APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Nimmo Smith Lord MacLean	[2007] HCJAC 74 Appeal No: XC615/06 OPINION OF THE COURT delivered by LORD NIMMO SMITH in NOTE OF APPEAL in terms of sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995 by THE LORD ADVOCATE Appellant; against JOSEPH HARRISON Respondent: _______

Act: McConnachie, Q.C., A.D.; Crown Agent

Alt: Richards, Q.C., Gianni; Watts Legal Practice, Montrose

14 December 2007

[1] This is a Crown appeal against the sentence passed on the respondent in the High Court at Edinburgh on 3 August 2006. The respondent had pled guilty in the following terms, at a continued preliminary hearing in the High Court at Aberdeen on 19 October 2005, to a charge in an indictment that:

"(2) on 22 February 2005 at Castle Terrace, Aberdeen, Denside of Catterline or elsewhere, whilst within motor car registered number P595 FSR, you did assault Susan Mary Third ... and did seize her by the neck, place your hands around her neck and compress same, place a ligature and compact disc carrier case or similar item against her neck and compress same, and did kill her".

The Crown accepted the respondent's plea of guilty to this charge under substitution of the word "kill" for the word "murder" in the last line, and his pleas of not guilty to three other charges in the indictment. After sundry procedure to obtain the reports referred to below, on 3 August 2006 the sentencing judge imposed an extended sentence of imprisonment for a period of nine years, comprising a custodial term of six years and an extension period of three years, backdated to commence from 28 February 2005. He stated that were it not for the timing of the plea the custodial term would have been one of eight years. The Crown now invite us to hold that this sentence was unduly lenient, in terms of section 108 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act").

[2] The respondent's plea was accepted by the Crown on the basis that he killed the deceased at a time when he was suffering from diminished responsibility. As to the history of the respondent, the history of the case and a narrative of the facts, the Advocate depute, when moving for sentence, read out the following account, which is set out in full in the sentencing judge's report to us and which we think appropriate to repeat here in full:

"History of the accused

The accused Joseph Harrison is 28 years old. His date of birth is 18 January 1977. At the time of the incident under consideration he was employed as a farm worker. He is single but has a partner and a young child. The accused has two children as a result of a previous relationship.

The accused has previous convictions as libelled in the schedule tendered.

History of the case

The accused appeared on petition at Aberdeen Sheriff Court on 28 February 2005. Judicial examination was conducted. Bail was not applied for and he was remanded in custody.

On 8 March 2005 the accused appeared on a new petition which libelled additional charges. He made no plea nor declaration and was fully committed. He was remanded in custody.

Narrative of the facts

At about 7.05 p.m. on Sunday 26 February 2005, the accused's girlfriend, Sophie Stevenson, arrived home at the accused's flat in Brechin and found that the front door was locked. The porch light and TV were on. This was unusual. On a sideboard in the kitchen, Ms Stevenson found a note in the accused's handwriting.

It read,

'So sorry, I wished we lived far away from here. Please come to C me in jail as I love you and baby. Please 4give me and don't 4get me. Yours 4ever, Joe.'

Ms Stevenson was worried and contacted the accused's sister, Patricia Harrison. Ms Stevenson continually attempted to contact the accused. She left 50 text messages on his mobile phone between that moment and 10 a.m. on Sunday 27 February 2005.

At about 7.30 p.m. on Saturday, 26 February 2005, the accused arrived at the house of Joanna Bonner in Inverbervie. Ms Bonner was a friend of the accused. The accused began to talk about the situation with his former partner and his children. Ms Bonner had a visitor at the time and was surprised to see the accused in the circumstances. She noticed that the accused looked upset and that his eyes were bloodshot. She told the accused that she had a visitor and she closed the door. However, when she looked out of her window, she saw the accused walking on the pavement in front of her house and she felt sorry for him. She opened the door and allowed the accused into her home.

Inside, the accused told Ms Bonner that he wanted to die. The accused was looking at himself in the mirror and talking to himself. There were tears coming down his face. Ms Bonner asked the accused if he had taken any drugs. The accused replied that he had not.

At one point Ms Bonner gave the accused a hug to console him. He kissed her on the lips and put his hand on her stomach. He pushed her gently backwards onto the bed. Ms Bonner formed the impression that the accused wanted to have sex with her, but she said to him that that could not happen. The accused again became emotional and started to cry. The accused told Ms Bonner that he had come to say goodbye before he killed himself. Ms Bonner was sufficiently concerned for the accused that she called for an ambulance. The accused was unhappy that Ms Bonner had called an ambulance. Ms Bonner locked the accused inside her house so that he could not escape medical attention. The accused became increasingly agitated and said that he wanted to go away and kill himself.

Ambulance staff arrived about 15 to 20 minutes later. The accused persuaded them that there was nothing wrong with him. He said that he had been feigning with Ms Bonner in order to get her to let him into her house. The accused told the paramedics that he had not taken alcohol nor drugs. The paramedics had no reason to disbelieve him. The accused declined the paramedics' offer of further medical assistance. Police constables arrived. They were informed by the paramedics that the accused appeared fit and well and that they had no concerns for his wellbeing. The accused provided full details to the PCs. He told them that he lived in Brechin with his pregnant girlfriend. He told them that he was having problems with his former partner on the issue of access to his children. The accused was upset when talking about this and he said that he was taking legal advice on the matter. The accused told the PCs he was going to return home to Brechin. He said that he owned a red Nissan Almera motor car. He was allowed to leave.

