[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Brown v. Her Majesty's Advocate [2002] ScotHC 331 (04 December 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/331.html Cite as: [2002] ScotHC 331

[New search] [Help]

Brown v. Her Majesty's Advocate [2002] ScotHC 331 (04 December 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Marnoch Lord Abernethy	Appeal No: C697/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST SENTENCE (PUNISHMENT PART) by ANDREW WILSON BROWN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: C. Shead; Stirling Eunson & Ferguson

Respondent: D. Batchelor, Q.C., A.D.; Crown Agent

 

20 November 2002

1. On 30 June 1988 the appellant, along with a co-accused, was found guilty of the murder of David Dunn on 4 March 1988, for which he was sentenced to life imprisonment. The punishment part of his sentence has recently been fixed at 16 years, against which he has appealed.
2. According to the report to the Parole Board provided by the trial judge shortly after the appellant's conviction, the appellant and the co-accused jointly attacked Mr. Dunn with a knife and a metal pipe. The appellant had the knife and the co-accused the pipe. The two accused had visited a public house during the night of 30 June 1988. Conversation turned to the victim, who had a reputation for indecent assaults on women. There was evidence that at one time he had been interested in purchasing a house in the vicinity of the house of one of the accused. He had been warned off. The two accused then went to the house opposite that of Mr. Dunn, and from there launched an attack on him which resulted in his death. The cause of death was wounds inflicted by a knife, but there was ample evidence that it was a joint attack and the deceased was also struck many times with a metal pipe or bar. Both the appellants had taken drink that night. The evidence revealed that it was a cold-blooded attack on the victim, based on information about his character which was not entirely correct. The evidence showed that the appellant was the prime mover. The co-accused had been in regular employment. Neither of the accused had previous convictions of any consequence. In fixing the punishment part of 16 years the sentencing judge states in his report that he regarded as aggravating features the fact that the attack had been pre-planned and that the appellant had gone to the scene of the attack carrying a knife.
3. On behalf of the appellant Mr. Shead accepted that the sentencing judge was entitled to regard these as relevant aggravations. However, he compared the present case with that of Stewart v. H.M. Advocate 2002 S.C.C.R. 915 in which a punishment part of 14 years had not been regarded as excessive. In that case the appellant had deliberately sought out the victim in his house in the middle of the night and had strangled him when he refused to give him the means of taking money from his bank account. Mr. Shead founded particularly on the deliberate nature of that crime.
4. Mr. Shead also referred to observations which the court had made in Stewart which suggested that, in the absence of significant aggravating or mitigating factors, a punishment part not exceeding 12 years, would be appropriate. This, he noted, appeared to be in line with the guidance which had been provided in England and Wales by the Lord Chief Justice in his Practice Statement dated 31 May 2002.
5. Mr. Shead also submitted that, despite what was said in Stewart v. H.M. Advocate about the difference between the fixing of a punishment part and the making of a recommendation under section 205(4) of the Criminal Procedure (Scotland) Act 1995 and earlier legislation, the absence of a recommendation, as in the present case, was relevant. At the same time he emphasised that, unlike a recommendation, the fixing of a punishment part entailed that a person who had been sentenced to life imprisonment required to serve at least a minimum term. However, it should not be assumed that the process for considering his release thereafter would necessarily be swift.
6. As regards Mr. Shead's reference to Stewart it must, of course, be recognised that no two cases are exactly the same. For the rest, when regard is had to the approach which was taken by judges in considering whether a recommendation should be made, it is difficult to see what inference can properly be taken from the absence of such a recommendation. In that respect we have nothing to add to what the court said in Stewart v. H.M. Advocate. At the same time it has, of course, to be recognised that, unlike a recommendation, the fixing of a punishment part sets a minimum term which must be served by the prisoner before the question of his possible release can be considered.
7. Having considered the circumstances of the case, we are in no doubt that the sentencing judge was well entitled to regard the factors to which he referred as aggravations. In passing we would observe that there is no question of the guidelines issued by the Lord Chief Justice being treated as if they applied in Scotland. On the other hand they may be of assistance in drawing attention to a number of factors which may be relevant, according to the circumstances of the individual case.
8. Having considered the circumstances of the present case, including the undoubted aggravations to which we have referred, we have come to the conclusion that when it is set against the background of other cases, the period fixed by the sentencing judge can be seen to be excessive. We shall quash the punishment part of 16 years and substitute one of 14 years in its place.