SENTENCING STATEMENTS

In passing sentence, Judge McFadyen made the following statement in Court:

“Ewan Fulton, you have pleaded guilty to unlawful sexual activity with, and the culpable homicide of Mhari O’Neill, a fifteen year old child you had met on a social networking site, which you have described as Tinder for teenagers. Mhairi lived in Edinburgh and you lived in Livingston. Mhairi had met you for the first time at around 2.12 pm on Friday 7 December 2018 in the centre of Edinburgh and, although she only knew you through messaging, she was looking forward to getting drunk with you. You had exchanged messages with her just before you met about how cold it was. She was not dressed for cold weather and was wearing a fleece rather than a jacket or even a coat. Mhairi gave you money to buy a bottle of vodka and cigarettes, because you had lost your money and the two of you made your way to the Calton Hill where you sat on a bench and both consumed the alcohol.

The two of you remained there until a little before 22.52 when you could be seen on CCTV footage walking westwards from the direction of the steps which access Calton Hill. You were not unsteady on your feet and you arrived at Waverly Station at 22.57. There were still three trains to Livingston – at 23.09, 23.39 and 23.56. You did not board the first train, but you made your way to the toilet area. While there you seem to have taken some photographs and you messaged a friend to say “tonight was so horrible”. You were seen leaving the toilet area at 23.29 and you boarded the 23.39 train. Between 00.10 and 00.20 on the Saturday morning you were captured on CCTV at Bathgate Train Station and you later said you had fallen asleep on the train and missed your stop at Livingston. You walked from the station on to Edinburgh Road.

While you and Mhari were on the Calton Hill you were observed at about 21.30 by a homeless man who saw that Mhari was slouched forwards on her knees and you seemed to be trying to comfort her. She seemed drowsy and was slurring her speech as she tried to speak to you. The evening was cold – it was December and would have been below 10 degrees Celsius and was windy at the time of Mhari’s death - and the homeless man was surprised that she had no jacket on and thought that she might be at risk of hypothermia.  He observed that it began to rain not long after he saw you and Mhari.

Mhari’s mother had been texting her from just before 7pm and got no replies, although only her first couple of messages seem to have got to Mhari’s phone which seems to have been running out of power. Her family were concerned about the lack of contact and began looking for her, contacting friends before reporting her missing to the police.

Mhari’s body was found lying face down by a dog walker at about 06.10, lying on the ground in front of the bench.  She was partially undressed and she had numerous minor injuries; there was damage to her clothing and her belongings (including her smashed phone) were scattered about. Her state of undress and most of her injuries were consistent with somewhat paradoxical human behaviour during hypothermia or exposure. She also had injuries which were consistent with sexual activity in the nature of love bites to the breast and bruising to the front left and right side of the neck and along the jaw line; this was considered by the pathologists to be consistent with “choking” during sexual contact. It was not the cause of death, but compression of the neck is an inherently dangerous practice associated with a significant risk of death. The pathologists concluded that the most probable cause of Mhari’s death was hypothermia to which she may have been rendered more susceptible because of the effect of alcohol.

In the meantime you got up and went to your work in the centre of Edinburgh, arriving at about 09.15, although you asked to go home after the lunch break because you felt sick. You did not go home, but made your way to the Central Library (significantly out of your way) and spent some time there, before going to get your train home.

During the evening you messaged the same friend that you had messaged the night before suggesting that you were contemplating suicide because you knew you had done something wrong: the girl had not texted you or responded to your messages:

“she was so drunk on the ground, what if she fell asleep up there, anything could’ve happened, she probably lost her phone, I tried to get her to put her jacket on but she was so out of her face, I had no choice but to leave, what was I supposed to do, I had to go”

And, a little later, “I got her drunk she’s 15”.

Immediately after those messages were sent you conducted a number of internet searches on your phone on the subject of suicide, depression and mental health.

You were interviewed by the police in the early hours of the Sunday morning, 9 December in connection with the investigation of a missing female, and you immediately said it was Mhari and you described meeting her and leaving her extremely drunk on the Calton Hill before you got the last train home. You provided a full witness statement confirming you had met up with her for the first time following online conversations which had been a little flirty. You knew she was 15. She had paid for a large bottle of vodka which you had bought. You described kissing and touching each other and it being a little rough, meaning that she gave you “hickies”, although it did not proceed beyond “heavy petting”. She got very drunk and the affection stopped because “she was so fucked” and “it was like she had lost all motor skills, she was too drunk to do anything”. She kept falling off the bench and was so drunk she couldn’t walk. It was freezing and Mhari had taken her fleece off whilst you were being intimate, but although you tried to put this back on her, she was so drunk she couldn’t get her arms in the sleeves. Her tights were ripped at the knees from falling and you could hardly understand what she was saying because she was slurring her words. Mhari asked you to call her friend and her brother for her but she couldn’t tell you their phone numbers and you knew that her phone had run out of battery. You described her “falling about a fair bit” and falling off of the bench onto the muddy ground. You said it was dark and filthy up there.

