His Majesty’s Advocate v. Andrew Palfreman [2023] HCJAC 10

Crown appeal against sentence:- The respondent was convicted of a charge of murder following a trial at the High Court and was sentenced to life imprisonment with a punishment part of 12 years selected by the trial judge. The Crown appealed against the punishment part imposed it being contended that it was unduly lenient. The charge which the respondent was convicted of involved him murdering the deceased, Barry McLachlan, by striking him on the head and body, and repeatedly striking him on the head and body with a knife. The circumstances were that the respondent and the deceased were friends and on the day in question had spent time in each others’ company at the home of the respondent, during which time both consumed a significant quantity of drink and drugs. During the course of the evening neighbours heard the sounds of arguing and fighting. At around 4am the following day the respondent called the emergency services and on their arrival said that he had stabbed the deceased when fighting with him and stated:- “I completely freaked out ... just sort of self-defence.” The pathological evidence disclosed that the deceased had suffered 6 stab wounds 2 of which could not be survived. The jury rejected the respondent’s claim that he was acting in self-defence and convicted him of a charge of murder. The trial judge imposed a punishment part of 12 years under reference to the decision of the court in HMA v Boyle 2010 JC 66. The trial judge stated that:- (1) a starting point of 16 years was appropriate where an accused had armed himself with a knife with a view to assaulting his victim; (2) the trial judge reduced that figure by one year as he considered that the respondent had acted impulsively by using a knife when the quarrel moved into the kitchen; (3)  the trial judge reduced the sentence by a further three years, to reflect the respondent’s history of mental health problems (a defence psychiatric report had been commissioned in advance of trial); and (4) the respondent had a minimal schedule of previous convictions for two offences in 2016. On behalf of the Crown it was submitted that the sentence was unduly lenient, with a punishment of 12 years only being appropriate in cases where there were strong mitigatory circumstances and an absence of premeditation does not automatically equate to a starting point of less than 16 years (McGrory v HMA 2014 SCCR 140). It was further submitted that the nature of the attack, in particular, the number, type and location of the stab wounds had been given insufficient weight by the sentencing judge and too much weight had been given to the respondent’s mental health issues there being no major mental illness that would impair his insight or decision making. Furthermore, messages sent by the respondent in the aftermath of the incident which included “just stabbed fuck oot a guy n hes lyin hawf deed in my close” together with his previous conviction for the use of a weapon ought to have been given more weight by the sentencing judge. On behalf of the respondent it was submitted that whilst the sentence may be viewed as lenient it was not unduly so, with the trial judge in the best position, having heard the evidence and the surrounding circumstances, to assess the most appropriate sentence. It was submitted that the sentencing judge was entitled to conclude that there had been a loss of control by the respondent given what he said in the 999 call to the effect that he had “blacked out, freaked out”. The strongest mitigation related to the respondent’s personal circumstances including his difficult childhood. Here the court considered that the punishment part selected was unduly lenient. The court considered that the sentencing judge erred by:- (1) deducting from a headline sentence a figure to reflect what he considered to be mitigation as the headline sentence should be arrived at after consideration of all the circumstances of the case, including both aggravating and mitigating factors under reference to the Scottish Sentencing Council Guideline on the Sentencing Process; (2) considering 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; and (3) failing to properly recognise several significant aggravations, including:- (a) the nature and extent of the attack; (b) the mental element in that there was no reasonable basis to conclude that his mental health problems had affected his self-control and disposed him to violence; and (c) his previous convictions which involved the use of weapons (including a knife which had been used to inflict severe injury and permanent disfigurement during an attempt to rob). The court also noted the absence of any substantial mitigation. In the circumstances the court quashed the punishment part of 12 years and substituted one of 17 years.