After leaving, the accused drove to Aberdeen. At approximately 11.50 p.m., he was involved in an altercation with Deborah Ann Henderson or Blackburn. This happened as Ms Blackburn was driving along New Pier Road, Aberdeen, and Pocra Quay, Aberdeen. Ms Blackburn's car was met by the accused's red Nissan Almera coming round the corner from Pocra Quay into New Pier Road being driven '... like a bat out of hell'. There was only space for single line traffic to pass due to the cars parked on either side of New Pier Road. Ms Blackburn assumed that the accused would reverse and let her pass through, since he had just entered New Pier Road and she was far along the lines of parked cars.

The accused was gesticulating to Ms Blackburn and motioning that she was to reverse. The accused got out of his car and came up to Ms Blackburn's driver door window. Ms Blackburn rolled her window down. The accused was shouting, 'I can't fucking hear you.' He was also shouting, repeatedly, 'Reverse the fucking car.' Ms Blackburn describes the accused as being like, '... a man possessed, if he wasn't on drugs he should have been on medication'. She said that the accused was,

'... almost nose to nose with me. He never blinked at any stage and his pupils were really big. I don't recall there being any smell of alcohol on his breath. Although I was trying to speak, the man was just away with the fairies.'

As Ms Blackburn reversed up the street, the accused had his car bumper against hers as if to force her to reverse. Ms Blackburn was having difficulty in completing such a difficult manoeuvre. She stopped and telephoned her husband, pointing to the accused's registration plate in an attempt to suggest that she was telephoning the police. The accused then reversed his car, accordingly to Ms Blackburn, '... like a bat out of hell'. The accused then drove off along Pocra Quay towards the Harbour. Ms Blackburn had noted the accused's registration number. Ms Blackburn was very frightened and upset as a result of this incident. The accused denied any knowledge of the incident.

At about 12.02 a.m. on Sunday 27 February 2005 the accused was seen on CCTV camera to drive his car into Castle Street in Aberdeen. He parked and was seen to be accompanied by the deceased. The deceased worked as a prostitute in Aberdeen. The accused was accompanied by the deceased to the Lloyds TSB cash machine on Castlegate. The accused withdrew £50. The accused and the deceased returned to the accused's car. The accused then drove into Castle Terrace, Aberdeen.

At about 12.55 a.m. on 27 February 2005, Ms Sharon Smith was walking on Castle Terrace, Aberdeen. The accused's red Nissan Almera was deliberately driven at her as she crossed the road. She managed to hide behind a parked car. The accused then did a three point turn and drove back towards her. The accused's car mounted the pavement and drove towards her. At the last minute the accused swerved onto the roadway and drove off towards the Beach Boulevard roundabout.

At some time between 12.02 a.m. and 12.55 a.m. the accused strangled the deceased in his car in Aberdeen city centre. The accused then put the body of the deceased into his car boot. The accused's car was then seen on CCTV cameras on various streets in Aberdeen, eventually driving south out of Aberdeen. The final CCTV footage shows the accused stopping his car and buying petrol at a Shell garage on Wellington Road to the south of Aberdeen city centre.

At about 1.25 a.m. on Sunday 27 February 2005, police officers had arranged a roadblock on the A90 Aberdeen to Dundee road at Hillhead of Glasslaw, approximately one mile south of the A92 interchange at Stonehaven. This was on account of a fatal road accident. It had nothing to do with the accused. All traffic was to be diverted onto the southbound A92. A police car was placed across the southbound carriageway.

The police officers became aware of a car coming towards them at speed as they were placing cones across the southbound carriageway of the A90. The constables signalled to the driver to slow down with the intention of diverting the car onto the southbound A92. The car was estimated to be travelling at about 70 miles per hour. The car failed to stop and continued down the A90. The car was a red Nissan Almera and the driver appeared to be alone in the car. The driver was the accused and the red Nissan Almera was his car.

At about 7.30 a.m. on Sunday 27 February 2005, a man called Walter Chapman looked out of his bedroom window at Denside House, Catterline. He immediately noticed a red car with its boot up. The red car was stopped in a field nearby. This was highly unusual and immediately noticeable. Mr Chapman could see something lying in front of the car. He used his binoculars but still could not determine what was lying in front of the car. Mr Chapman decided to go and have a look. He discovered the body of the deceased young lady in front of the red car in the field, close to the front passenger side wheel. He checked the deceased's body for a pulse. The body of the deceased was cold to the touch. The deceased's body was only partially clothed. The deceased's body had a top which was up above her breasts. The deceased's body was naked from the breasts down apart from a pair of black boots. Mr Chapman immediately arranged for his wife to contact the police.

At about 10.10 a.m. on the same day, Sophie Stevenson, the accused's partner, received a telephone call from the accused. The accused told her that he was in St. Cyrus and that he had walked along the coastline all night from Aberdeen. He told her that he had done something really bad and that the police would have to be involved. Ms Stevenson immediately contacted the accused's sister, Patricia Harrison. Ms Harrison immediately arranged for her partner, James Ogilvie, to go and pick the accused up in his car. Mr Ogilvie drove to St. Cyrus but could not find the accused. The accused made a second telephone call to Ms Stevenson. He said that he was near to Hillside. Ms Stevenson told the accused that Mr Ogilvie was on his way to pick him up. She asked the accused what was the bad thing that he had done. The accused replied, 'I've killed somebody.'

Mr Ogilvie found the accused at a bus shelter at Hillside. He immediately noticed that the accused's clothes were in a mess. There was mud on the accused's trousers, which were torn at the knee. The accused said to Mr Ogilvie, 'I've really done it this time. I've killed somebody.' Mr Ogilvie asked the accused what he meant. The accused replied, 'I've killed a prostitute.'