You said that at about 23.00 you were starting to panic as you knew you needed to get the last train home. You said that you told Mhari several times that you were leaving but you didn’t get a response as she was “unable to speak”. You said that you were crying at the time. You propped her up in the sitting position against the bench and left to make your way to the train station. You fell asleep and woke up in Bathgate and had to get a taxi home. When you woke up in the morning you realised you had Mhari’s bus pass at the bottom of your bag, but you were not sure how it got there.

When you were at work you sent a text to Mhari saying “are you alive?” You explained that what you meant by this was “talk to me when you are alive”. You were freaking out because you hadn’t heard from her. You got sent home from work as you were “having an episode”.  Instead of going home, as we know, you went to the Central Library. You explained that you read there before getting the 17.20 train back to Livingston North.

You later tried to message Mhari and Snapchat her but were unsuccessful. You said that you thought she might have lost her phone and didn’t know any of her friends or family that you could contact.   

You said that when you left to get your train Mhari was awake but she wasn’t acknowledging anything you were saying. She was no longer slurring or asking for anyone. The fleece was on the bench next to her so she was sitting in her bra, her bralet and her skirt.

You agreed to go to Livingston Police Station and while there requested that you be taken to St John’s Hospital for a mental health assessment. Thereafter you were taken, at your request to a friend’s house. Your friend’s mother later provided a statement in which she said that you had become upset and told her that you had been out on the Friday with a girl named Mhari. You said you left her to get your train and thought she would be okay to get home herself as she lived in Edinburgh. You had drunk a bottle of vodka between you. If you hadn’t left her then this wouldn’t have happened and you didn’t realise she was as drunk as she was – if you had then you wouldn’t have left her.

Your friend also gave a statement; she only found out about Mhari’s death when you were brought to her house that day. You told her that you had met a girl in Edinburgh on Friday and bought a bottle of vodka and went to Calton Hill. You stated that you had choked her a bit whilst you and she were kissing as this was what she said she liked. 

She fell over drunk and had cut knees. She was skimpily dressed. You said that before you left her you sat her up but she fell to the side so you sat her up again and put her bag next to her on the bench. Your friend described you as upset and saying you felt terrible. You repeated phrases such as “that girl has a family and if I had stayed she would be alive”.

On 16 December 2018 you attempted suicide by intentionally ingesting Fluoxetine and Paracetamol, resulting in voluntary hospitalisation and subsequent treatment within St John's Hospital Psychiatric Assessment Ward 17.

Having heard a narrative of the facts and been told that you had no previous convictions I adjourned sentencing for the purpose of obtaining a criminal justice social work report and I have been able to consider the report which has been prepared. 

The author reports that you advised that you and Mhari spent a great deal of time talking and stayed at the bench, on the Calton Hill, consuming the alcohol which you purchased. You reported that you had no recollection of when the bottle finished, due to your own level of intoxication. You recalled reciprocal kissing, hugging and touching with Mhari and that you ‘exchanged love bites’ and you spoke of affection in your interactions but you said that you had no recollection of having your hand around her neck. You advised of having flashes of memory of the evening thereafter and said that you had never been so intoxicated with alcohol before. At around 11pm you became concerned about missing the last train home. You tried to sit Mhari up and put the fleece that she had previously been wearing back on her but advised that she was heavily intoxicated, slurring her words and losing her balance. You were of the view that she was conscious when you left her and would be able to make her own way home. Her phone battery was empty and you had been unsuccessful in obtaining a phone number of a relative from her due to her level of intoxication. You advised that you ‘did not think to call emergency services’ at the time as you were not thinking clearly or logically. You reported that you thereafter made your way to the train station, where you fell in the toilet and cut your nose. You told the author that the next day you were becoming increasingly concerned about Mhari’s welfare. You told him that you did not speak to anybody about Mhari and your meeting with her for the full day after leaving her on the Calton Hill. 

According to the author of the report, you accepted responsibility for your actions and were distressed about your recklessness, showing a high level of reflection of and regret for your actions. You had a recognition of the likely effect on Mhari’s family. The report deals with your family difficulties and a history of mental health difficulties around depression and self-harm. You had previously been prescribed Fluoxetine when you were 17 by your GP for depression but you stopped taking it due to side-effects. You had moderated your consumption of alcohol since that night.

You reported that you had always struggled to connect with other young people due to a lack of shared interests. Your longest relationship had lasted for a period of two months and you have struggled to find emotional intimacy in any dates that you have been on. You were described as having a high level of social isolation.

You had studied Social Science at college for a period but this coincided with the index offence and you were unable to complete the course. Since the offence, you reported struggling to find employment or an education course that you could manage or maintain and had recently been on Universal Credit.

