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APPEAL AGAINST SENTENCE BY DAVID CLARK AGAINST HER MAJESTY'S ADVOCATE

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lady Paton

Lord Drummond Young

 

 

[2014] HCJAC 108

HCA/2014-001778-XC

 

OPINION OF THE COURT

 

delivered by LADY PATON

 

in

 

APPEAL AGAINST SENTENCE

 

by

 

DAVID CLARK

 

Appellant;

 

against

 

HER MAJESTY’S ADVOCATE

 

Respondent:

 

_____________

 

Appellant:  Jackson QC;  Paterson Bell

Respondent:  A Edwards AD;  Crown Agent

 

16 September 2014

 

[1]        We accept and endorse everything said by the sentencing judge.  The inescapable fact is that the appellant took a life.  He stabbed and caused the death of his nephew, Andrew Clark, aged 45.  The gravity of such an offence and its consequences cannot be underestimated.  Andrew Clark’s family, particularly his mother, sister and brother, have been devastated by his death        

[2]        Nevertheless it is our view that greater weight should have been given to some of the circumstances surrounding this terrible death.

[3]        First, while doctors, nurses, paramedics and some members of the public may appreciate that a stab wound to leg can cause a person to bleed to death within a very short time, that is not something known to everybody.  In this particular case three adults, that is the appellant, his nephew and his girlfriend, did not appear to appreciate that the leg wound might be life‑threatening.  Mr Jackson confirmed that the pathologist gave evidence to that effect.  We understand that Andrew Clark stopped the bleeding with some sort of makeshift dressing and went to bed.  Everybody involved thought that he would be alright.  They were of course terribly mistaken:  but that was what they all thought.

[4]        Secondly, as was pointed out in Mr Jackson’s submission, the appellant did not come armed with a knife.  That he picked up a knife and used it was undoubtedly bad, but that was at least a spontaneous act in the middle of a struggle, and is, therefore, of a different order from a pre‑meditated attack with a knife brought as a personal weapon.  We note also that there was only one single blow.

[5]        Thirdly, we have had drawn to our attention the fact that the appellant’s record for previous convictions, while including offences of assault and assault to severe injury, was such that he had not offended for a period of about 17 years.

[6]        Fourthly, the appellant is noted in the criminal justice social work report as being very remorseful, and struggling to come to terms with the fact that what he did ended his nephew’s life.

[7]        As stated at the outset, these factors should in our view have been given greater weight.  We therefore consider that the starting‑point in this particular case was too high.  In our view, a starting‑point of 10 years would be appropriate.  Applying the same discount of one third with the allowance of five months for being on remand, the sentence should be six years, three months.

[8]        So we shall quash the existing sentence, and substitute therefor six years, three months.

 

 

 

 

 

 

 

 

HJD