Paul Spence V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Lord Carloway,Lord Justice General |
| Neutral Citation | [2007] HCJAC 64 |
| Court | High Court of Justiciary |
| Published date | 09 November 2007 |
| Date | 09 November 2007 |
| Docket Number | XC564/07 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Nimmo Smith Lord Carloway | [2007] HCJAC 64 Appeal No: XC564/07 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL AGAINST SENTENCE by PAUL SPENCE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Carroll, solicitor advocate; McClure Collins, Edinburgh
Alt: McConnachie, Q.C., A.D.; Crown Agent
9 November 2007
[1] The appellant, who was charged with the murder of John Purcell, was convicted of culpable homicide. He was sentenced to eight years' detention in a Young Offenders Institution. He has appealed against that sentence. Regard being had to the procedural history of the case, it was decided that it might justify guidance being given by the court (in furtherance of section 118(7) of the Criminal Procedure (Scotland) Act 1995) as to the matter of sentence in circumstances where an accused had, it was said, offered to plead to a lesser charge (in this case to culpable homicide when charged with murder) and in the event had been convicted of that lesser charge. The Lord Advocate, at the invitation of the court, lodged written submissions on the general issues arising and the Advocate depute was heard in elaboration of these.
[2] In the late evening of 23 September 2006 the now deceased was making his way to his mother's house along Easterhouse Road in Glasgow. He came upon an altercation between two gangs of youths, known respectively as the "Den Toi" and the "Aggro". Fights between these gangs, involving the use of weapons, were, it appears, a regular disfigurement of life in Easterhouse. Part of what subsequently occurred was filmed on a CCTV camera. The appellant's representative invited us to view that video, which we did. The deceased can be seen within the group comprising the Den Toi gang. Some of the members of that group appear to be shouting (presumably abuse) in the direction of other persons outwith the view of the camera. Some at least of the Den Toi group can be seen to have weapons - a large stick is evident and a weapon (possibly a sword) is taken from a vehicle. The person identified as the deceased is then seen to leave the group and walk, out of camera, in the general direction of where the rival group may be supposed to be. He is not carrying anything. Shortly thereafter the members of the Den Toi gang are seen to begin running in the same direction. Almost immediately the deceased comes back into camera view, staggering. By that time he had obviously sustained the stab wound from which he subsequently died.
[3] The appellant is 18 years of age. He was aged 17 in September 2006. He has no previous convictions, with the exception of one for assault by spitting - which can be disregarded for present purposes. The evidence was unclear as to what precisely were the appellant's actions prior to his encounter with the deceased. There was testimony, however, before the jury that he had earlier been fighting along with the Aggro gang and, from more than one witness, that he was then armed with a knife. The deceased, who was unarmed, was stabbed by the appellant with that knife, a single blow penetrating through his left arm and entering the chest horizontally. The total length of the wound was five inches. At least moderate force would have been required to inflict it.
[4] On 3 October 2006 the appellant appeared on petition charged with murder. He was remanded in custody. On 8 December 2006 he was indicted to a preliminary hearing of the High Court at Glasgow set for 10 January 2007. On 19 December 2006 an agent acting for him wrote to the procurator fiscal, Glasgow under reference to his case as follows:
"I refer to the above and confirm that I act for Mr. Spence in this case. I am writing to enquire as to whether the Crown has considered its position in the event that a plea of guilty to culpable homicide were proposed. I shall be obliged if you will acknowledge safe receipt and let me know the position. The defence post mortem report indicates that the person who committed the stabbing may not have intended to kill. I look forward to hearing from you with regard to the above".