During the journey Mr Ogilvie continued his conversation with the accused. The accused appeared to be rambling. He told Mr Ogilvie that there had been a road block outside Aberdeen. He said, 'I've passed one police car and then there was another one. I drove straight through the middle of it'. Mr Ogilvie asked the accused where his own car was. The accused said, 'It's in a field outside Aberdeen'. Mr Ogilvie then asked where the female was. The accused replied, 'She's lying beside the car. I've stripped the clothes off her.' Mr Ogilvie took the accused to the accused's home where Ms Stevenson was waiting. The accused repeated the details he had told Mr Ogilvie to Ms Stevenson. Ms Stevenson immediately telephoned the police.

Police officers came to the accused's home. Ms Stevenson told them what the accused had said to her. The accused agreed voluntarily to be taken to Stonehaven police station for interview. The accused was cautioned en route in the police car. The accused was medically examined and deemed fit to be interviewed.

At 5.45 p.m. on Sunday 27 February 2005 the accused was interviewed under tape recorded conditions, having been cautioned. When asked what he could tell the police about the deceased's death, the accused replied, 'I strangled her.'

The accused also said

'I went to my mum's, that's in Brechin. My girlfriend was working. Mum was going on about the two kids that I don't see. When she speaks about them it gets me wound up, trying to go through the courts to get access, em so I left there and wisnae in a very good frame of mind after that. I kept trying to tell her I would get it sorted. She kept going on about it. I went and got some drink after that. I went to Inverbervie; I went to see a friend who I hadn't seen for a long time. She has a history sort of mental, she called the paramedics and two police officers came. I said to them I would be all right. Two police officers said they would follow me to Brechin, make sure I got there. Got in the car, that got me thinking, girlfriend would be finished work and be upset and everything. Just took off in the car and ended up in Aberdeen. I don't know Aberdeen very well. Went up by the Beach Boulevard as I used to go there when I was younger tenpin bowling and stuff like that, and from there you can go down to the docks. I stopped at the dock, I was a bit hysterical and that. This lassie came over to the car window and she got in. I was quite hysterical at the time she got in the car with me. There after while said she wanted money cause she had been in the car. I felt like I was trying to speak to her, tell her problems and that said she wanted money off me. So I went to the bank and took out fifty pounds and got back in the car and she took the whole fifty pound off me and I just snapped.'

The accused was asked what then happened. He replied, 'I got in the car with the money, she just took it and I strangled her.' The accused was asked what he strangled her with. He replied,

'Hands and then I don't remember all the events, came out of Aberdeen. There was like a police car across the road. I was completely hysterical. Anyway, I got past, went down some road, don't have a clue where. Before I reached the police car I see she must have had some things. I threw them out of the car, a bag, phone kept on ringing, threw it out of the window as well. Stopped the car down in a field, whatever reason I don't know, took her clothes off and laid her down next to the car and I just kept on walking down the coast. Got to St. Cyrus and phoned for a taxi at the phone box at St. Cyrus. He said he would just be coming and never came. From there walked to Hillside, phoned by girlfriend and told her what I'd done. My sister's boyfriend had apparently been out looking for me. He picked me up at Hillside, got back to Brechin, got my girlfriend to phone the police and told them what I had done'.

The accused was asked if he had strangled the deceased in the car or outside. He replied, 'In the car.' He went on to say that he had used his hands and that the deceased had initially struggled with him. He said that he had put the deceased's body in the boot. When asked, the accused denied having sexual contact with the deceased. It was put to the accused that there appeared to be marks on the deceased's neck indicative of some sort of implement or ligature, the accused replied, 'The box. The CD box. I used the CD box, the face of the CD box.'

The accused was formally cautioned and arrested on suspicion of murder.

Pathology

Post Mortem examination of the deceased's body was carried out by Doctors Saddler and Booth. They concluded that the deceased died as a result of strangulation. There were classic signs of strangulation, such as petechiae evident over the deceased's eyelids, inside the lips and behind the ears. The most significant injuries were to the front of the deceased's neck from the level of the chin above to the collar bones below. There was diffuse pink bruising to the upper front of the deceased's neck. Within this area there were several overlapping horizontally aligned ligature marks, typically up to 110 millimetres in length and 2 to 3 millimetres in width.

On the right side of the deceased's upper neck there were three superficial discontinuous linear scratch type abrasions. There were two larger abrasions on the under surface of the deceased's chin at the mid line and to the left side. There was extensive bruising over the left collarbone. Beneath the skin at the front of the deceased's neck there was extensive haemorrhage within the muscles and particularly severe bruising along the under surface of the lower jaw. There was extensive bruising inside both lips and laceration of the lower lip most likely where it had been forcibly pressed against the deceased's front teeth.

The pathologists' opinion was the death occurred as a result of strangulation most likely caused by throttling with the hands and the application of some form of ligature across the front of the deceased's neck. When asked specifically whether the accused's CD carrier, which they were shown, could have caused those injuries, both pathologists thought that the horizontally aligned marks on the deceased's neck were more likely to have been caused by the application of a ligature such as a thin cord.

There were dried abrasions to both of the deceased's knees, the right hip bone and upper back area. There was no associated underlying bruising and these injuries were thought to have occurred after the deceased had died. These injuries were thought to be consistent with the deceased's body having been removed from the accused's car boot and movement thereafter.

There was no evidence of injury to the deceased's vulva or vagina to suggest forcible penetration. However, there was a small tear to the deceased's anal margin. The pathologists are of the view that this injury occurred after death, due to the absence of associated bruising.

They both expressed a conclusion, with 70% certainty, which points towards the accused having had sexual contact with the deceased post mortem. This falls to be considered along with the forensic evidence to the effect that the body of the deceased had been placed on the bonnet of the accused's car at the locus where it was found.

