Luke Mitchell V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Hardie,Lady Cosgrove |
| Judgment Date | 02 February 2011 |
| Neutral Citation | [2011] HCJAC 10 |
| Court | High Court of Justiciary |
| Published date | 02 February 2011 |
| Date | 02 February 2011 |
| Docket Number | XC90/05 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Hardie Lady Cosgrove | [2011] HCJAC 10 Appeal No: XC90/05 OPINION OF THE LORD JUSTICE CLERK in APPEAL AGAINST SENTENCE by LUKE MITCHELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the appellant: Jackson, QC, Murray, McPhie; Robertson & Ross, Paisley
For the Crown: M Mackay AD; Crown Agent
2 February 2011
Introduction
[1] On 21 January 2005 the appellant was convicted of the following charge:
"(3) on 30 June 2003 at a wooded area near Roan's Dyke between Easthouses Road, Easthouses and Newbattle Road, both Dalkeith, Midlothian, you did assault Jodi Catherine Jones ... and did repeatedly strike her on the head and body, compress and constrict her neck and restrict her breathing, cause her to fall to the ground, apply a ligature around her arms, repeatedly strike her on the head, mouth and body with a knife or other similar instrument and you did murder her and further you did strike her head and body with a knife or similar instrument and in particular her face, ear, mouth, breast and abdomen."
[2] On 11 February 2005 he was sentenced to detention without limit of time, with a punishment part of 20 years, the sentence being backdated to 14 April 2004. He appealed against both conviction and sentence. His appeal against conviction was refused on 16 May 2008. We have now heard his appeal against sentence.
The facts
[3] The appellant was just under 15 years old at the date of the murder. The deceased was 14 years old. She was the appellant's girlfriend. On 30 June 2003, she arranged to meet him after school. She left her home at around 4 50 pm. None of her family saw her alive again. At 5 40 pm, the appellant telephoned the deceased's house and spoke to her mother's partner, asking if the deceased was there. He was told that the deceased had already left to meet him. When the deceased failed to return home at 10 pm as planned, her mother sent a text to the appellant's mobile phone, telling her daughter to come home. The appellant then telephoned the deceased's mother to tell her that he had not seen the deceased.
[4] A search party went along the Roan's Dyke Path, which passes through a wooded area and links the Easthouses and Newbattle areas of Dalkeith. The appellant joined them. As they moved down the path, the appellant went straight to a gap in the wall bordering the path, climbed through it and found the body of the deceased. The inference, which the jury seem to have accepted, was that he knew that the body was there.
[5] The deceased's body was naked apart from her socks. Her trousers had been used to tie her hands behind her back. Her clothing had been extensively cut and torn with a sharp, bladed implement such as a knife. Professor Anthony Busuttil carried out the post mortem. He found that the deceased had suffered a prolonged assault with extensive blunt force injury and that a stout, sharp pointed bladed weapon had been used against her several times before and after death. A series of incised wounds across her neck had cut through the neck muscles, windpipe, jugular vein and carotid artery. The latter injury would have caused unconsciousness within seconds and death within two minutes. It was the cause of death. There had been between 12 and 20 cuts to the neck. Extensive injuries to the face, chin, neck and head were consistent with punches, kicks or blows with a blunt weapon. One was severe enough to produce a contusion on the brain. There were signs of mechanical asphyxia possibly involving the use of clothing as a ligature. There were penetrating injuries to the forehead and tonsils, the latter caused by the introduction of a sharp object into the mouth. There was a deep cut to the face. Cutting injuries around the eyes, and deep cuts to the breast, arm and abdomen, had been inflicted after death. Extensive bruising and cuts to the hands and arms indicated that the deceased had tried to defend herself. There were no signs of a sexual assault. Professor Busuttil said that he had been involved in many homicide cases and had not come across mutilation as extensive as this, or had done so only infrequently. Mutilation was quite uncommon, especially where there was no sexual element in the attack.
[6] There was evidence that on the evening of the murder the appellant had burned the jacket that he had been wearing. The murder weapon was never found.
