Muhammed Rauf, Shahida Abid and Saima Hayat v. Her Majesty’s Advocate [2019] HCJAC 72

Notes of appeal against sentence:- The appellants were convicted after trial of a charge of murder. The second and third appellants were also convicted of attempting to pervert the course of justice which involved trying to clean up the locus, disposing of internal home CCTV footage and concocting a false story and there was evidence that the third appellant had feigned unconsciousness when the paramedics arrived. The first appellant was sentenced to life imprisonment with a punishment part of 24 years and the second and third appellants were sentenced to life imprisonment with a punishment part of 25 years and 6 months in light of their conviction for attempting to defeat the ends of justice for which they were sentenced to 3 years to be served concurrently with their life sentences. The appellants appealed against their sentences it being contended that the punishment parts selected were excessive. The background was that the first and second appellants were married to each other and the third appellant was married to the deceased. It was submitted on behalf of the first appellant that having regard to other cases involving murder the punishment part selected was excessive on the basis of comparative justice. On behalf of the second appellant it was submitted that the sentencing judge had failed to give sufficient weight to the mitigating factors relating to her personal circumstances and her lack of previous convictions. It was further submitted that the trial judge had speculated about her direct involvement in the murder as opposed to her involvement in its planning and the trial judge had placed too much weight on the circumstances of charge 2 which had resulted in the punishment part for the second appellant being greater than the punishment part selected for the first appellant who, on his own account, was the main perpetrator of the physical attack upon the deceased. On behalf of the third appellant it was submitted that a significant body of evidence against her pointed to her not being involved actively in the physical attack on the deceased and the trial judge ought to have distinguished between the role played by the first appellant and the third appellant’s less direct involvement. It was submitted that the post incident clean up had been haphazard and ineffectual and the false position given to the police was demonstrably false and did not merit an increase in the third appellant’s punishment part beyond that which was imposed in relation to the first appellant. Whilst it was correct to say there was evidence of planning on the night of the murder there was no basis for the view that the planning had gone on for months prior to the murder as described by the trial judge. It was noted that the trial judge in her directions to the jury directed them that if they acquitted the first appellant of charge 1 where the Crown had presented their case on the basis of him being the principal actor in the murder then the jury would be bound to acquit the second and third appellants also. Here the court refused the appeal in relation to the first appellant. The court reiterated that there is limited value in comparing sentences between different cases noting that it is rare for two cases to be so similar that a direct comparison can usefully be carried out albeit useful general guidance was given in Boyle v HMA 2010 JC 66 for sentencing in murder cases where bladed weapons were involved. In relation to the present case the court considered the main aggravating features to be the level of planning and what the court described as the “extraordinarily brutal extent of the violence perpetrated against the deceased”. The court noted that the first appellant had himself accepted that he was the individual responsible for the injuries caused to the deceased. The court considered that it could not be said that the punishment part selected was excessive. In relation to the appeals by the second and third appellants the court considered that they were responsible for the planning of the murder, were present for it and sought to cover it up afterwards, regardless of how haphazardly they did so. The court considered, however, that on the basis of the trial judge’s directions to the jury there was no basis for convicting them on the basis of being actor but, rather, acting in concert with the first appellant. The court noted that the brutal nature of the attack was by the first appellant and whilst the second and third appellants were responsible for charge 2, it was comparatively limited in scope, and did not merit the punishment part for the second and third appellant being greater than that of the first appellant who inflicted the violence. The court did not consider the averment that the third appellant "evinced ill will and malice" towards the deceased as having any significant bearing on the overall punishment part. The court quashed the punishment parts imposed in relation to the second and third appellant and substituted the same punishment part imposed on the first appellant, namely, 24 years.