Forensic Analysis

Forensic scientists' examination, based upon DNA analysis, concluded that there had been some form of sexual contact between the accused and the deceased. The deceased's DNA type was detected on the left front of the accused's boxer shorts.

Examination of the accused's car was carried out. The forensic scientists concluded, inter alia, that the muddy, semi-clothed body of the deceased had been placed over the bonnet of the accused's car, with the head lying towards the windscreen washer jets. The deceased's body may have then slid from that position to the ground, explaining the position in which the deceased's body was found."

[3] The respondent had been the subject of extensive psychiatric investigation by the time that the sentencing judge came to pass sentence on him. After he had been taken into custody, he became a patient in the State Hospital, Carstairs. On 19 October 2005 two expert reports were available to the Court, the first from Dr. Lindsay Thomson, Consultant Forensic Psychiatrist and Senior Lecturer in Forensic Psychiatry, and the second by Dr. Elizabeth Willox, Specialist Registrar in Forensic Psychiatry. It was agreed that both of these experts should give oral evidence. Their evidence, in summary, was that the respondent had a mental disorder within the meaning of section 53 of the 1995 Act, as substituted by the Mental Health (Care and Treatment)(Scotland) Act 2003, that there was a significant risk to the health, safety or welfare of the respondent or to the safety of others if he did not receive medical treatment, that such medical treatment was available and that there was a place available for him at the State Hospital. All the requirements contained within section 53 for an interim compulsion order were met with regard to the respondent. The recommendation therefore was for an interim compulsion order in terms of section 53. The sentencing judge accepted this recommendation and made an interim compulsion order in respect of the respondent for 12 weeks, specifying the hospital in question as the State Hospital.

[4] Also on 19 October 2005, senior counsel for the respondent addressed the sentencing judge on the circumstances of the case. There had, she said, been no past psychiatric history of the respondent, but there had been indicators for assistance. In his medical records it was stated that on 8 October 2002 his mother had attended at the General Practitioner because she was "concerned about her son's mental health". There was also, counsel said, a family history of mental illness, which was referred to in the psychiatrists' reports.

[5] With regard to the circumstances of the offence, counsel said that the respondent was unable to give a complete account of the events of 26 and 27 February 2005. She did, however, put forward the following account on his behalf. On the latter date he was under a number of "stressors". He was working a seven-day week. He had seen his paternal grandparents that day for the first time in some years. His parents were separated and both of them were in ill-health. A paternal aunt was due to visit the family home the next day after many years and it was likely that there would be arguments. In relation to his previous convictions, the breach of the peace in January 2005 related to a previous partner (in respect of whom there had been an interim interdict on 15 September 2003). There had been a suggestion in the newspaper that he was taking his children away from her. The respondent had thought that local people would think he was a paedophile and that had been hugely stressful. His ex-partner, however, still phoned and asked him to come to the house to see the children. On 26 February he had felt fuzziness in his head as, indeed, he had felt for about six months. He remembered leaving the farm at about 3 p.m. He had some anxiety about the relatives who were coming the following day. He drove to his mother's house in Brechin. There she kept going on at him about doing something in relation to his children. He then drove to see Ms Bonner, as mentioned in the narrative given by the Advocate depute. His demeanour and appearance at that time were unusual in that they were scruffy. After that he had little recollection but he remembered sitting in his car crying. At that time he was in the harbour area at Aberdeen. The deceased approached the car and asked him if he was all right. He thought he told her his life story. He had no idea how long he sat in the car. She said she needed money. That did not upset him and he went to an ATM and took out £50. She had never asked for any specific amount. They were seen to have a kiss and cuddle before getting back into the car. She took his mobile phone and put her number on to it in case they needed to speak again. After they got back into the car he gave her the £50. She then directed him down the street. He thought that she just wanted to be dropped off but she offered to give him oral sex. Counsel said that it was because of this that he lost all control and killed her. It seemed that the front security panel of the CD player in the car had been used as a weapon. That is what he told the police in his interview. He then got out of the car and put the deceased's body in the boot. He remembered nothing more until her mobile phone began to ring. He threw that out of the car and also some of her belongings. He considered committing suicide at a hilltop known as Cairn O'Mount, south of Aberdeen on the Banchory to Fettercairn Road. He remembered passing police cars. He had no recollection of any street incident in Aberdeen in relation to any other car. He did not think he would make it to Cairn O'Mount because of the presence of police cars and so he drove off the road where he was and into a field. The moon was high and there was good light. He had put the body of the deceased on the bonnet of the car but realised that she would be seen by occupants of a farmhouse nearby. So he placed her on the ground. He then walked to the edge of the cliff intending to commit suicide. But voices in his head persuaded him not to do so. He stayed on a beach all night, watched the sunrise and walked to St Cyrus. Senior counsel said that at present her position was that there had been no sexual contact by the respondent with the deceased either before or after death. However, she had only that day seen Crown precognitions which suggested that that might not be the case and she therefore needed time to consider that matter. The respondent attended the police station voluntarily and when interviewed by the police he had immediately told them that he had strangled the deceased. At no stage did he deny that. At the end of his interview he said that he did not mean to do it. Senior counsel concluded her remarks by saying that in times to come it might be of some comfort to the deceased's family to know that the respondent was not without remorse but was psychiatrically damaged. Finally, she confirmed that she supported the recommendations made by the two psychiatrists who had given evidence.

[6] The case called before the sentencing judge again on 11 January 2006 in the High Court at Edinburgh. He had the benefit of a report dated 16 December 2005 from Dr Rajan Darjee, Consultant Forensic Psychiatrist at the State Hospital. Having heard counsel and in light of the recommendation in that report he extended the interim compulsion order for a further period of 12 weeks. The hospital specified was again the State Hospital. The case called again before him on 4 April 2006 in the High Court at Kilmarnock. On that occasion he had the benefit of a report from Dr Darjee dated 29 March 2006. Having heard counsel and in light of the recommendation in the report he further extended the interim compulsion order for a period of 12 weeks. He again specified the hospital in question as the State Hospital.

