Concert complexities

Murder or culpable homicide?

In many murder trials the identity of the assailants is not in doubt and the focus is on their intentions, or lack of same.

The purpose is to determine whether there should be a conviction carrying a mandatory life sentence and the likelihood of at least 12 years before parole will be considered, or a conviction for culpable homicide with (probably) a significantly shorter determinate sentence – or indeed a conviction for simple assault, if the homicide involved the actions of a group with some playing a more significant role than others.

The tragic death of Brett Lodge at the hands of three of his close school friends provided the backcloth for Parfinowski v HM Advocate [2013] HCJAC 123 (17 October 2013). The appellant and his co-accused Declan Robertson were convicted of murder, while a third accused, Cameron McKail, was convicted of assault and a fourth acquitted.

All had been at a house party where drink and cannabis were consumed by several of those present. The deceased and the appellant (both aged 17) were in all probability quite drunk. A row had developed and the deceased stormed out of the house. Robertson followed him, carrying a large baseball bat. They became involved in an exchange. The appellant came up behind the deceased and punched him. A scuffle ensued between the two. Robertson then struck the deceased on the back with his baseball bat. The deceased turned to face him and was confronted by Robertson and McKail, who had a smaller baseball bat. Each hit the deceased with their bats, a blow from Robertson causing him to fall unconscious. Robertson and McKail then ran off and the appellant approached the deceased and kicked, stamped or jumped on his head before making off.

The whole incident was over very quickly, and witnesses gave differing accounts. On one version, the appellant, who had been wearing light canvas shoes, kicked the deceased in the ribs, not the head. The fatal injury was said to be caused by Robertson’s baseball bat hitting the deceased’s skull, causing an extradural haematoma. Kicking with canvas shoes could not have caused or contributed to the fatal injuries suffered.

Effect of concert

The Crown case was that the appellant had acted in concert with Robertson and McKail; by continuing the assault after the deceased had been felled, he adopted the actions of Robertson who had delivered the fatal blow. The Crown further contended that McKail acted in concert with Robertson in an assault with weapons and was responsible for the death, but sought only a conviction for culpable homicide.

At trial, the defence accepted that the appellant had punched the deceased initially and kicked him at the end of the incident, but maintained that he had not acted in concert and should only be convicted of assault – presumably on the basis that it could not be said with certainty that he had seen the assault with baseball bats.

The trial judge directed that if the jury accepted the appellant had not acted in concert with anyone, they could convict him of assault; however, if they took the view that he had been acting in concert with Robertson, they could convict Robertson of culpable homicide and the appellant of murder, but could not convict Robertson of murder and the appellant of culpable homicide, as the appellant’s continuation of the assault had “upped the ante” and his attack on the unconscious victim was wickedly reckless.

The appeal court reiterated that the alternative verdict of culpable homicide should only be withdrawn from the jury with great caution, and only if there was no factual basis for it (Brown v HM Advocate 1993 SCCR 382). The present case was one of spontaneous concert where the common purpose might have changed in the course of events. There was scope for a finding that there were striking differences between the actions of Robertson and the appellant (Melvin v HM Advocate 1984 SCCR 113), albeit it was open to the jury to conclude that the appellant had stamped on the deceased’s head.

The court concluded that the jury had been deprived of a line of reasoning which might have resulted in their distinguishing the actions of Robertson and the appellant and convicting the latter of culpable homicide. The appellant’s conviction for murder was quashed and a conviction for culpable homicide substituted with a sentence of seven years’ detention.

Undue leniency

Crown appeals against sentence are relatively infrequent, since the test set out by Lord Justice General Hope in HM Advocate v Bell 1995 SCCR 244 at 250D-E is a high one. It must be shown that the sentence imposed fell outside the range which the judge at first instance, “applying his mind to all the relevant factors, could reasonably have considered appropriate”.

There have been three such appeals reported recently, two of which were unsuccessful. In HM Advocate v McCourt [2013] HCJAC 114 (25 September 2013), a case which attracted a lot of publicity, the appeal court refused to interfere with a 12-month community payback order requiring the respondent to undertake 300 hours of unpaid work, and disqualification from driving for five years until passing the extended competence test, for causing the death of a cyclist by careless driving.

