Ian McAllister Gordon v. Her Majesty’s Advocate [2018] HCJAC 21

Note of appeal against sentence:- On 8 September 2017, at Glasgow High Court, on the third day of the trial, the appellant pled guilty to the culpable homicide of his wife by placing a pillow over her face, restricting her breathing and suffocating her. That plea was accepted by the Crown following some evidence being heard, including from the daughter of the appellant and the deceased. The appellant had first offered to plead guilty to culpable homicide by way of a section 76 letter back on 20 July 2016. The Crown did not accept the plea at that time. After obtaining a Criminal Justice Social Work Report the trial judge imposed a sentence of 3 years and 4 months imprisonment, that being discounted from a period of 5 years imprisonment having regard to the appellant having offered to plead guilty to culpable homicide prior to the service of the indictment. The appellant appealed against the sentence imposed it being contended that, in light of the exceptional circumstances of the case, an alternative to a custodial sentence was appropriate or, in the event that the court considered that there was no such alternative, the length of the sentence was excessive. The circumstances were that the appellant was married to his wife for 43 years and they had two children together, Gail and Gordon. At the time of her death the deceased was 63 years of age and had been suffering from Chronic Obstructive Pulmonary Disease and by April 2015 she suffered from symptoms and showed signs of serious respiratory illness beyond what might be explained by COPD. Further medical investigations disclosed a shadow on her right lung and enlarged lymph nodes albeit the biopsy results were inconclusive, however, Dr David Sword, a consultant respiratory physician, was of the view that it was highly likely that Mrs Gordon had stage 3 B lung cancer with a 5 year survival rate of 5%, provided she was to receive the appropriate treatment. Mrs Gordon also suffered from a serious anxiety condition and she was disinclined to attend hospital for treatment, despite the belief that she had lung cancer. The Crown accepted that when the pain became intolerable on 27 April into 28 April 2016, Mrs Gordon decided that she would end her life by taking an overdose of the pain relief medication that had been prescribed. The Crown also accepted that the appellant knew that his wife had made a decision to end her life in this way and that was something that he had agreed to with a view to sparing her more pain. He brought the medication to her and it is likely that he assisted in its administration. At 04.30 hours on 28 April 2016 the appellant telephoned his daughter to tell her that her mother was dead. The appellant’s son and daughter attended the family home and the explained that his wife had been in terrible pain and that he was going to go to jail but he did not regret it. The appellant said that his wife had taken increasing amounts of diazepam and tramadol but that the painkillers were not working. The police attended and there were no signs of a disturbance or violence and nothing to make the police think it was anything other than a natural death. The appellant asked his children to leave the room and thereafter he stated to the police:- “I am only going to say this once. I put a pillow over her head to finish her off. We made a pact that I would help her out. That was at 3am. It only took a minute. That is it.” He was then detained in relation to the crime of murder to which the appellant stated:- “No matter what happens now, I loved my wife all the years I was with her and we had a pact that she would not go into hospital again due to all the circumstances I have explained to you, she is now free. Thanks”. During the course of a police interview, in the presence of his solicitor, the appellant was fully co-operative and candid in relation to the circumstances of his involvement in the death of his wife. When charged with murder he replied: “I did it because she wanted me to. I loved her and still love her and that's all”. The post mortem examination confirmed she had been suffering from lung cancer which had a poor prognosis even if detected at an early stage. There was no evidence of a conscious person struggling against attempts to asphyxiate her and the Crown accepted that the deceased did not struggle against the pillow being placed over her mouth. The post mortem findings were consistent with the appellant's account of him having smothered her with a pillow. Toxicology identified the presence of prescription drugs within her system. The pathologists expressed the opinion that it was also possible that these drugs could have been a significant factor in, or perhaps account for, the deceased’s death. The level of prescription drugs identified at post-mortem would have been sufficient to explain her death and the absence of admissions by the appellant of smothering his wife with the pillow would not have allowed a conclusion to be reached in relation to the circumstances of her death in light of the available