Gordon v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Turnbull |
| Judgment Date | 12 March 2018 |
| Neutral Citation | [2018] HCJAC 21 |
| Docket Number | No 13 |
| Court | High Court of Justiciary |
| Date | 12 March 2018 |
[2018] HCJAC 21
Lord Brodie and Lord Turnbull
Advocate (HM) v Boyle [2009] HCJAC 89; 2010 JC 66; 2010 SLT 29; 2010 SCCR 103; 2010 SCL 198
Advocate (HM) v Edge 2005 GWD 20–360
Advocate (HM) v Rutherford 1947 JC 1; 1947 SLT 3; 1946 SLT (Notes) 13
Brady (Paul) HCJ, Lord Macfadyen, 15 October 1996, unreported
Elsherkisi v HM Advocate [2011] HCJAC 100; 2011 SCCR 735; 2012 SCL 181; 2011 GWD 37–758
Galbraith v HMA dvocate (No 2) 2002 JC 1; 2001 SLT 953; 2001 SCCR 551
MacAngus v HM Advocate sub nom Kane v HM Advocate[2009] HCJAC 8; 2009 SLT 137; 2009 SCCR 238; 2009 SCL 408
R v Douglas [2014] EWCA Crim 2322; [2015] 1 Cr App R (S) 28
R v Inglis [2010] EWCA Crim 2637; [2011] 1 WLR 1110; [2011] 2 Cr App R (S) 13; (2011) 117 BMLR 65; [2011] Crim LR 243
R v Webb [2011] EWCACrim 152; [2011] 2 Cr App R (S) 61; [2011] Crim LR 419
Ross v Lord Advocate [2016] CSIH 12; 2016 SC 502; 2016 SCCR 176; 2016 SCLR 764; 2016 GWD 8–155; 149 BMLR 54
Walker v HM Advocate 2003 SLT 130; 2002 SCCR 1036
Wilson (Susanne) HCJ, Lady Rae, 9 January 2018, unreported
Anon, “Mercy Killing Brother Admonished”, The Herald, 15 October 1996 (Online: http://www.heraldscotland.com/news/12085275.Mercy_killing_brotheradmonished/ (27 April 2018))
Gordon, GH, The Criminal Law of Scotland (4th ed, W Green, Edinburgh, 2017), vol 2, 30.13, 30.34–30.40
Hume, D, Commentaries on the Law of Scotland Respecting Crimes (4th Bell ed, Bell and Bradfute, Edinburgh, 1844), i, 183
Law Commission, Murder, Manslaughter and Infanticide (Law Com no 304, 2006), Pt 7 (Online: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/03/lc304_Murder_Manslaughter_and_Infanticide_Report.pdf (25 April 2018))
Morrison, NMP, Sentencing Practice (W Green, Edinburgh, 2000), para C11.0019
Scottish Government, Criminal Justice and Licensing (Scotland) Bill: Explanatory notes (and other accompanying documents) (SP Bill 24–EN) (Scottish Parliament, Edinburgh, March 2009) (Online: http://www.parliament.scot/S3_Bills/Criminal%20Justice%20and%20Licensing%20(Scotland)%20Bill/b24s3-introden.pdf (25 May 2018))
Justiciary — Sentence — Plea of guilty to culpable homicide — Diminished responsibility — Wife of appellant suffering from terminal illness and extreme pain — Appellant smothering wife with pillow — Whether no appropriate alternative to custodial disposal — Whether period of imprisonment excessive
Ian McAllister Gordon was indicted for trial, on 6 September 2017, at the High Court of Justiciary in Glasgow at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on a charge of the murder of his wife. On 8 September 2017, the trial having commenced, the appellant tendered a plea of guilty to culpable homicide. On 24 October 2017, the appellant was sentenced to a period of three years and four months’ imprisonment. The appellant appealed to their Lordships in the High Court of Justiciary against sentence.
The appellant and his wife had been married for 43 years. The appellant's wife suffered from health problems, including chronic and serious anxiety, with a particular anxiety in relation to hospitals and medical treatment. In 2015, the appellant's wife's health began to deteriorate and her treating doctors suspected her to be suffering from lung cancer. She declined investigation and formal diagnosis of her condition. The appellant stopped work in order to care for his wife. On 24 April 2016, the appellant's wife was admitted to hospital, suffering from intolerable pain. She remained unwilling to undergo investigative procedures and was discharged home.
In the early hours of the morning of 28 April 2016, the appellant telephoned his son and daughter to advise them that their mother had died. The appellant contacted the police who, upon their arrival, noted the appellant to be in a state of some distress. The appellant stated to police that he had smothered his wife with a pillow, thus ending her life. He advised police that he had made a pact with the deceased that she would not need to go into hospital again and that she had been suffering from terrible pain. Post-mortem examination subsequently confirmed that, at the time of her death, the appellant's wife had been suffering from advanced stage lung cancer with a poor prognosis for survival.