[7] The case called before him once more on 27 June 2006 in the High Court at Edinburgh. On that occasion he had the benefit of a further report from Dr Darjee dated 26 June 2006. Dr Darjee had been the respondent's responsible medical officer at the State Hospital since late October 2005. In that capacity he had been responsible for his care and treatment. By 26 June 2006 he had come to the conclusion that there was no evidence that the respondent was suffering from mental disorder at that time. He therefore had no psychiatric recommendation to make at that stage. In this situation senior counsel for the respondent, who had only just received Dr Darjee's latest report, asked the sentencing judge to continue the case for sentence and to remand the respondent in custody meantime. That motion was consented to by the Advocate depute and he granted it.

[8] On 14 July 2006 in the High Court at Edinburgh the case called before the sentencing judge once again. Senior counsel for the respondent had by that time had an opportunity to consider Dr Darjee's report of 26 June 2006. She stated that no further issues were raised in that report which she required more time to consider. She asked that a Social Enquiry Report together with risk assessment be obtained and that the case be continued for that purpose. He granted that motion and ordered the report and assessment.

[9] On 3 August 2006 in the High Court at Edinburgh the case called before the sentencing judge once more. The Social Enquiry Report and risk assessment were now available. Senior counsel for the respondent referred to it. She explained that the respondent and his girlfriend had now separated, apparently permanently. She reminded him that the respondent showed remorse and some insight into the effect of what he had done. Her information from the Crown was that samples taken from the respondent at the time of his arrest had shown no signs of drug use. Counsel said that what had caused this offence to be committed was therefore a mystery. In the narrative which had been given by the Advocate depute at the first hearing on 19 October 2005 reference had been made to the other charges which had been on the indictment but to which the respondent's pleas of not guilty had been accepted, but this had been done just as part of the whole background. In relation to what was said about the pathology towards the end of the narrative counsel said that Professor Busuttil (instructed on behalf of the defence) had indicated that the sexual aspects of that were no more than a possibility. In any event, said counsel, any such conduct did not form part of the charge to which the respondent had pled guilty. Counsel explained that the respondent's plea of guilty had not been offered until shortly before the preliminary hearing on 19 October 2005 because the psychiatric support for that had not been available until then.

[10] When passing sentence, the sentencing judge made the following remarks, which we think appropriate to reproduce in full:

"Joseph Harrison, you pled guilty to the culpable homicide of Susan Third.

That plea was offered and accepted on the basis of diminished responsibility. The evidence which I heard when the case first came before me last October in Aberdeen was to the effect that you were suffering from mental disorder and at the time of the crime were psychotic.

Following a period of examination and treatment in the State Hospital, it was concluded by the doctor treating you that by June of this year you were no longer suffering from mental disorder.

In that situation I am able now to pass sentence in the normal way, but I must make it plain that I am passing sentence today for the crime to which you pled guilty and on the basis of diminished responsibility, as was accepted by the Crown last October.

The crime of culpable homicide is, of course, always a very serious matter, because someone has been killed. The degree of culpability, however, can vary enormously from one case to another, depending on all the circumstances.

Nothing that I can do, of course, can bring Susan Third back to life. Her death is a tragedy for all concerned, particularly her family and friends. And their sense of loss is a continuing one, which I fully recognise. The sentence that I pass must not be seen as in any way putting some kind of value on her life. What I have to do is to pass a sentence which is appropriate in all the circumstances of the case, having regard of course to what happened but also to your situation at the time. The sentence must also be consistent with sentences in other cases of this kind which have been approved by the Court of Appeal.

In this case I have taken full account of the circumstances in which this offence occurred insofar as they are known. Insofar as I was also given background information, I take account of it for the purpose of filling in the background and giving me a fuller picture of this very unusual case. However, insofar as there was any suggestion that you might have committed other criminal conduct at or about this time, that can form no part of the matter for which I am passing sentence. I can only pass sentence for the offence to which you pled guilty.

You have four previous convictions but, although there was one for assault on indictment, they are relatively minor compared with this offence and none of them resulted in a custodial sentence.

I have, of course, carefully considered the medical evidence and reports which have been provided and I have carefully considered the social enquiry report. I have also taken into account all that Mrs Richards has said on your behalf both today and on the previous occasions when the case called before me. I also take into account the fact that you accepted responsibility for what you did and pled guilty to this offence. That saved the public expense of a trial and further trauma for the family and friends of the deceased. For that the law provides that you are entitled to a discount.

Having regard to what is said in the social enquiry report, it seems to me that an extended sentence would be appropriate. That is to protect the public from any risk that you may present but it is also meant to be of benefit to you when you are eventually released from custody.

Having regard to all the circumstances in this difficult and anxious case I sentence you to an extended sentence of nine years imprisonment. The custodial part of that sentence will be six years and the extension part three years.

If you had not pled guilty, the custodial part would have been eight years, which would have made a total of eleven years.

The sentence will take effect from 28 February 2005 to take account of the period you have already spent in custody in relation to this matter."

[11] In the Note of Appeal, after a narrative of the history of the case and a brief account of the circumstances of the offence, the Crown state:

"5. The only explanation before the court for the offence was [the respondent's] mental state at the time of the offence. No full risk assessment was obtained, but the social enquiry report assessed him as being at medium risk of re-offending heightened by an absence of any understanding on his part of why he committed the crime. His risk of causing harm to others if he re-offended was assessed as high, but the respondent had difficulty in accepting this. He had previously been convicted of an offence involving domestic violence, and continued to show little insight into the causes of his violent behaviour.

