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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 10
HCA/2023/048/XC
Lord Justice Clerk
Lord Woolman
Lord Matthews
STATEMENT OF REASONS
issued by LADY DORRIAN, the LORD JUSTICE CLERK
in
CROWN APPEAL AGAINST SENTENCE
by
HIS MAJESTY'S ADVOCATE
Appellant
against
ANDREW PALFREMAN
Respondent
Appellant: R Charteris KC, Solicitor General for Scotland; the Crown Agent
Respondent: I Paterson (sol adv); Corrigan Law, Glasgow
_____________
6 April 2023
Introduction
[1]
This is a Crown appeal against a life sentence for murder by stabbing with a
punishment part of 12 years.
2
Background
[2]
The respondent was convicted of murdering Barry McLachlan by striking him on the
head and body, and repeatedly striking him on the head and body with a knife. The two
men were friends and had spent the day of the murder in each other's company, mainly at
the home of the respondent. It seems that they both consumed alcohol and drugs.
Neighbours heard the sounds of arguing and fighting during the course of the evening.
From about 11 pm and into the early hours of the morning the respondent sent messages to
various individuals in these terms:
"brother yer no gawny hear fae is again just prodded fuck oot a cunt in ma gaff n hes
deed oot the close man"
"just done cunt oot ma close"
"just stabbed fuck oot a guy n hes lyin hawf deed in my close"
"cunts fucked man, dafty anaw"
"answer ma call or yer no gawny hear fae is again just done a cunt"
Some of these messages were accompanied by images of the deceased's body, and laughing
emojis.
[3]
The respondent eventually called the emergency services just before 4am. He stated
he had stabbed the deceased when fighting with him. He stated, "I completely freaked out
... just sort of self-defence." He acknowledged that the body had been lying for some time
and that he had disposed of the knife. He added that he suffered from serious mental health
problems, and referred to a "dark passenger" and "Mr Dark Side".
[4]
When police arrived the stairwell was slippery with blood, and the body of the
deceased was on the landing outside the respondent's flat. After being cautioned, the
respondent stated "I did it. I stabbed him. I didn't mean it". He said that the deceased had
3
shouted at a dog which the deceased was looking after, and this had led to a fight. He made
numerous statements to police, and told officers that he had heard the deceased crying out
for help. The respondent had gone to bed hoping when he woke up it would not have
happened. He continued to assert that he had acted in self-defence and that the deceased
had been the aggressor, and had been nasty to the dog. The police recovered the knife from
the back garden where the respondent told them he had put it.
[5]
The respondent's account was not entirely consistent, saying at once that he had
presented the knife to scare the deceased, and to protect himself, and had blacked out after
that, yet also saying that he had "stuck it into him". The jury, having heard that there were
6 stab wounds from 7 blows, 2 of which could not be survived, clearly rejected his claims of
self-defence and provocation, both of which had been advanced at trial.
Sentence
[6]
The judge approached the length of the punishment part in three stages. First, he had
regard to the five judge decision in HMA v Boyle 2010 JC 66. It suggested that a starting
point of 16 years was appropriate where an accused had armed himself with a knife with a
view to assaulting his victim. Secondly, the trial judge reduced that figure by one year,
because he thought that the respondent had acted impulsively by using a knife when the
quarrel moved into the kitchen. In doing so, the trial judge had regard to the subsequent
conduct and remarks by the respondent noting that:
"I could have uplifted the sentence significantly because of his behaviour. I decided
... on balance that I should acknowledge that he did after a couple of hours come to
his senses. He did not run away. He admitted guilt ... I thought that 15 years was
an appropriate headline sentence."
4
[7]
Thirdly, the trial judge reduced the sentence by a further three years, to reflect the
respondent's history of mental health problems. They had been referred to in a psychiatric
report commissioned pre-trial to determine whether he was fit to plead. The psychiatrist
had access to the GP notes, which stated that the respondent (a) had been referred to mental
health services by his GP on five occasions in the period 20182020, and (b) referred to
Mr "Dark Side" and expressed concern that he could not control his desire to commit
violence, which echoed how he had spoken to the police officers. The judge states "I
thought there was evidence in the psychiatric report that his mental health problems had
affected his self-control and disposed him to violence". He also noted that the respondent
"did not have an extensive criminal record. He had one previous conviction in 2016. It
covered two offences. Both involved violence." His difficult childhood and adolescence
was a significant mitigatory factor.
Submissions for the Crown
[8]
The sentence was unduly lenient (HM Advocate v Bell 1995 SCCR 244). Knife crime
continues to be a scourge in Scotland, and deterrence is an important factor in the sentencing
of such offences. In cases of murder a punishment part as low as 12 years would not be
appropriate in the absence of strong mitigatory circumstances: Boyle, para 14. In the present
case, the trial judge has erred in selecting the starting point for the sentence. A lack of
premeditation does not automatically result in a starting point of less than 16 years:
McGrory v HM Advocate 2014 SCCR 140.
