SENTENCING STATEMENTS

On Sentencing Judge Andrew Miller made the following remarks in court:

"Rodney Shaw, the jury at your trial found you guilty of the culpable homicide of David McGuiness, by assaulting him on 26 September 2023 and thereby causing his death from a cardiac arrest due to a serious heart condition which he had.

According to the charge of which you were convicted, you assaulted Mr McGuiness by repeatedly punching him on the head and body, pursuing him, seizing him by the body, pushing, pulling and throwing him towards a vehicle. The jury deleted an allegation that you caused his head to strike a vehicle.

Culpable homicide is a crime which covers a wide range of situations in which the death of a person is caused by a criminal act. Although many cases of culpable homicide result in a custodial sentence, a custodial sentence is not inevitable in every case and I have decided that this is an exceptional case in which the public interest does not demand a custodial sentence.

According to the evidence led at your trial, you and Mr McGuiness both worked in the roofing industry. Mr McGuiness believed that you owed him money for work which he had carried out on a roofing job in which you had both been involved over a year prior to his death. You had told him that, if he was owed money, it was owed not by you but by a third party who had also been involved in that work. That issue was not explored in detail in the evidence led at your trial and the jury was not asked to decide whether you did in fact owe Mr McGuiness any money.

However, the evidence indicated that David McGuiness felt aggrieved at this state of affairs and it was a matter of agreement at trial that, in April and May 2022, he sent WhatsApp messages to another man expressing this sense of grievance and also expressing feelings of hostility towards you which he suggested that he intended to act upon when he next saw you.

Mr McGuiness did see you, within the car park of a builders’ merchant in Stonehaven, on the morning of 26 September 2023. Having realised that you were within your van there, Mr McGuiness deliberately moved his pickup truck into a position immediately behind your van so as to block your van in its parking bay.

Video images showed that Mr McGuiness then then got out of his pickup truck,  approached the driver’s door of your van, where you were sitting, and remonstrated with you verbally through the driver’s door window about the money he believed that he was owed, in the course of which he may have sworn at you. Bystanders who witnessed this early part of the incident characterised Mr McGuiness’s behaviour towards you as being aggressive. The video images showed that you partially lowered your window and either pushed or punched Mr McGuiness once to the chest, from your seated position within your van.

My assessment of the video images was that, as your senior counsel suggested at the trial, Mr McGuiness then took hold of the handle of the driver’s door of your van and attempted unsuccessfully to pull the door open. He then walked a few steps back towards his own pickup truck before turning and walking back to the driver’s door of your van, by which time you were in the process of emerging from that door.  

This was a point in the sequence of events when you each had an opportunity to avoid what happened next. If Mr McGuiness had continued walking away, or if you had remained in your van instead of getting out when you did, there would have been no further physical contact between you.

However, a physical confrontation did then take place between you and Mr McGuiness, some of which was shown on the video images played during your trial. Although the evidence indicated that you were both involved in holding and wrestling with each other and that Mr McGuiness may also have thrown punches, the jury was satisfied that you assaulted Mr McGuiness during this part of the incident. It was a matter of agreement that the entire incident lasted 48 seconds, at the end of which Mr McGuiness suffered a fatal cardiac arrest.

No weapons were involved in the assault committed by you and in comparison with many assaults which come before the courts, this assault did not involve the use of significant force. The medical evidence led at your trial indicated that Mr McGuiness was not found to have any injuries as a result of the assault committed by you, and no injury was libelled in the indictment as having been caused to him by the assault, although in the aftermath of this incident you were found to have some minor head injuries.

The evidence indicated that Mr McGuiness’s death was an outcome which was not intended by you and which was not contemplated or anticipated by you or by anyone who witnessed this incident. In contrast to many other cases of culpable homicide, there was no evidence that Mr McGuiness’s death was brought about by any physical injury inflicted by you or by any particular blow struck by you during this incident.

Although the jury rejected your defence of self-defence and found that you assaulted David McGuiness it seems likely that, but for the tragic and untimely death of Mr McGuiness from a cardiac arrest, the assault committed by you, if it had resulted in any criminal proceedings, would not have been tried before a jury, either in the high court or the sheriff court.  

The jury heard expert medical evidence that, although he was a young man, Mr McGuiness had severe heart disease which could have resulted in his death at any time as a result of any sudden physical or emotional stress. It was accepted by the crown at your trial that Mr McGuiness’s heart condition was unknown to you or to him.

Although the jury was satisfied on the evidence that the assault committed by you caused David McGuiness’s death, it does not follow that the assault was the sole or even the main cause of Mr McGuiness’s death. According to the legal directions which I gave the jury at the end of your trial, I must proceed on the basis that the jury were satisfied that the assault made a material or significant contribution to the physiological processes which resulted in Mr McGuiness’s death from a cardiac arrest, as a result of the severe heart disease which he was later found to have.

I have carefully considered statements from Mr McGuiness’s mother and a number of other members of his close family, which powerfully express the profound impact on Mr McGuiness’s family and friends of his tragic and untimely death, aged only 30 and leaving four young children.

At the age of 52, you have one previous conviction, for a road traffic offence in 2013, which was dealt with by a fine and penalty points. You have no record for crimes involving violent or disorderly conduct.

I have taken account of all of the points made on your behalf by your senior counsel this morning.

Your criminal justice social work report tells me that you present a low risk of further offending and describes your personal circumstances, including your caring responsibilities for a close family member who has significant health issues, which are confirmed by a medical report which has been lodged. I have also noted the terms of the positive character references which have been lodged on your behalf.

I accept that you continue to feel genuine regret and remorse at your involvement in the events which resulted in the death of David McGuiness and at the impact his death has had on his family.

The sentence imposed by the court must take account of the whole circumstances of the case, including not only the harm which resulted from your criminal conduct but also the nature and degree of the culpability or blameworthiness involved in that conduct. Although the harm which resulted from your actions was very significant, your senior counsel has identified a number of factors which significantly mitigate the degree of culpability or blameworthiness involved in your assault upon David McGuiness, and its consequences.  I also take account of the features of your personal circumstances which I have highlighted.

Having regard to all of the factors I have identified, I am prepared to impose a community sentence today as a direct alternative to imprisonment, in the form of a community payback order with a requirement that you complete 300 hours of unpaid work within a period of 12 months from today. Your compliance with the order will be monitored by a supervising officer from the local authority, who will allocate unpaid work to you. If you fail without good reason to attend and complete unpaid work as directed by your supervising officer, they may report you to the court for breach of the order. If you are found to be in breach of the order, the court has wide powers to deal with you including the power to revoke the order and to deal with you as if the order had never been made, including by sending you to prison.