You were assessed as low risk of re-offending on the LSI-R:SV risk assessment, but the Risk Matrix 2000 Sexual Scale placed you in the Moderate Risk category and the Violence Scale placed you in the High-Risk category, although I note what was said in mitigation about the offences in this case not being of violence.  Based on a review of other dynamic risk factors in this case (using the Risk Assessment tool STABLE-2007), you scored 4 points on the STABLE-2007 indicating a moderate risk of sexual re-offending. 

It was said that alcohol had very clearly inhibited your ability to reason and plan that day. The level of intoxication that you described that you were also suffering at the time you left Mhari suggested to the author, as he puts it, that there was little likelihood of your frontal cortex operating and that you had made an impulsive decision to leave her alone.

You were not considered to present as an imminent risk of serious harm to others.  You were suitable for a community disposal, albeit that was unlikely and in the event of a custodial disposal you would benefit from post-release supervision.

I was provided with victim impact statements by Mhari’s parents where they have movingly described the terrible impact that her death has had upon them. It is impossible to imagine the loss they have felt, perhaps encapsulated in the words of her mother: “our lives will never be the same without Mhari”. 

I have heard what was said on your behalf in mitigation and considered the terms of the criminal justice social work report. I note all that was said in mitigation about your background, your lack of any previous reckless or risk taking behaviour and the fact that you yourself, although entitled to purchase alcohol when Mhari was not, were still only 18 at the time; and that you and Mhari both willingly consumed alcohol together. I was invited to regard this as at the lower level of cases of culpable homicide. The court could have confidence that this presented as a one-off event.  The court should have particular regard to your young age and capacity for rehabilitation and integration by comparison with adults.

You are a first offender and the court cannot impose a custodial sentence upon you unless it is satisfied that no other appropriate sentence is available and similar considerations arise because of you age.

You are now 20, although you were 18 at the time of your crimes and I also have to take account of your lack of maturity. Indeed, it would appear from the criminal justice social work report that you remain immature for your age. 

I also have no doubt that the consumption of alcohol had a disinhibiting effect on you, in the sense that it had some part to play in clouding your judgment when you found yourself alone on a dark cold night in a remote place with a very drunk girl, although that situation was one which you yourself had in large part brought about. You were significantly older than her; you bought the alcohol; you drank with her; you had surely gone to a remote location with at least the possibility of unlawful sexual activity with a minor in mind and you had engaged in high risk sexual activity with her. I have some difficulty in accepting your claim to the author of the social work report that you do not remember compressing Mhari’s neck. It was something you remembered the next day and you told a friend about choking her because, you said, that is what she liked. It is in itself troubling behaviour towards a child.

While you were clearly under the influence of alcohol while you were with and when you left Mhari, it is also clear that you were aware of your actions. You had tried to get her fleece on and to sit her up. You knew that she was not capable of speaking. You had no justification whatsoever for believing that a very seriously intoxicated 15 year old child who was not even fully dressed, who could not sit up for long without falling over and who was incapable of speech could safely be abandoned in as remote and exposed a part of the centre of Edinburgh as can be imagined on a cold, windy and wet December night. 

There were many things you could have done. The decent thing would have been to stay with her and seek help – for example by calling your own mother or father, or by calling on emergency services. Even an anonymous 999 call, although lacking in empathy and compassion, would have secured the help she needed. But you essentially did nothing for her; you panicked and left her – not when you needed to do so to get the last train – that was another hour away. You left her when there was nothing you yourself could do without assistance and you were not prepared to take any responsibility for getting help for Mhari at a time when she was at her most vulnerable. You were no doubt under the influence of alcohol, but you were still able to message a friend, shortly after abandoning Mhari to say “tonight was so horrible”. You were clearly still thinking, and thinking about yourself.

I accept, of course, that you bitterly regret what happened and would wish that time could be turned back; but I have to deal with you for the culpability of your behaviour that night. 

Taking account of your then and indeed current age and lack of maturity I consider that, because of the gravity of the crimes which you have committed, a custodial sentence is the only appropriate disposal in your case. While in a sense post release supervision may often be a good thing, I am not convinced that is required in the circumstances of this case, having regard to the statutory criteria.

If you had not pleaded guilty, the custodial sentence would have been for a period of four years. However, because of the guilty plea, I will apply a discount of ten months to this period, which means that the sentence will be one of 38 months detention, backdated to 24 May 2021 when you were remanded in custody.

I certify that the offence of which you have been convicted is one which, in respect of the contravention of section 30 of the Sexual Offences (Scotland) Act 2009 attracts the notification provisions of the Sexual Offences Act 2003. This means that you must register your name and address with the police so that your name is added to the Sex Offenders Register. I should make it clear that this is your personal responsibility; the court does not put you on the register (as is sometimes thought); you must do this yourself. If you fail to do so, or keep your details up to date, you will be committing an offence. The Clerk of Court will give you a notice setting out the various requirements.

In your case, in light of the sentence which I have passed, the registration period is an indeterminate period.”

17 June 2021