APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Clarke	[2013] HCJAC 159 XC574/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   CROWN APPEAL AGAINST SENTENCE   by   HER MAJESTY'S ADVOCATE Appellant;   against   DARRIN ALEXANDER CALLANDER Respondent:   _____________

Appellant: Prentice QC AD; the Crown Agent

Respondent: Davidson QC, Dunn; Walker & Sharp, Dumfries

 

26 November 2013

General

[1] On 2 September 2013, at the first preliminary hearing at the High Court in Glasgow, the respondent pled guilty to a charge which libelled that:

"(2) on 25 April 2013 at 36 Gilbert Circle, Dumfries, you ... did assault Brian Geddes Scott, then residing there, seize him by the body and pull him to the floor, repeatedly punch and kick him on his head and body, stamp on his body, sit astride him and repeatedly strike him on the head and body and you did murder him".

 

The sentencing judge imposed the mandatory term of life imprisonment and set the punishment part at 9 years and 9 months, which had been discounted for the early plea from 13 years. The discount afforded was therefore about one-quarter.

 

Facts and circumstances
[2] The respondent was 40 years of age and homeless. He had become estranged from his family and was unemployed. He was in the habit of drinking with the deceased in public and in the deceased's flat, which was the locus of the offence. The flat was used by the deceased, who was a 54 year old alcoholic and drug abuser, in poor health, as a drinking den for himself and his friends. The deceased tended to associate on a daily basis with other alcoholics in and around the Whitesands area of Dumfries.

[3] At about 10.00pm on 25 April 2013, a number of people, including the deceased and the respondent, were in the deceased's flat. All of them were drinking alcohol. Eventually only three remained, including the deceased, the respondent and RB. At about 10.30pm there was an argument between the respondent and the deceased. The respondent suddenly launched what the sentencing judge describes as a vicious and prolonged attack upon the deceased, which involved him jumping from his seat, pulling the deceased to the floor, straddling him and repeatedly striking him on the face with the full force of his elbow. From the post mortem examination findings, it is apparent that the respondent also repeatedly kicked the deceased on the head and body and stamped on his body. The deceased had severe blunt force injuries to his head, chest and abdomen. In particular, he had a ruptured spleen, fractured ribs, injuries to his bowel and liver, fractures to his vertebrae, extensive bruising to his face and scalp, lacerations above his left eye and in and around his mouth, and a fracture of the right cheekbone. There was also an acute head injury.

[4] RB had asked the respondent to stop attacking the deceased and he had eventually done so. The respondent and Mr B had then left the flat and walked to Mr B's home, which was a short distance away. They had returned the following day to see if the deceased was alright, but he was dead. They again left the flat and went to the home of an acquaintance. The respondent arranged to be driven to the address of a friend in Auchinleck, where he showered and changed. In the afternoon, the respondent's former partner telephoned to tell him that there was a rumour going around that he had murdered someone. The respondent became hysterical. Thereafter, he went to the police station in Dumfries, intending to confess to the murder. He told certain civilians that he had killed, and indeed murdered, the deceased. Despite his intention, however, when he arrived at the police station, he did not confess to the murder. He was detained by the police on a separate matter.

[5] On 2 May 2013 at Dumfries Prison, where he had been remanded on the other matter, he was formally detained in respect of the murder. Despite a lengthy interview, the respondent declined to make any admission and repeatedly stated that he wished to save what he was going to say for any trial. Although, therefore, he had said to various people that he had committed the murder, he had made no formal admission to the police. In due course, having regard to the content of the Crown psychiatric reports, the defence instructed a psychologist with a view to investigating the prospect of a plea of diminished responsibility. That was excluded after consultation. Thereafter attempts were made to negotiate a narrative relative to a plea to murder. On 5 August 2013 it was intimated, in an e-mail to the Crown Office, that the respondent would plead guilty to murder if such a narrative could be agreed.

[6] The respondent has an extensive list of previous convictions, mainly offences of dishonesty, mostly dealt with by summary penalties. However, on 2 March 2001, he was sentenced to 21 months at the High Court for assault and robbery. On 20 February 2007, he was convicted of a breach of the peace involving the use of an imitation handgun, for which a community based disposal was deemed appropriate. The same resulted followed on 27 July 2010 after a conviction for a contravention of the Firearms Act 1968 (s 19) involving possession of an air rifle. On 21 June 2012, he was convicted of assault, for which he was imprisoned for 100 days. He has several other convictions for carrying offensive weapons and on 5 occasions he has been convicted of obstructing or resisting the police in terms of section 41(1)(a) of the Police (Scotland) Act 1967.