6. The psychiatric report of 26 June 2006 concludes that 'it is difficult to

give any informed opinion as to the risk of further serious offending'. It envisages the possibility, albeit unlikely, that the respondent's mental state may deteriorate if he returns to prison.

7. In all the circumstances the sentence imposed does not reflect the

gravity of the offence and does not provide sufficient protection for members of the public."

In his report to this court, the sentencing judge comments on these grounds of appeal. He states that this was a case of culpable homicide on the basis of diminished responsibility, and that it seemed to him to be necessary when considering the gravity of the offence to have regard to the extent to which the respondent's responsibility was diminished. Dr. Thomson had expressed the opinion that there was evidence that the respondent was suffering from a major process mental illness, possibly schizophrenia, and that at the time of the offence he had an abnormality of mind which substantially impaired his ability to determine and control his actions. It was on this basis that she expressed the view that the respondent's responsibility for the offence was diminished. This opinion was confirmed in her oral evidence, in which she further explained that the respondent was psychotic at the time of the offence. In her report dated 19 September 2005 Dr. Willox expressed the opinion that on the evening of the offence the respondent was suffering from psychosis. She was also of the view that he was suffering from an abnormality of mind which substantially impaired his ability to determine and control these acts. Dr. Willox confirmed these expressions of opinion in her oral evidence. This evidence was not in dispute. Both parties asked the sentencing judge to accept it, and he did. In so far it might be thought that by the time of his report of 26 June 2006 Dr. Darjee did not wholly agree with it, it was not suggested by either the Crown or the defence that the sentencing judge should not now accept it or in some way hold it to be modified. He therefore, he reports, passed sentence on the basis that the respondent's responsibility for the offence was substantially diminished, as Dr. Thomson and Dr. Willox had indicated. In his report the sentencing judge also states:

"In relation to protection for members of the public, it was, of course, with that in mind that I imposed an extended sentence with an extension period of three years. It should also be noted that if, as stated by Dr Darjee towards the end of his report of 26 June 2006, the respondent's mental state deteriorates in prison (which would no doubt give rise to concern as to the risk he might present to the public) then, if the situation warranted it, he could be returned to the State Hospital. In that situation, it seems to me that the protection of the public has been appropriately taken into account."

[12] When the appeal first came before us on 26 January 2007, the Advocate depute submitted that the sentencing judge ought to have obtained further and more detailed information, especially with regard to the risk posed by the respondent to members of the public, before passing sentence. After some discussion, we decided to continue the appeal to a date to be afterwards fixed, and directed that a further psychiatric report be prepared on the respondent by Dr. Thomson, having particular regard to (1) the current mental health of the respondent, with an assessment of such risk as he might present to the public in the future, (2) the circumstances of the crime and (3) the serious degree of diminished responsibility from which he was suffering at that time. When the appeal came before us again on 1 November 2007, a report by Dr. Thomson dated 30 July 2007 was available. By the date of this report Dr. Thomson was Medical Director and Reader in Forensic Psychiatry at the State Hospital. We are grateful to her for the care with which she has prepared a notably thorough report.

[13] Dr. Thomson had access to all previous reports on and records relating to the respondent. When he was sentenced, there was no recommendation for a psychiatric disposal before the court, so the respondent was sent to prison. After an initial period of a few months in HMP, Edinburgh, he was transferred on 15 December 2006 to HMP, Peterhead and has remained there since. It was there that Dr. Thomson interviewed him. In her report Dr. Thomson discussed the respondent's background history, sexual history, family history, past medical history, past psychiatric history, drug and alcohol history, forensic history (under reference to his previous convictions), the index offence, his examination in the State Hospital on 18 May 2005, supplementary information derived from various sources, progress within the State Hospital, progress within the Scottish Prison Service, her interview with him, her examination of him, and his current medication (a cream for dermatitis). In a lengthy passage she set out her assessment of risk of harm to others, using the Historical Clinical Risk 20 Protocol (HCR-20; Webster et al, 1997), a guide to forming a structured clinical judgment regarding future risk of committing a violent act. This involved investigation of factors which were known to correlate with violent recidivism. Dr. Thomson said that although this was a useful guide to making clinical judgment, no risk assessment could be completely reliable. The tool contained 20 items, ten of which were based upon historical factors, five based upon current clinical factors and five based upon future risk management factors. Her report concluded with the following expression of opinion:

"Opinion

1. Mr Harrison described and displayed some psycho-pathological

symptoms and signs during his initial stay within the State Hospital. These included episodes of hearing voices and laughter, bizarre statement about aliens; a repeated sensation at the age 17 of something moving around in his chest which he described as disgusting; the belief that he was able to change his facial appearance by staring into mirrors; complaints of fuzziness in his head and muddled thoughts, particularly in the year leading up to the index offence; evidence of disordered thinking in some of his speech patterns at interview and marked incongruous emotional responses; episodes of withdrawal; and intrusive experiences such as hearing music. His partner, mother and sister all independently confirmed unusual behaviour by Mr Harrison in the period leading up to the index offence.

2. Given Mr Harrison's settled state after his trial, his antipsychotic

medication was discontinued. At the time of interview he had been free of any antipsychotic medication for over 14 months and had not become overtly psychotic. He does suffer from anxiety but this is improving and he feels more settled and safe within HMP Peterhead. 80% of people with schizophrenia will relapse within a 2 year period if untreated. It is unlikely that Mr Harrison has schizophrenia. At the present time there is no evidence that Mr Harrison has schizophrenia. At the present time there is no evidence to suggest that Mr Harrison suffers from a major mental illness.