[9]
The trial judge erred in his assessment of the seriousness of the offence, the
culpability of the offender and the harm caused. Categorising the actions of the respondent
as impulsive does not take account of the severe nature of the attack having regard to the
5
number, type and location of the stab wounds. He gave undue weight to the respondent's
mental health issues standing that the psychiatric report said that he retained insight into his
behaviour and mental state, with no evidence of a major mental illness that would impair
his insight or decision making. He did not take due account of the prior convictions,
including the use of weapons. He failed to consider the whole context in which the
respondent failed to seek assistance for the deceased, despite hearing him cry for help , but
instead sent mocking messages to acquaintances. In any event this factor had already been
taken into account in the selection of a headline sentence of 15 years.
Submissions for the respondent
[10]
Weight should always be given to the views of the trial judge, especially in a case
which has gone to trial and where the judge had the advantage of seeing and hearing the
witnesses (Bell, p 251). The sentence was lenient but not unduly so. The respondent was
only 26, there had been no premeditation, he had called 999 eventually, he expressed
remorse to the author of the CJSWR. It was suggested that the judge was entitled to
conclude that there had been a loss of control by the respondent, based on what he said in
the 999 call to the effect that he had "blacked out, freaked out". The strongest mitigation lay
in his personal circumstances and disturbed childhood.
Analysis and decision
[11]
In our view the sentence falls outwith the range of sentences which a judge at first
instance, applying his mind to all the relevant factors, could reasonably have considered
appropriate. There is nothing in the circumstances of this case that puts us at any
disadvantage compared to the trial judge. He fell into error in three primary respects.
6
[12]
First, he arrived at a headline sentence, which he then discounted for various factors
he considered to represent mitigation. As the court noted in HMA v MG [2023] HCJAC 3
(para 12):
"The Scottish Sentencing Council Guideline on the Sentencing Process makes it clear
that the headline sentence is that arrived after consideration of all the circumstances
of the case, including both aggravating and mitigating factors."
Such a sentence already reflects the factors advanced by way of mitigation.
[13]
Secondly, he considered that a punishment part of 16 years would only be applicable
in a case where the accused had gone armed with a knife meaning to assault the victim, as in
Boyle. A figure at that level or above may be appropriate, depending on the circumstances
of the case, and the nature of any aggravations.
[14]
Thirdly, he did not properly recognise several significant aggravations, and the
absence of virtually any mitigation. In particular:
(a).
The nature of the attack
There were injuries indicative of a physical assault consistent with the libel including areas
of bruising, a blunt force laceration to the head which was not consistent with, say, a fall;
and a collection of bruises to the thumb and wrist described as potential defensive injuries.
According to the post mortem report, five of the stab wounds would have required at least
moderate force. The knife injuries included
(i)
A stab wound under the jaw passing through muscles underneath
(ii)
A stab wound to the left side of the neck penetrating through the base of the
neck and severing blood vessels at the top of the heart. This alone would have been
fatal.
(iii)
A stab wound on the upper left side of the chest penetrating the side,
damaging a rib, and puncturing the lung.
7
(iv)
A further wound on the side had two tracks explicable if a knife was
inserted, partially withdrawn, and re-inserted at a different angle. One of these
tracks travelled down, damaging the bowel; the other travelled upwards penetrating
the heart and would alone have been fatal injury.
Taken altogether, these suggest an attack which was both sustained and vicious.
(b).
The mental element
There was no reasonable basis to conclude that the respondent had acted impulsively, or
that his mental health problems had affected his self-control and disposed him to violence.
That does not accord with the vicious and sustained nature of the attack; nor does the
callous behaviour and attitude of the respondent after the attack. The psychiatric report did
not describe any concern regarding his mental state in the run up to, during, or after, the
alleged offence; the author concluded that he had no delusional beliefs and that he retained
insight into his behaviour and mental state. The report also noted that there had been no
follow up from earlier mental health referrals, and a specific finding at one examination that
"there was no evidence of an insight impairing mental illness". There was no evidence of a
major mental illness which would impair his insight or decision making. It is true that he
told the psychiatrist that when he gets angry he cannot control himself, but in light of the
evidence as a whole, including the psychiatric evidence, and the comment from the
respondent that he "stuck it into him", this is no basis for the trial judge to have reached the
conclusion he did. Moreover, that conclusion is not consistent with the defence advanced,
which was one of self-defence, or with the jury's rejection of provocation.
(c).
Assessing mitigation
The respondent is hardly entitled to credit for the fact that he "did not run away", having
gone to bed instead of seeking help, despite hearing the deceased crying for help, and
8
waiting for four hours before calling an ambulance. The trial judge erroneously stated that
the respondent admitted his guilt: that is precisely what he did not do. He admitted causing
the death, but disputed any criminal responsibility therefor.
(d)
Prior convictions
The trial judge did not give adequate weight to the previous convictions. In stating only
that they "involved violence", he fails to record or to take account of that both involved a
weapon, the first being a bottle, and the second a knife which had been used to inflict severe
injury and permanent disfigurement during an attempt to rob.
[15]
For these reasons the appeal must succeed. We will quash the punishment part of
12 years and substitute one of 17 years.
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