Lady Cosgrove

Appellant: Shead; Drummond Miller

Respondent: G. Henderson, A.D.; Crown Agent

1 February 2006

[1] The appellant, who was born on 5 June 1988, pled guilty to culpable homicide at a preliminary hearing in the High Court of Justiciary at Edinburgh on 8 April 2005. He was originally indicted on a charge of murder but his plea to culpable homicide in the following terms was accepted by the Crown.

"On 9 October 2004 at Kilbowie Road, Cumbernauld, you did assault Frank Learmonth, 74B, 5th Floor, Ruth House, Allanfauld Road, Seafar, Cumbernauld, and strike him on the head with a sword whereby he was so severely injured that he died later that day at the Southern General Hospital, Glasgow, and you did kill him."

[2] The appellant appeared as a first offender and sentence was deferred for the preparation of a social enquiry report. At the time the crime was committed he was 16 years of age On 20 May 2005 he was sentenced to 6 years detention from that date. In sentencing the appellant the trial judge said that had he been convicted after trial the sentence would have been in the region of 8 years detention.

[3] The fatal incident took place in Kilbowie Road, Cumbernauld, outside licensed premises known as Jumping Jax, a short distance from Sandyknowes Road, where the appellant lived. The deceased, Frank Learmonth, was 25 years of age and lived in Cumbernauld with his girlfriend of 3 years and their 10 month old son.

[4] During the evening of Friday 8 October 2004 the appellant was in the company of his older brother, Ross Stevenson, aged 18, and the deceased, with whom they were both friendly. They had been in the company of other young men of similar ages. The incident which led to the deceased's death occurred after a group of youths, which included the appellant, Ross Stevenson and the deceased, from the South Carbrain area of Cumbernauld, confronted a group of youths from the Abronhill area of the town. The trial judge was informed that there had been a history of bad feeling between groups of youths from these two areas over many years, and that gang fights had regularly taken place.

[5] During the evening approximately 80 people from the Abronhill area were attending a private 18th birthday party which was being held in the lounge bar of Jumping Jax. Some members of the group from South Carbrain were in the public bar premises. The appellant was not one of them. At about 11.45 p.m. staff in the licensed premises asked patrons in the public bar and lounge bar to leave the premises. This resulted in a large number of young people congregating outside the building. Youths from the two areas came into contact with each other and several fights broke out between members of the rival groups. While this fighting was taking place, the father of the person whose 18th birthday had been celebrated heard a young male shouting "Go and get the sword". Subsequent police investigations revealed that the young male was Ross Stevenson, the appellant's older brother, shouting to the appellant to retrieve a sword from the family home. The appellant then ran off and, shortly thereafter, returned to Kilbowie Road carrying the sword. He gave the sword to his brother who swung it from side to side without striking anybody with it. The appellant and his brother then noticed the deceased and a man from Abronhill fighting in the middle of the road. At this point the appellant took the sword from his brother and ran towards the deceased and the other man who formed one of a number of small groups involved in fights. The appellant was holding the sword in front of him.

[6] The ensuing events were witnessed by a Crown witness, Paul Omand, who was on friendly terms with both the appellant and the deceased and who, according to the Crown, appeared to have been the only person who actually witnessed the fatal incident. He saw the appellant standing in the middle of the road holding the sword in both hands down by his side. He then saw him lift the sword above his head. At this point the man who had been fighting with the deceased turned round and headed towards him. The man appeared to be about to attack the appellant, who was, at that stage, about 3 metres away from him and the deceased. The appellant was observed to swing the sword from above his head down in front of him. As he did so the blade of the sword came apart from the handle and travelled through the air striking the deceased in the right eye.

[7] The sword was in a defective condition in that the blade was not securely fixed into the handle. This defect was known to the appellant and his brother prior to the fatal incident. The dimensions of the sword were such that when the appellant swung it, it would not have made contact with the other man had it remained intact. Even although the man was moving towards the appellant, at the point the sword was swung downwards, he was not near enough to have been struck, deliberately or accidentally. Nor would the deceased have been struck had the blade of the sword not become detached from the handle. .

[8] After the arrival of the police and an ambulance the deceased was taken to Glasgow Royal Infirmary where a decision was taken to move him to the Southern General Hospital for neurosurgery. The blade of the sword had penetrated approximately 8 inches inside his head through his right eye. Approximately 18 inches of the blade remained outside his head. The sword was removed by a neurosurgeon at the Southern General Hospital but no medical intervention could have saved the life of the deceased and life was pronounced extinct later that day.

[9] The appellant was interviewed as a witness by police officers on 10 October 2004. Whilst giving a witness statement he became upset and began to divulge details of what had happened. He was then detained and interviewed under caution. He said he could have been responsible for what happened to the deceased but had not meant to do it.

[10] Counsel for the appellant addressed the trial judge in mitigation and stressed that there was no hostility between the appellant and the deceased. The appellant had not been in the public house premises, but had become aware that his brother was involved in fighting outside. He had been told by his brother to go and get the sword. After he had retrieved it and returned to the locus he swung it as a threatening gesture to frighten off two men from Abronhill, one of whom had been the man fighting with the deceased. The appellant's recollection was that it was on the upswing that the blade had come apart from the handle. He had no intention of harming the deceased. After the blade had left the handle he heard that something had happened to the deceased. He panicked and ran away. He had not been under the influence of drink at the time. He been very much affected by the death of the deceased. His remorse was genuine.

[11] The social enquiry report indicated that the appellant's parents had separated during his childhood and both had subsequently experienced difficulty in controlling his behaviour. He had been placed on a statutory supervision requirement under the Children (Scotland) Act 1995. He was assessed as a high risk of reoffending.

[12] In presenting the appeal Mr. Shead, for the appellant, submitted that the circumstances of the deceased's death were highly unusual. The catastrophic result had not been intended, although the appellant had been aware that the sword was generally in poor condition he was not aware of the particular defect which had given rise to the deceased's death. The starting point of 8 years was too high for a case in which the consequences were entirely unintended. It had been impracticable, in view of the circumstances and the appellant's age, to proceed by way of letter under section 76 of the Criminal Procedure (Scotland) Act 1995.

[13] After careful consideration, we have come to the view that in the circumstances of this case, the sentence imposed by the trial judge cannot be said to be excessive. The appellant had been aware of the fighting outside the licensed premises. He had gone to his home to fetch the sword and returned with it to the scene of the fighting. The sword was clearly a dangerous weapon. Its defective condition of which the appellant was aware, created additional and unpredictable dangers. Although the particular use to which he put it was not intended to injure any individual, he was nevertheless using the weapon in a confused confrontational situation. In our view the degree of culpability was high.

[14] It is clear that the trial judge took as a starting point in the determination of the appropriate sentence the period of 8 years. Having regard to the degree of culpability involved we consider that period to be within the appropriate range. To that period he applied a discount of 2 years to take account of the appellant's early plea of guilty and his expression of remorse. We did not understand the discount applied by the trial judge to be challenged. We accordingly refuse the appeal.