APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Menzies	[2012] HCJAC 78 XC670/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by CHANELLE KATELYNNE BARRETT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: IM Paterson, solicitor advocate; Patterson Bell

Respondent: Hughes AD; Crown Agent

9 May 2012

[1] On 15 September 2011, after a trial at the High Court in Dunfermline, the appellant was found guilty of 3 charges. The first of these was possession of heroin at Castleview House in Edinburgh on 11 January 2011. The second was, on the same day and at the same place, assaulting the now deceased William McPhee by repeatedly struggling and attempting to punch him, repeatedly punching and kicking him on the head and body and repeatedly biting him on the body and threatening him. The co-accused, William McArdle was found guilty of the murder of Mr McPhee by stabbing him thereafter. The third charge was, again on the same date and at the same place, of assaulting the complainer, Colin Stewart, by repeatedly threatening him and stabbing him on the head and body with a knife, pursuing him and striking him on the head with a dog chain, all to his severe injury, permanent disfigurement and to the danger of his life and attempting to murder him. The libels on the assault charges stated that the appellant had previously evinced malice and ill-will towards both the deceased and the complainer. The appellant was also on bail at the time of each offence. On the 10 October 2011, the trial judge admonished the appellant on the first charge and sentenced her to 9 months imprisonment on the second and 9 years imprisonment on the third. These sentences were to run concurrently.

[2] The judge reports the circumstances as involving the appellant, who was aged 19, being in a relationship with her co-accused, Mr McArdle, who was aged 25. They lived together in a flat in Gilmerton. The deceased was aged 43 and occupied a flat in the same block, along with the complainer, who was the same age. The deceased and the complainer were cousins, from the travelling community and both were heavy drinkers and heroin users. The deceased and the complainer had gone to another flat in the block, which was used for drinking and drug taking. The appellant was also there. Mr McArdle had been in the vicinity of this flat, although he had not visited it. He became involved in assaulting a third party, whom he thought had been in a relationship with the appellant. He had then left to go to his mother's house in Granton.

[3] The appellant asked the complainer, who had said that he was going to the shops, to get her a bar of chocolate. She gave him a pound to buy a 99p bar. However, realising that he also required to buy bread, the complainer later only produced a 50p bar for the appellant on his return to the flat. On learning this, the appellant became suddenly and inexplicably enraged. She telephoned Mr McArdle in Granton to come and deal with the situation, claiming that she had been assaulted. She left the flat and returned with her bull terrier and a knife. Mr McArdle made his way back from Granton and there was some kind of confrontation outside the block of flats between him, the appellant and the deceased. The deceased returned to the flat which he shared with the complainer. The deceased and the complainer then went downstairs to placate the appellant regarding the chocolate bar.

[4] What followed thereafter was that the complainer encountered the appellant and Mr McArdle in a corridor. The appellant said to McArdle, something along the lines of: "that's the bastard, stab him, stab him". Mr McArdle did just that, some 6 times; these wounds being in the area of the chest and causing profuse bleeding. The appellant joined in this attack and struck the complainer on the head with the dog chain. The complainer collapsed. The appellant and Mr McArdle then turned their attention to the deceased, who was also stabbed, this time fatally. The appellant was acquitted in any involvement in the stabbing of the deceased, although convicted of the initial concerted assault upon him.

[5] The complainer was taken to hospital, promptly, and his wounds were treated. He did have a pneumothorax, but ultimately, as chance would have it, none of the wounds caused serious damage and he was discharged from hospital on the following day. There is no doubt, however, that his life had been in danger.

[6] In selecting the sentence he did, the trial judge explains that the appellant had reacted in an unreasonable and aggressive fashion to, what the judge describes as, an utterly minor matter and had been responsible for the continuing argument. The appellant had enlisted Mr McArdle to assault the deceased and the complainer in a significantly violent manner. She had also obtained the dog chain and the knife. She had not just been a participant, but a significant driving force, in relation to the events which occurred. On the other hand, the trial judge accepted that after the incident was over and the extent of the injuries were known the appellant had been shocked about what she had done. In that regard, the court notes the terms of the social enquiry report, which state that the appellant had come from a troubled background, especially caused by her father's heroin addiction. She had continued with a chaotic lifestyle on returning to Scotland from her father's address and taking up with Mr McArdle.

[7] The appellant has several convictions for public disorder and had been on deferred sentence for separate contraventions of sections 3 and 5 of the Emergency Workers (Scotland) Act 2005 at the time of this offence. She had also recently completed periods of probation for shoplifting and breaches of section 41(1)(a) of the Police (Scotland) Act 1967.

[8] Against this background, it was argued that the sentence of 9 years was excessive. This was contended, having regard especially to the chaotic background which had then engulfed the appellant. It was pointed out, and the court accepts, that, since her incarceration, the appellant has tried to turn herself around and has, as it was put, "thrown herself fully into prison life" in the hope that she will be "far stronger a person on her release". She has seen a psychologist and has undertaken courses with a view to obtaining an HNC in hairdressing and following the career path of her mother. At the time of the offence the appellant's relationships with her family had been at a low ebb and there had also been a change in that; with her mother contacting her on a daily basis and also visiting her in prison. The appellant's attitude was said to have undergone a dramatic change. Reference was made, as a comparative case, to HM Advocate v Mullen 2007 SCCR 330; a Crown appeal which a 49 year old first offender, who had been the actor in a stabbing involving wounds of a similar number but to the abdomen of the victim, had received a sentence of five years.

[9] It was submitted that one option, which had been open to the trial judge, had been to impose an extended sentence. So far as the latter is concerned, this is not a ground of appeal and the court does not have the trial judge's view on to that matter. It does not consider that it can entertain a submission of that nature at this stage.

[10] In relation to Mullen, the court does not derive great assistance from it because of the different circumstances. It involved a middle aged first offender, who was reported to have been living quietly with his wife and son at the time of the offence and had had many positive aspects to his life.

[11] The court is impressed with the change which is reported in the appellant's lifestyle and approach. However, the court has to take into account that this appellant has been convicted of attempted murder. That conviction is based on the fact that she specifically obtained the assistance of her then boyfriend to come from Granton to Gilmerton to deal with the persons whom she regarded as having insulted or assaulted her in some manner. The court is particularly concerned that the appellant is reported to have told her co-accused to stab the complainer, Colin Stewart, and that is precisely what the co-accused then did, repeatedly. It is also not without significance that she was involved, to a degree, in assaulting the now deceased William McPhee. In all these circumstances, the court does not consider that this sentence can be described as excessive. It will therefore refuse the appeal with the observation that, if the appellant continues with her progress, she will be an obvious candidate for early release when the parole board come to consider her situation.

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