[7] The appellant was interviewed by the police on several occasions, at first as a witness and then as a suspect. He denied any involvement in the murder. He said that he had been at home at the time. That remained his position at the trial, and later when he was interviewed for a social enquiry report.
The punishment part
[8] In fixing the punishment part of 20 years, the trial judge said that he took into account principally the seriousness of the offence. The deceased had looked upon the appellant with affection and trust, yet he had inflicted a horrible death on her and mutilated her body. In the trial judge's opinion, this was one of the worst cases of the murder of a single victim to come before the court in recent years. If the appellant had been older, the seriousness of the offence would have merited the imposition of a punishment part among the longest that there had been. Only the appellant's age persuaded him to fix a lesser period.
The appellant's personal circumstances
[9] The appellant has no previous convictions. His parents separated when he was 11 years old. He lived with his mother and his older brother, and spent time with his father at weekends. The reports available to the trial judge suggested that the appellant had a fairly comfortable home life, and had hobbies such as horse-riding and motorcycling. Despite their separation, both parents appear to have taken part in his upbringing. They were united in disapproving of his use of cannabis.
[10] The appellant at first did well at school but latterly got into trouble and fought with other pupils. The school referred him to an educational psychologist, who monitored his transition from primary to secondary school. His mother also arranged for him to attend a different secondary school from the one to which his primary school contemporaries were to go. He did well for the first two years at secondary school, but then his performance deteriorated. His teachers had concerns about matters such as homework and school uniform. He began to get involved in fights again. He expressed an interest in satanism that was reflected in his essays and in graffiti on his schoolbooks. His English teacher was sufficiently concerned to refer the matter to a guidance teacher. There was also evidence that he was interested in knives. He regularly smoked cannabis. By the time of the murder, he was smoking it every day during and after school. He bought it in bulk and shared it with friends, including the deceased. Following the murder, he was segregated from other pupils, and was eventually excluded.
[11] Before the sentencing judge, senior counsel founded on the appellant's youth. It had taken a long time for the indictment to be served, during which the appellant had had the matter hanging over him. He and his family had had a difficult time in the months following the murder. Counsel had found the appellant to be intelligent, courteous, respectful and conscious of the seriousness of his position. There had been no difficulties in the preparation of his defence. The appellant came from a loving background. The break-up of his parents' marriage did not of itself provide the key. He remained close to his parents. They had been wholly supportive. At the age of 16, it should not just be a question of locking him up. It was to be hoped that something would be done to address the problem that must be there.
[12] The defence submitted a report by a consultant forensic clinical psychiatrist who concluded that the appellant was not suffering from mental disorder within the meaning of the Mental Health (Scotland) Act 1984. There was no evidence of severe emotional maladjustment or childhood abuse or of significant abnormality of mind at the time of the murder.
[13] Before this court senior counsel focused the appeal almost entirely on the question of the appellant's age.
The sentencing guidelines
[14] In HM Adv v Boyle and Ors (2010 SCCR 103), a decision of five judges, this court gave the following guidance for the fixing of the punishment part on a conviction for murder.
"[13] In our view there may well be cases (for example, mass murders by terrorist action) for which a punishment part of more than thirty years may, subject to any mitigatory considerations, be appropriate. In so far as Walker and Al Megrahi may suggest that thirty years is a virtual maximum punishment part, that suggestion is disapproved. On the other hand we endorse the exemplification given in the penultimate sentence of paragraph [8] of Walker of the types of murder which might attract a punishment part in the region of 20 years."
The exemplification in Walker v HM Adv (2002 SCCR 1036) to which the Court there refers is as follows:
"[8] In the absence of significant mitigation most cases of murder would, in our view, attract a punishment part of 12 years or more, depending on the presence of one or more aggravating features. In the individual case account has also to be taken of the seriousness of the offence combined with other offences of which the accused has been convicted on the same indictment, along with any previous convictions of the accused, in accordance with the terms of section 2(2) of the 1993 Act, as amended, to which we have referred. As the sentencing judge suggests in his report in the present case a number of murder cases might be of such gravity - for example where the victim was a child or a police officer acting in the execution of his duty, or where a firearm was used - that the punishment part...
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