3. Mr Harrison has a significant history of drug abuse, in particular of

Amphetamine and Ecstasy. He denied using either since the summer of 2004 but admits to using Cannabis occasionally. His sister believed that he had used Cannabis once on the day prior to the index offence. Mr Harrison thought that this was not the case and that he had used it around Christmas 2004. Cannabis can lead to increased persecutory ideation. Even if he had used Cannabis near to the index offence, this level of drug use is unlikely to have caused a full blown drug induced psychosis. Mr Harrison scored in the low level of difficulties on the drug abuse screen test (DAST-20) when considering difficulties with drug abuse for the 12 months prior to his detention according to self report.

4. Mr Harrison has a conviction for drink driving. Prior to the index

offence he was drinking up to one bottle of Buckfast wine once per week on a Saturday night. This was confirmed by his partner. He describes silly behaviour at times following the consumption of alcohol. Mr Harrison scored in the low level of dependence on alcohol for the 12 months prior to his detention according to self report on the alcohol dependence scale (ADF).

5. It is the case that Mr Harrison has clear difficulties in coping with

stress, particularly following the birth of children. There is a clear pattern of him driving away at times of stress and being unable to remember what happened. This has been described on four occasions.

i) In 2000 after the birth of Mr Harrison's son, [D]. At this

time he found himself on the M6 in England. He was taking amphetamine daily at this time but he denies any use of drugs prior to the journey although he took some alcohol.

ii) In 2003 he disappeared for 30 hours after the birth of [T].

He denies any use of alcohol or drugs on this occasion. His substance misuse around this time is reported as reduced to weekend use only.

iii) One week prior to his index offence he drove to Glasgow and

denies any recollection of this. His girlfriend reports that he was agitated and shaking prior to driving away. She was sufficiently concerned that she made an appointment for Mr Harrison with his general practitioner following this event. The use of substances is denied on this occasion.

iv) On the night of the index offence he drove to Aberdeen and

denies any recollection of the drive from Inverbervie to Aberdeen until he met his victim. At the time of the alleged offence Mr Harrison admits to buying and therefore may have drunk up to one bottle of Buckfast wine during the period in question. I understand from evidence from the police that he may have bought 2 bottles of Buckfast wine although he denies any recollection of this.

He denies any use of drugs on this day although his sister reports that he may have taken Cannabis on the previous day.

Any use of substances is likely to contribute to impulsive actions and loss of memory but this is denied on two of the above occasions. It may be that at times of stress Mr Harrison has a disturbance or alteration in the normally integrative functions of identity, memory or consciousness, known as a dissociative state. In a dissociative fugue:

i. there must be no evidence of a physical disorder that can explain the characteristic symptoms of this disorder (although physical disorders may be present that give rise to other symptoms).

ii. there are convincing associations in time between the onset of symptoms of the disorder and stressful events, problems and needs.

iii. the individual undertakes an unexpected yet organised journey away from home from the ordinary places of work and social activities, during which self care is largely maintained.

iv. there is amnesia, either partial or complete, for the journey. This amnesia is too extensive and persistent to be explained by ordinary forgetfulness (although its depth and extent may vary from one assessment to the next) or by intentional simulation. (World Health Organisation, International Classification of Diseases - 10 Classification of Mental and Behavioural Disorders).

Mr Harrison has a number of pre-disposing factors towards the development of psychiatric symptoms including a family history of depression, anxiety, psychotic symptoms and alcohol misuse. In addition there are clear precipitating factors to the development of his anxiety including parental separation, parental ill health, working on the family farm due to his father's illness, a disruptive relationship and the birth of children. Perpetuating factors at the time of the index offence included his girlfriend's pregnancy and separation from his two children.

6. There is no evidence that Mr Harrison has any form of paraphilia.

Detailed consideration was given during Mr Harrison's assessment within the State Hospital to whether there was any sexual motivation to his index offence. Mr Harrison did remove some of his victim's clothing but there is no definitive evidence a sexual assault took place. Mr Harrison's description of his own sexual relationships and fantasies are not abnormal. Mr Harrison denies any recollection of sexual arousal at the time of the index offence.

7. I have included within my report a structured clinical risk assessment.

This highlights the historical risk facts of previous violence, problematic relationship, substance use problems and major mental illness. The clinical items are relevant to the period around his interview with me in February 2007 and were largely negative with the exception of possible impulsivity. Comments on risk items are difficult because these are limited within the prison setting but would be likely to increase and therefore need reassessed at the time of any release. Mr Harrison would clearly require a package of care that addressed the issues of substance misuse, observed him for the development of any symptoms or signs of major mental illness, provided personal support, and which moderated the effects of any stressors such as new relationships, pregnancy or births of children or an excessive workload.

8. You asked me to address whether a psychological opinion is necessary.

I have provided a detailed risk assessment. You may wish to have a further assessment of his personality carried out. He had a psychological assessment within the State Hospital and is of average intellectual functioning."

With this report before the court, neither party invited us to order any further report. The discussion therefore centred on Dr. Thomson's report and the expressions of opinion contained therein, which we have seen fit to quote in full above.

[14] The Advocate depute submitted that, having regard to the factors Dr. Thomson identified as being clearly present, the appropriate conclusion was that the risk presented by the respondent was high, particularly in relationship situations, and where drug misuse and alcohol were involved. The overall period selected by the sentencing judge was unduly lenient. The crime involved the strangulation, manually and by ligature, of a complete stranger, in circumstances where, despite extensive psychiatric assessment and a number of interviews, the reasons for the offence remained completely unexplained. This went both to the gravity of the offence and the protection of the public. Having regard to the nature of the evidence, the discount allowed by the sentencing judge to reflect the plea of guilty was excessive. In any event, the sentencing judge had misdirected himself in his approach to the protection of the public. If he had decided that the respondent required to be either in custody or under supervision for a total period of 11 years, irrespective of any discount which it was appropriate to allow in the period of custody to take account of the respondent's plea of guilty, the total length of the sentence ought to have remained at 11 years.

