Punishment part of life sentence for man convicted of knife murder found too lenient after Crown appeal

About this case:

• Citation:
  [2023] HCJAC 10
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Andrew Palfreman originally received a punishment part of 12 years after being convicted of the murder of Barry McLachlan by repeatedly striking him with a knife. The Crown case on appeal was that the sentence was unduly lenient given the lack of strong mitigatory circumstances.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Woolman and Lord Matthews. The Solicitor General, R Charteris KC, appeared for the Crown and I Paterson, solicitor advocate, for the respondent.

Severe nature

The respondent and the deceased had been friends and spent the day of the murder in each other’s company consuming alcohol and drugs. Neighbours reported hearing the sounds of arguing and fighting over the course of the evening, and from about 11pm onwards the respondent sent messages to various individuals in which he said that he had just stabbed someone. He eventually called the emergency services just before 4am.

When police arrived at the locus, the stairwell was slippery with blood and the body of the deceased was lying on the stairwell outside the respondent’s flat. He told police after being cautioned that he had stabbed the deceased, but that he had acted in self-defence after the deceased had shouted at a dog he was looking after. The jury, having heard evidence that the deceased suffered six stab wounds, two of which could not be survived, rejected the defence’s claims of self-defence and provocation, and found the respondent guilty of murder.

In considering the length of the punishment part, the sentencing judge took a starting point of 16 years given the respondent had armed himself with a knife with a view to assaulting his victim. That figure was then reduced by one year to reflect the impulsive nature of the crime and a further three to reflect the respondent’s history of mental health problems, as noted in a pre-trial fitness report. It was also noted that he did not have an extensive criminal record and that his difficult childhood was a significant mitigatory factor.

It was submitted for the Crown that the sentence was unduly lenient. Knife crime continued to be an ongoing problem that required strong deterrence, which was not achieved by the starting point selected. Further, categorising the offence as impulsive did not take into account the severe nature of the attack, and undue weight had been given to the respondent’s mental state, given there was no evidence of a major mental illness and the fact that his limited criminal record did include the use of weapons.

‘Stuck it into him’

Lady Dorrian, delivering the opinion of the court, began: “In our view the sentence falls outwith the range of sentences which a judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate. There is nothing in the circumstances of this case that puts us at any disadvantage compared to the trial judge.”

Noting the aggravations present in the case, she said: “There was no reasonable basis to conclude that the respondent had acted impulsively, or that his mental health problems had affected his self-control and disposed him to violence. That does not accord with the vicious and sustained nature of the attack; nor does the callous behaviour and attitude of the respondent after the attack. The psychiatric report did not describe any concern regarding his mental state in the run up to, during, or after, the alleged offence; the author concluded that he had no delusional beliefs and that he retained insight into his behaviour and mental state.”

She continued: “There was no evidence of a major mental illness which would impair his insight or decision making. It is true that he told the psychiatrist that when he gets angry he cannot control himself, but in light of the evidence as a whole, including the psychiatric evidence, and the comment from the respondent that he ‘stuck it into him’, this is no basis for the trial judge to have reached the conclusion he did. Moreover, that conclusion is not consistent with the defence advanced, which was one of self-defence, or with the jury’s rejection of provocation.”

Lady Dorrian concluded: “The respondent is hardly entitled to credit for the fact that he ‘did not run away’, having gone to bed instead of seeking help, despite hearing the deceased crying for help, and waiting for four hours before calling an ambulance. The trial judge erroneously stated that the respondent admitted his guilt: that is precisely what he did not do. He admitted causing the death, but disputed any criminal responsibility therefor.”

The court therefore quashed the original punishment part of 12 years and substituted one of 17 years.