one witness as jumping up and down on the deceased with his full weight. After the incident, Mr Noble had "swaggered" away.

[12] The deceased had got up, "staggered" away and succeeded in flagging down an approaching police car. He was barely coherent, but gave an account of being set upon by a group of youths, and one older male, who were accusing him of being a paedophile. An ambulance was called. The deceased was fully conscious on arrival at hospital. However, his Glasgow coma scale rating rapidly deteriorated to the minimum level. He had suffered a "contre coup" injury within his skull as well as multiple injuries to his head, chest and jaw. He was an in patient at Aberdeen Royal Infirmary from June to September, when he was transferred for rehabilitation to a nursing home. He was still unconscious, but had started to improve slightly, when he died on 14 March 2011.

The Trial Judge's Approach and contentions on appeal

[13] The trial judge reported that a lengthy plea in mitigation had been made on behalf of Ms Stewart. This was to focus on Ms Stewart's fear of the deceased; not so much because of any alleged paedophilia (as had been widely reported in the local press), but because of his fire raising activities. She had taped up the letterbox of her parent's house accordingly. The plea was also, to a degree, critical of the police in not having arrested the deceased in advance of the incident. Otherwise, having regard to her personal circumstances, including those of her children, the plea had attempted to persuade the court to impose a non-custodial sentence.

[14] Mr Noble's principal line in mitigation, apart from focusing on his youth and personal circumstances, was to maintain that he had been caught up in the hysteria of the moment, caused by the actions of adult offenders. Mr Noble sought a lesser sentence than that of Mr Stewart upon that general basis.

[15] The trial judge, in sentencing Ms Stewart, told her that it had been she who had set in motion the chain of events which led to the deceased's death and that she bore a heavy responsibility for the attack upon him. The trial judge noted the trampoline and fire raising aspects of the case, but formed the view that the reason for her subsequent pursuit of the deceased had been because of her mistaken impression that the deceased was a paedophile. He rejected the idea that coming across the deceased on the playing fields had been a coincidence. Rather, he said:

"It is plain from your actings that you had effectively instituted a search for [the deceased] the previous day and that you were determined to get him".

He rejected also the portrayal of Ms Stewart's actions in the plea in mitigation and concluded that:

"This shameful episode of violence was nothing other than vigilante justice, or, in other words, injustice, in action. [The deceased] was not afforded due process of law and a fair trial, as you were. You accused, tried and sentenced him as a paedophile without his having been allowed to say anything in his own defence".

He described Mr Stewart's actions as "wholly unwarranted" and something for which she "must now pay the price".

[16] In relation to Mr Noble, the trial judge remarked upon the inconsistencies between the accepted version of events and what Mr Noble had told the police and social workers. He seemed to accept the basic proposition that Mr Noble's actions had been impulsive.

[17] The grounds of appeal for Ms Stewart and the written submission recognised, as they were bound to do, the inevitability of a custodial sentence. They contended that the period selected was excessive. Her plea had not been on an art and part basis but related to her own actions, which were described as amounting to a "relatively modest violent act" albeit one with catastrophic consequences for the deceased. Emphasis was placed on the greater degree of violence inflicted by Mr Noble and upon the conduct of the deceased which had led to the incident. Stress was also placed upon the absence of the use of a weapon and upon Ms Stewart's personal circumstances. The oral submissions followed this scheme also and attempted to play down the vigilante aspect of the incident in so far as these might have been prompted by fears of paedophilia. They too attempted to put some blame on the police for not arresting the deceased and, after the incident, for focusing, as the press had done too, on the vigilante nature of events.

[18] The grounds of appeal for Mr Noble and both his written and oral submissions focused upon his personal circumstances, especially his relative youth at the time of the offence. References from, amongst others, his school were made available, which detailed the progress which he had made, but mentioned also his disciplinary record and impulsiveness. He had improved with maturity. He had had this offence hanging over him for two years now. As in Ms Stewart's case, the contention was not that a custodial sentence was inappropriate, but that the period selected was excessive.

Decision

[19] This court recognises immediately the advantage which the trial judge had in listening to the evidence concerning the incident and being able to reach an informed view on the seriousness of the offence. In that regard, the court has no difficulty in accepting his assessment that the discovery of the deceased at the playing fields was not a coincidence but the result of a positive search. It accepts also that the false accusation of the deceased as a paedophile played a part in the decision, which must have been made, to find and attack the deceased. The court bears firmly in mind that what occurred resulted in the quite unnecessary death of a person who, despite his apparent problems, was no doubt loved by his family. The court has read the victim impact statements from his mother and his daughter concerning that aspect of this tragic incident. Nevertheless, the court has, without difficulty, reached the clear conclusion that the sentences imposed on both appellants were excessive.

[20] It is important to discourage any form of vigilante violence and such behaviour will be regarded as an aggravating feature of any offence, especially where there has been no misconduct on the part of the victim. However, in this case, although the initial incident involving the deceased requesting to join the children on the trampoline may, as the trial judge characterised it, just have involved a "stupid remark", what he did thereafter cannot be dismissed so lightly. It is not disputed that the deceased was responsible for setting the trampoline alight, using an accelerant, and that he had tried to gain access to the block of flats, where Ms Stewart's parents (and often her children) lived. This was a significant feature in the background to the offence and the court considers that insufficient weight has been placed upon it, and thus the deceased's own actions, in assessing the appropriate penalty to be imposed on Ms Stewart.

[21] In addition, quite apart from Ms Stewart's personal circumstances, which reflect a hardworking mother, it was important to weigh in the balance the level of violence used by her. It must be said at once that anyone convicted of kicking someone to the head is likely to be dealt with severely by the courts, but the absence of any weapons and the fact that the violence, at the level delivered by Ms Stewart, could not have been anticipated to have the dire consequences which it did have, are significant elements in mitigation.

[22] One obvious difficulty, which the trial judge had, was how to gauge the impact of the relative severities of the violence used by each appellant on the eventual sentence. This was, and is, not an easy exercise in circumstances where it must be accepted, in terms of the pleas of guilty to culpable homicide, that the actions of both appellants contributed materially to the death of the deceased. However, from the narrative given by the trial judge, and indeed the content of the pleas, the level of violence used by Ms Stewart must have been significantly less than that used by Mr Noble; the latter's actions involving repeated stamping to the head.

[23] In all these circumstances, the court will quash the sentence of ten years imprisonment upon Ms Stewart and substitute one of five years. This, it should be remarked, also takes specific account of the impact of any sentence of imprisonment on Mr Stewart's children.

[24] Turning to the appeal of Mr Noble, the court has already commented that it considers that the violence employed by him was significantly greater than that used by Ms Stewart. On the other hand, he was only fifteen years of age at the time of the offence and the court considers that insufficient weight has been put on this factor and to the objective material dealing with his general developing maturity and relative educational progress. In all the circumstances, the court will quash the sentence of eight years detention and substitute one of six years.