The appellant thereafter intimated an intention to plead guilty to culpable homicide, under sec 76 of the Criminal Procedure (Scotland) Act 1995 (cap 46). The Crown accepted a plea of culpable homicide during the course of his trial for murder, on the basis of the appellant's responsibility being diminished by a depressive episode. The trial judge imposed a sentence of three years and four months’ imprisonment, discounted from a period of five years, having regard to the appellant's early offer of a guilty plea. The appellant appealed against sentence.
Held that: (1) the appellant's responsibility was diminished not because of his motives but because, by reason of an abnormality of mind, his ability to determine or control his actings, as compared with the ability of a normal person, was substantially impaired (paras 38, 39); (2) the process of determining an appropriate sentence in a case of culpable homicide was much less structured that in a case of murder, denunciation was merely one among a number of objectives in sentencing and was one which could be achieved without necessarily imposing a custodial sentence (paras 41, 44, 48); (3) the sentencing judge had erred in the weight he gave to the elements of denunciation and retribution, at the expense of an appropriate regard to the appellant's abnormal state of mind at the relevant time (paras 50, 56); (4) the public interest in making clear society's disapproval of criminal conduct had been achieved by the prosecution and the recording of the guilty verdict, the appellant was not a risk to the public and the sentencing objectives of rehabilitation and deterrence had no application in the circumstances, and it could not be said that only a custodial sentence was appropriate in the appellant's case (para 59); and appeal allowed and sentence quashed and admonition substituted therefor.
Galbraith v HM Advocate (No 2) 2002 JC 1 considered and R v Webb[2011] 2 Cr App R (S) 61followed.
The cause called before the High Court of Justiciary, comprising Lord Brodie and Lord Turnbull, for a hearing on 25 January 2018.
At advising, on 12 March 2018, the opinion of the Court was delivered by Lord Brodie—
Opinion of the Court—
[1] This is an appeal at the instance of Ian McAllister Gordon.
[2] On 6 September 2017 the appellant went to trial in the High Court at Glasgow on a charge of the murder of his wife. Evidence was led for the Crown. On the morning of the third day of the trial, 8 September 2017, the Dean of Faculty for the appellant tendered a plea of guilty to culpable homicide in these terms:
‘[O]n 28 April 2016 at [an address in Troon], you IAN MCALLISTER GORDON did assault Patricia Ann Gordon, born 25 March 1953, your wife, then residing there, now deceased, and did place a pillow over her face, restrict her breathing and you did kill her.’
[3] The Advocate-depute accepted that plea. The trial judge adjourned the diet for sentence until 11 September 2017 on which date he heard a full agreed narrative from the Advocate-depute of what the Crown accepted were the relevant facts of the case. The trial judge further adjourned the diet for sentence until 24 October 2017 in order to obtain and consider a criminal justice social work report.
[4] On 24 October 2017, having heard from the Dean of Faculty in mitigation, the trial judge imposed a sentence of three years and four months’ imprisonment, that being discounted from a period of five years’ imprisonment having regard to the appellant having offered to plead guilty to culpable homicide by way of a sec 76 letter as early as 20 July 2016.
[5] The appellant now appeals that sentence. His grounds are: first, that in the exceptional circumstances of the case an alternative to a custodial disposal was appropriate; and, second, that in the event of it being held that there was no appropriate alternative to custody, the period of imprisonment selected was excessive.
[6] What follows is what we understand to have been accepted by the Crown as having been established by the evidence led during the first two days of the trial and otherwise in the course of its precognition of the case.
[7] The appellant is 67 years of age, having been born in 29 April 1950. He has worked all his life and was a self-employed painter and decorator until he stopped working during 2015 in order to support and care for his wife whose health was deteriorating. She was 63 years old when she died. She had retired on medical grounds from her job as a shorthand typist in 2006. A long term heavy smoker, she suffered from chronic obstructive pulmonary disease (‘COPD’).
[8] The appellant and his late wife were married for 43 years. They had two children, a daughter, Mrs Gail Whyte, and a son, Gary Gordon. They were, as their children and other family members agreed, a devoted couple. The appellant loved, and would do anything for, his wife.
[9] We note (from the history contained in Dr Louise Ramsay's report of 8 June 2017) that from no later than April 2015 Mrs Gordon suffered from symptoms and exhibited signs of serious respiratory illness additional to what might be explained by COPD. She had a persistent cough. She was losing weight. These symptoms were investigated by conventional X-ray, CT scanning, bronchoscopy and lung biopsy. Eventually the results showed a shadow on her right lung and enlarged lymph nodes but the results of the biopsy were inconclusive.
[10] In addition to her respiratory illness Mrs Gordon suffered from a long-standing condition of serious anxiety. A particular anxiety...
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