 

Submissions
[7] The appellant contends that the punishment part selected by the sentencing judge was unduly lenient. The basis for this submission relates, first, to what was said to be the brutal and sustained nature of the attack, as described by the sentencing judge, the respondent's actions post mortem and his substantial criminal record. The advocate depute referred to Cameron v HM Advocate [2011] HCJAC 29, where the Lord Justice Clerk (Gill) said that a punishment part of 14 years was appropriate for the murder of the appellant's girlfriend, in circumstances which could not be ascertained. In Jakovlev v HM Advocate 2012 JC 120, Lord Hardie indicated (at para [10]) that the assessment of an appropriate punishment part should normally start at 12 years. The second element of the submission was that the sentencing judge had not had proper regard to the guidance on sentencing discounts in HM Advocate v Boyle 2010 JC 66, to the effect that, in murder cases, the maximum discount should be about one-sixth reducing, in some cases, to nil. The sentencing judge has accepted that he did fail to have regard to the dictum of the Lord Justice General (Hamilton) (at para [21]). Rather he had applied the guidelines in Gemmell v HM Advocate 2012 JC 223, which was not, of course, a punishment part case.

[8] In response, the respondent accepted, as he was bound to do, that the sentencing judge had misdirected himself on the level of appropriate discount. On the other hand, in respect of the headline sentence selected, the submission was that this was not a case with any unusually aggravating circumstances. In terms of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (s 2), the sentencing judge had to have regard to the seriousness of the offence and to the previous convictions of the offender when selecting an appropriate period to satisfy the requirements for punishment and deterrence, excluding any element for public protection. In this connection, it was accepted, on the one hand, that the attack had been brutal and vicious and had lasted for between 3 and 5 minutes. On the other hand, there had been a degree of contrition on the part of the respondent; hence his admission of guilt to various persons in the hours and days after the death, even if not to the authorities. Other cases, such as Cameron (supra) and Boyle (supra), were of little assistance, given that each depended on its own facts and circumstances, but it was important to bear in mind the high test set in HM Advocate v Bell 1995 SCCR 244, whereby, for this court to interfere with the sentencing judge's sentencing decision, the sentence selected had to fall outside the range of sentences which a sentencing judge could reasonably have considered appropriate. The sentencing judge had taken into account all the appropriate circumstances of the case and could not be faulted in that regard.

 

Decision
[9] Having regard to all the circumstances, the punishment part imposed by the sentencing judge is unduly lenient in terms of the test set out in HM Advocate v Bell (supra), in that it does fall outside the range of sentences which a trial judge could reasonably have considered appropriate for an offence of this nature. It is also not disputed that the sentencing judge failed to apply the guidance on discounts in murder cases, set out by the Lord Justice General in HM Advocate v Boyle (supra at para [21]) whereby the maximum reduction ought to be no more than about one-sixth. In these circumstances, this court is bound to reconsider the level of appropriate punishment part anew.

[10] It is accepted that this offence did not involve any form of weapon. On the other hand, it was a sustained attack over a period of some time, perhaps as long as 5 minutes, and was of a particularly brutal and vicious nature. The culpability involved in such an offence must be regarded as at least the equivalent of that in many cases which have involved the use of a bladed weapon (cf Re Attorney General's Reference (No 51 of 2011) [2011] EWCA Crim 2297, Hallett LJ at para 27). In this respect, the guidance in HM Advocate v Boyle (supra) on the level of the headline punishment part is not entirely without relevance, even if it has to be noted that the level of punishment part in Boyle had regard to the particular "scourge" of knife crime (LJG (Hamilton) at para [16]). In addition, the post mortem conduct of the respondent, in effectively leaving the deceased to die in the flat and failing to seek any form of assistance, was an aggravating factor to which due regard can be made. Such conduct is different from that described in Cameron (supra, LJC (Gill) at para [44]), involving actions which could themselves have been charged as discrete criminal offences. Finally, it is of importance to note that the respondent has a significant criminal record involving a number of offences of violence or public disorder.

[11] In all these circumstances, the appropriate punishment part is 14 years and 6 months, which is reduced for the early plea from 17 years.