In reply the Advocate depute then responsible for the preparation of the case advised the defence that a plea of culpable homicide would not be accepted by the Crown. Thereafter the appellant appeared, legally represented, at the preliminary hearing on 10 January. He pled not guilty to the charge and acknowledged that he was fully aware of the terms of section 196 of the 1995 Act (sentence following guilty plea). A special defence of self-defence was lodged on his behalf. Preparations for the trial were discussed. On the motion of the appellant's representative the preliminary hearing was continued until 9 February. On that date a further continuation of the preliminary hearing to 5 March was sought by the defence and granted and the court assigned 3 May as the date of trial. In the event the trial commenced on 10 May. On that date the appellant's representative informed the trial Advocate depute that the appellant "would plead guilty to culpable homicide". The trial Advocate depute rejected that offer. No further discussion took place between parties' representatives. When the case was called the appellant intimated to the court that he adhered to his plea of not guilty and adhered to the special defence previously lodged. The trial proceeded on 10, 11, 15 and 16 May. On that last date the jury returned against the appellant a verdict of culpable homicide. It also deleted from the libel the averment that he did "repeatedly attempt to strike [the deceased] on the body". No issue of provocation was raised at the trial, the inference to be drawn from the verdict being that the jury was not satisfied that the appellant intended to kill the deceased or that he acted with wicked recklessness.
[5] In his report to us the trial judge observes that in sentencing the appellant he took full account of his youth, his relative lack of offending, his employment history (which was good) and the reports which had been obtained (a social enquiry report and a psychological report). He continues:
"I also had regard to the fact that he was convicted of an offence to which he had been willing to plead guilty at an early stage. He had made a number of efforts through his agents to persuade the Crown to accept such a plea ... ".
[6] Mr. Carroll for the appellant submitted that, while the plea of self-defence had been rejected by the jury, it had been arguable. It was not suggested that the appellant's action against the deceased was justified by any need to defend himself against an onslaught by armed members of the Den Toi gang. The defence was, it seems, founded on a remark, said to have been made to the police by a witness, to the effect that the deceased was "gesturing towards the Aggro to come ahead ... " (the witness in evidence had no recollection of making that remark).
[7] The trial judge allowed the special defence to go to the jury. It is unnecessary for us to express a view as to whether he was right to do so. We observe only that on the information before us we are unsurprised that the...
To continue reading
Request your trial
-
Her Majesty's Advocate V. David Graham
...of one third of the sentence, despite the early plea, was inappropriate (ibid, at para [10]). I agree entirely. [46] In Spence v HM Adv (2008 JC 174), the guidance provided by this court as to appropriate levels of discount (at para [14]) is identical to that suggested in the Definitive Gui......
-
Gemmell, Robertson, Gibson and McCourt v HM Advocate
...[2005] HCJAC 83; 2006 JC 60; 2005 SCCR 608 Ross v McGowan [2009] HCJAC 82; 2010 SCL 106; 2009 GWD 38-653 Spence v HM AdvocateSCUNK [2007] HCJAC 64; 2008 JC 174; 2007 SLT 1218; 2007 SCCR 592; 2008 SCL 256 Stewart v GriffithsUNK 2005 SCCR 291 Strawhorn v McLeodUNK 1987 SCCR 413 Sweeney v HM A......
-
Her Majesty's Advocate V. Bryan Robert Boyle+greig Maddock+robert Kelly
...to that offence. But times have changed and it is appropriate that we say something about the proper approach. In Spence v HM Advocate 2008 J.C. 174 (where the offender was convicted of culpable homicide) the court gave at paragraph [14] further guidance on the discounts which might, follow......
-
Christopher Kelly V. Her Majesty's Advocate
...is appropriate to dispense at each stage of the proceedings have now been laid down by the Lord Justice General in Spence v HMA Advocate [2007] HCJAC 64." Specific reference is then made to paragraph [14] of that decision. The Commission go on to refer to some reported decisions of this cou......
-
Four Models Of Judicial Reasoning In Sentencing
...HCJAC 62, 2008 JC 142. 109Gill v Thomson [2010] HCJAC 99, 2012 JC 137. 110See Du Plooy v HM Advocate 2005 1 JC 1; HM Advocate v Spence [2007] HCJAC 64, 2008 JC 174; Gemmell v HM Advocate [2011] HCJAC 129, 2012 JC 223; and Wilson v Shanks [2018] HCJAC 50, 2018 SCCR 302. [2019] Irish Judicial......
-
The Power to Increase Sentence Ex Proprio Motu on Appeal
...HM Advocate 1985 SCCR 431; Donnelly v HM Advocate 1988 SCCR 386. The two most recent examples are Murray and Spence v HM Advocate,15 15 [2007] HCJAC 64. both of which are considered below. B. THE POWER UNDER SCRUTINY: CONSIDERATIONS OF FAIRNESS & SUITABILITY A good starting point for discus......