[15] In response to these submissions, senior counsel for the respondent referred in the first place to the observations made in McGowan v HM Advocate 2005 SCCR 497, where at paragraphs [15] to [17] the court observed inter alia: (1) that the imposition of an extended term should not affect the length of the custodial term; (2) that for the purposes of discounting in respect of a plea of guilty no allowance should be made in respect of an extension period or any element of a custodial term which is for the protection of the public; and (3) that a risk assessment represents advice to the court for which the author requires expertise in the techniques devised for the purpose, that it is not appropriate for the court to reject the assessment in favour of some technical exercise of its own, or to modify the terms in which that assessment is expressed, though it is a matter for the court to determine what weight to attach to it, and ultimately it is for the court to decide, on the basis of the whole material before it, whether the period for which the offender would, apart from section 110A of the 1995 Act, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm and, if not so adequate, what length of extension period is, subject to the applicable maximum, appropriate. Counsel submitted that it was inappropriate for the advocate depute to invite the court to conclude from Dr. Thomson's report that the respondent represented a high risk. All the risk factors which it was relevant to take into account were before the sentencing judge. The mere fact that the respondent could not explain satisfactorily why he committed the offence might be related to the reason why he committed it in the first place, that is to say that he was mentally unwell. The sentencing judge's report was highly comprehensive, and it was clear that he had taken all relevant factors into account. The base figure selected by him before discount was consistent with that in R B v HM Advocate 2004 SCCR 443. If there were cogent reasons for allowing a discount, there required to be careful consideration before an appellate court would interfere.

[16] We can well understand why the sentencing judge described this as a difficult and anxious case. The killing of the deceased, a vulnerable young woman, was done in a manner, and in circumstances, which would appropriately be taken into account in determining that part of the sentence which adequately reflected the need for punishment of the respondent. What required to be weighed against that, however, was the fact that his plea of not guilty of murder but guilty of culpable homicide was appropriately accepted by the Crown because he was indisputably suffering from significantly diminished responsibility at the time of the offence. Punishment requires to take account not only of the gravity of the acts of the offender, but also of the extent to which he was criminally responsible when he committed them. The sentencing judge clearly took account of all material before him which was relevant to the exercise which he required to undertake, of balancing these competing considerations. While different sentencers might, in an anxious case such as this, reach different conclusions as to the appropriate disposal, we are satisfied that the period of eight years selected by the sentencing judge as his starting point for the custodial part of the sentence, as punishment of the respondent, lay within the range available to him in the exercise of his discretion, and we can see no reason to fault it. The Crown's approach to this appeal appears to us to fail to recognise the necessary consequences of the Crown's own earlier acceptance of a plea of guilty of culpable homicide on the basis of the respondent's significantly diminished responsibility.

[17] Although the Note of Appeal is not specifically directed to the discount from the custodial part of the sentence which the sentencing judge allowed to reflect the respondent's plea of guilty, we think it appropriate to make a brief comment about it. The plea of guilty was tendered and accepted at a continued preliminary hearing, after extensive psychiatric investigation of the respondent's mental state at the time of the offence and subsequently. It reflected his contrition, and spared all concerned the ordeal of a distressing trial. It was of utilitarian value, in saving the resources and avoiding the inconvenience associated with a trial. With these considerations in mind, we can see no basis for criticising the discount of 25% allowed by the sentencing judge, which appears to us to have been entirely appropriate in the circumstances.

[18] There remains for consideration the question of the protection of the public from serious harm from the respondent. The sentencing judge gave careful consideration to this, and determined on an extended sentence under section 210A of the 1995 Act, the extension period selected by him being one of three years. Two points require to be made at this stage. The first is that it was open to the sentencing judge to impose a discretionary life sentence. There are cases where this is the appropriate disposal for the protection of the public, even now when extended sentences are available: see Kelly v HM Advocate 2000 SCCR 815. But it was not suggested to us that this is such a case, or that the sentencing judge misdirected himself in deciding to impose a determinate extended sentence. The only question is as to its overall length. The second point is that when the respondent is released on licence, the period of licence will precede the extension period, and during the aggregate of these periods the respondent will be subject to such degree of supervision as may be thought necessary in light of his progress in custody and after his release. If he were released on licence, as he would be entitled to be, after serving four years of the six-year custodial part, he would be subject to this degree of supervision for a total of five years. There can be no doubt that the sentencing judge had this in mind in determining upon the extension period. Following the guidance in McGowan v HM Advocate, he had to proceed on the basis of the professional advice available to him, as indeed he was requested to do by the parties. Human behaviour, particularly of such an extreme kind as occurred here, is notoriously difficult to predict. But there are nevertheless predictive tools available to experts such as those whose reports and evidence were available to the sentencing judge, and also to this Court, supplemented in our case by the further report from Dr Thomson which we requested. We are not persuaded by consideration of these that the respondent represents, so far as can be predicted, such a high degree of risk to the public that the sentencing judge ought to have selected a longer extension period. On the contrary, the period selected by him appears to us to strike the appropriate balance, and we can see no reason to interfere with the exercise of his discretion.

[19] On the whole matter, we are satisfied that the sentence imposed on the respondent cannot be described as unduly lenient, and for the reasons given in this Opinion this Crown appeal is refused.