It was accepted that the respondent had been guilty of momentary inattention. His vehicle had struck the rear of the deceased’s bicycle in a low speed impact, but one which caused her to lose her balance and fall to the road, whereby she sustained head injuries from which she died two days later.

The sheriff applied the definitive guideline “Causing Death by Driving” issued in July 2008 by the Sentencing Guidelines Council in England (approved in HM Advocate v Noche [2011] HCJAC 108). The relevant factors were the respondent “failing to have proper regard to vulnerable road users” – the deceased being a 75 year old cyclist – and having a previous conviction for causing the death of a cyclist by dangerous driving, 27 years earlier, when he had been sentenced to 18 months’ imprisonment and disqualified for 10 years.

The respondent had been turning right and waited until a bus passed. As he turned he failed to notice the deceased on the marked cycle lane. There was no evidence of speed being involved, or drink or drugs. The sheriff concluded that a mitigating factor was that the deceased’s “deliberate decision not to wear a safety helmet contributed significantly to the likelihood of death resulting”.

Although rule 59 of the Highway Code recommends the wearing of a helmet, published papers were produced at appeal by the Solicitor General which showed it was a matter of dispute whether this reduced the risk of injury. She submitted with reference to the respondent’s previous conviction that a custodial sentence of at least nine months should have been imposed.

The appeal court agreed the deceased had not been at fault and doubted whether the absence of a helmet could properly be regarded as a mitigatory feature. It accepted the sheriff’s assessment that the respondent expressed remorse, albeit he had proceeded to trial, and considered that he had “carried out the delicate and detailed sentencing exercise recommended by the guidelines and gave full reasons for the conclusion he reached”. The court upheld the sheriff’s disposal.

Within the range?

In HM Advocate v East [2013] HCJAC 124, also decided on 25 September, the court upheld the Crown appeal where a sentence of 13 months’ imprisonment, discounted from 18 months to reflect a plea of guilty under s 76 procedure, had been imposed for being concerned in the supply of diamorphine. The respondent had been in possession of heroin with a maximum street value of £1,500 and had several drugs convictions dating back to 1994. In particular, he was sentenced to three years’ imprisonment for trafficking in 2003, to eight months in 2006 for an identical offence to the present one, and to four and a half years in 2010.

The appeal court had “little difficulty in reaching the view” that “the high test in Bell has been met”, and substituted a sentence of 26 months, discounted from 39 months to reflect the early plea.

Finally, in HM Advocate v Smith [2013] HCJAC 137 (31 October 2013), a three-year community payback order with a supervision requirement and 200 hours’ unpaid work (discounted from 250 hours to reflect the plea at preliminary hearing) was held not to be unduly lenient. The sentence was imposed in relation to an assault and attempted robbery at a general store in Armadale involving the presentation of a firearm or imitation firearm by a 17 year old whose face was masked by a scarf. The shopkeeper noticed his assailant’s hand shaking. He took a chance and grabbed the gun, which he discovered was a plastic BB gun. He pulled away the scarf and recognised the gunman, who fled.

The shopkeeper and his wife were badly affected by the incident. The respondent telephoned the police a few hours afterwards and made a confession. He said he could not remember much as he was “vallied out of his mind”. He was tearful and distressed when arrested and appeared under the influence of alcohol.

The respondent had no previous convictions and had been asked to leave home a few weeks earlier by his mother. He had stayed with an uncle who had given him access to drugs. He had a home background where there was considerable domestic violence. He was now in the care of an aunt who was exercising a positive influence on him, and was now in a relationship with a girl of his own age.

Reference was made to Kane v HM Advocate 2003 SCCR 749 and the considerations which required to be deployed in cases of young offenders.

While the appeal court regarded the offence as extremely grave and one which would normally attract a custodial sentence, it held that the sentencing judge had weighed up the various factors and the sentence could not be said to be outwith the range which could be imposed in all the circumstances.