John Leathem v. Her Majesty’s Advocate [2017] HCJAC 10

Note of appeal against sentence:- On 5 September 2016, at Glasgow High Court, the appellant pled guilty at a Preliminary Hearing to a charge of murder and a charge of attempting to defeat the ends of justice. In relation to the murder charge he was sentenced to life imprisonment with a punishment part of 27 years discounted from 30 years on account of the plea backdated to 26 March 2016 when he was first remanded in custody. In relation to the charge of attempting to pervert the course of justice he received a sentence of 6 years’ imprisonment to run concurrently with the sentence for murder and the punishment part was increased by 3 years. The appellant appealed against his sentence in relation to the punishment part selected, the level of discount and the sentence imposed on the attempt to pervert the course of justice charge. It was submitted on behalf of the appellant that the starting point for the punishment part was excessive and inconsistent with recent authorities. Whilst it was conceded that there were a number of aggravating factors present including the nature of the attack which included the deceased being struck in the region of 146 times, the age of the deceased, the conduct of the appellant in the time between the commission of the offence and the discovery of the deceased’s body, it was nevertheless submitted that there were present a number of mitigating factors which the court had not taken sufficient account of. These included that the appellant was a first offender, he was married with a child, he was the owner of a successful business and he had expressed genuine remorse for his conduct. Having regard to a number of recent authorities, including Wade & Coates v HMA [2014] HCJAC 88, it was submitted that these other cases contained a number of aggravating factors that were absent in the present case and that punishment parts of 30 years or more are restricted to those types of cases referred to which often contained elements like dismemberment after death. Counsel for the appellant founded upon the case of HMA v Boyle and Others 2010 JC 66 referring to a previous case (Walker v HMA 2003 SLT 130) and submitted that a punishment part in a case involving the murder of a child was around 20 years. It was submitted on behalf of the appellant that the discount allowed was insufficient having regard to the particular circumstances of the timing of the plea. It was submitted that the appellant had signed a section 76 letter two months after his first appearance on petition, however, at that time a psychiatric report instructed by the defence became available in which it was suggested that a psychological assessment of the appellant ought to be carried out. As such, the accelerated procedure was not utilised and by the time the psychological issue had been addressed by the defence an indictment appointing a Preliminary Hearing had been served on the appellant. It was submitted on the appellant’s behalf, however, that he had always accepted responsibility for the conduct and the discount allowed by the sentencing judge was insufficient, albeit it was accepted that the appellant would not be entitled to the maximum discounted allowed by law. In relation to the sentence imposed on charge two it was submitted on behalf of the appellant that the concurrent sentence of 6 years and the uplift in the punishment part by 3 years was excessive, particularly in light of other cases referred to, for example, in Chalmers v HMA 2014 SCCR 291 the conduct involved an attempt to dismember the victim’s body and concealing the body so it was not discovered for 16 months by which time it was impossible to ascertain the cause of death. On behalf of the Crown it was submitted that the impact of the section 76 letter not resulting in a plea at that stage was that the Crown had to engage in full preparation of the case. Here the court allowed the appeal, however, the court did not agree with counsel for the appellant’s submission in relation to a punishment part of around 20 years in relation to the murder of a child. On a review of current sentencing practice the court considered that a starting point of 30 years was excessive. In addition, the court considered that the sentence in relation to charge 2 and the uplift in the punishment part by 3 years was excessive. The court selected a starting point for the punishment part of 25 years with a concurrent sentence of 3 years in relation to charge 2. The court considered that the punishment part should be increased by one year to 26 years which sentence should be discounted by a period of 3 years to reflect the utilitarian benefit of the plea resulting in a punishment part of 23 years.