Frazer Angus Neil v. Her Majesty’s Advocate [2019] HCJAC 70

Note of appeal against sentence:- On 1 November 2018, a Glasgow High Court, the appellant was convicted after trial of a charge of murder. On 29 November 2018, following the obtaining of a Criminal Justice Social Work Report and a psychiatric report, the appellant was sentenced to life imprisonment with a punishment part of 19 years. Leave to appeal was sought in relation to both conviction and sentence, however, leave was only granted in respect of sentence. At the trial the Crown case was that it was a premeditated killing of the appellant’s former partner by the use of a ligature to strangle her and that he had deliberately intended to kill her. It was the appellant’s position at trial that he could not remember what had happened, however, the death may have occurred as a result of erotic asphyxiation during the course of consensual sexual intercourse and whilst he acted in the face of obvious dangers and must have been reckless in causing death the jury were invited to convict him of culpable homicide. It was submitted on behalf of the appellant that the punishment part selected was excessive having regard to a number of factors:- (1) the jury had made various deletions to the charge including the averment that the appellant had raped the deceased contrary to section 1 of the Sexual Offences (Scotland) Act 2009; (2) the appellant had been unable to cope following his rejection by the deceased when she ended their 5 year relationship; (3) the appellant was aged 25 years at the time of sentencing and had no previous convictions and there was no background of domestic violence; (4) the appellant had expressed remorse and had attempted to resuscitate the deceased; (5) the appellant had telephoned the police and accepted responsibility for the death; (6) the appellant recognised the devastating impact his conduct had on the deceased’s family and friends; and (7) the CJSWR provided a positive picture of the appellant and the psychiatric report indicated that he had traits of Dissocial Personality Disorder with some traits of a Narcissistic Personality Disorder and he was considered to be at high risk of suicide. It was submitted on behalf of the appellant, under reference to other cases of murder, in particular HMA v Boyle 2010 SCCR 103 that the punishment part selected was excessive. On behalf of the Crown it was submitted that, in light of the pathology in particular, it could not be said that a punishment part of 19 years was excessive. Here the court refused the appeal. The court considered that examining other cases of murder and the punishment parts imposed in them is of little assistance. The court reiterated what was said at paragraph 17 in Boyle, namely, the discretion open to sentencers when examining the particular circumstances of a case. The court considered that the particular circumstances of the case, in particular, the premediated nature of the attack and the level of force used by the appellant over a prolonged period were such that it could not be said that a punishment part of 19 years was excessive.