medical evidence. In advance of trial Dr Louise Ramsay, a consultant forensic psychiatrist, was instructed by the defence to carry out an evaluation of the appellant’s mental state which concluded with her opinion inter alia that:- “...there is now evidence to suggest that at the time of the alleged offence he was unable by reason of mental disorder to appreciate the nature or wrongfulness of any conduct ... It would be my opinion that it would be appropriate to put to a jury whether the severity of this mental disturbance was sufficient to reduce his responsibility from full to partial and constitute diminished responsibility.” A psychiatric report obtained by the Crown in advance of trial did not provide a basis for a plea of diminished responsibility. It was the Crown’s position that as the appellant accepted that he had caused the death of his wife and that the issue at trial would be whether the appellant was guilty of murder or culpable homicide and, as such, he was indicted for murder. Following the evidence of the deceased’s daughter who gave an insight into the dynamics within the household, in particular, the relationship the appellant shared with his wife and that the appellant would seek to conceal his mental suffering, the Crown’s view of the case altered. The trial advocate depute considered it was now in the public interest for him to form the view that, rather than leaving it to a jury to decide on the balance of probabilities, diminished responsibility had in fact been established. The court described the conduct of the Crown as scrupulous. Here it was submitted on behalf of the appellant that it was not only diminished responsibility that was a factor in the case but the medical condition of the deceased and her fear of medical intervention. In addition, had it not been for the appellant’s full and frank admissions of smothering the deceased, in light of the post mortem findings, it is unlikely there would ever have been a prosecution. On being invited to address the court on the question of sentence the advocate depute agreed that the deceased’s phobia of hospitals was an important factor and associated himself with the mitigatory factors placed before the court on behalf of the appellant. Here the court gave a full exposition in relation to the law of culpable homicide and the development of sentencing practice in relation to ‘mercy killing’ cases and murder/culpable homicide in general. The court observed the differences between the law in Scotland and that in England. The court noted that in relation to the present case the basis of the plea being tendered was that at the relevant time the degree of the appellant’s responsibility should be regarded, as a matter of law, as only partial or diminished, not because of his motives but because by reason of an abnormality of mind the ability of the appellant to determine or control his actings, as compared with the ability of a normal person, was substantially impaired. The court considered a number of English authorities including R v Webb [2011] 2 Cr App R (S) 61 where the facts bore similarities with those in the present case. In that case the appellant was sentenced to 2 years imprisonment in relation to a conviction for manslaughter by reason of diminished responsibility following trial on an indictment for murder. The appeal in Webb was allowed to the extent of substituting a sentence of 12 months imprisonment suspended for 12 months with a supervision order attached. Here the court allowed the appeal. The court considered that the sentencing judge misdirected himself in relation to the weight given to the elements of denunciation and retribution when determining the appropriate sentence. It was considered that too much weight had been given to the measure of culpability or blameworthiness of the conduct at the expense of sufficient weight being given to the abnormal state of the appellant’s mind at the relevant time. The court considered that such an approach in sentencing amounted to an error in that no relevance appeared to have been given to the appellant’s mental state at the time he killed the deceased. The court found a number of similarities between the present case and Webb including the age of the appellant, his good character and his employment record which ended when he gave up work to care for his ill wife. The court also noted that in light of the appellant’s good character section 204 (2) of the 1995 Act applied to him. In relation to the question posed on behalf of the appellant “what is the good reason for this man to stay in jail” the court considered that there was none and the trial judge was wrong to determine that it was in the public interest that only a custodial sentence was appropriate. The court observed that objectives of rehabilitation and individual deterrence had no application. On behalf of the appellant it had been said that the case and the sentence was “putting tragedy upon tragedy” and the court agreed with that view. Here the court quashed the sentence of 3 years and 4 months imprisonment and substituted it with an admonition.