TWO men have been jailed for attacking and killing a takeaway delivery driver who had tried to defend his boss from an assault.
Former soldier John Auld, 59, described as a “kind and gentle soul”, suffered only minor cuts and bruises but the stress of the incident, sparked by an argument over wet paint, brought on a fatal heart attack.
A judge told Michael Sutherland, 31, of Wallyford, East Lothian, and Steven Archibald, 37, of Musselburgh, that he accepted neither had intended to kill Mr Auld.
But Lord Uist added: “When you engage in violence of this sort, you never know what the consequences will be. You must take your victim as you find him. This was a completely unjustified and wholly deplorable episode of violence which resulted in an innocent man losing his life, and you must both now pay the penalty for what you did.”
Sutherland was jailed for six years, and Archibald received a sentence of five years and three months.
Both had been charged originally with murdering Mr Auld but they pleaded guilty to the lesser offence of culpable homicide. Sutherland also admitted assaulting Brahim Hamouda, 52, owner of Kopas Takeaway, High Street, Tranent, East Lothian.
The attacks occurred on 4 March last year, and the High Court in Edinburgh heard that the two men each struck Mr Auld at least ten times and that, before collapsing, he had said he could not believe what had happened to him.
Isabella Cuthbertson, Mr Auld’s partner of more than 30 years, was lost without him, the court was told. She described him as a hard-working and popular family man. He was a “kind and gentle soul,” she said.
Mr Auld had joined the army as a teenager and served ten years in The Royal Scots, including three tours of duty in Northern Ireland. After leaving the army, he worked as a heavy goods vehicle driver but lost his HGV licence in 2000 following a heart attack and surgery.
The interior of the takeaway was painted on 4 March, and in spite of “wet paint” signs and a warning from Mr Hamouda, Sutherland and Archibald leaned on painted surfaces and their jackets were stained.
Both were “substantially” under the influence of drink and they blamed Mr Hamouda for the damage to their clothes. Sutherland vaulted the counter and began to punch and kick Mr Hamouda.
Mr Auld had been sitting in his car, and he went into the premises.
“Mr Hamouda formed the view that Mr Auld was coming to his aid. He was attacked by both accused. He was pinned in a corner and could not escape. He fell to his knees...estimates of the number of blows inflicted vary, but it appears from accounts of witnesses that each accused struck him at least ten times,” said the advocate-depute, Richard Goddard.
“There were no injuries found at autopsy that would have been fatal or have directly contributed to his death. However, the physiological stress of the attack on a person with significant underlying heart disease caused an increase in heart rate and blood pressure, which in turn caused a fatal cardiac arrhythmia - an irregular heartbeat,” said Mr Goddard.
The defence counsel, Donald Findlay, QC, said Sutherland found it very difficult to accept he had been responsible for taking a human life. He was on suicide watch in prison.
“It may well make no difference to the relatives of Mr Auld but (Sutherland) has asked me to convey to them his deep sorrow that his actions led to this gentleman’s death,” said Mr Findlay.
Derek Ogg, QC, for Archibald, said the accused had no criminal record for violence and the offence was out of character.
“He wants to make clear his shock at his behaviour,” added Mr Ogg.
Lord Uist said Sutherland had been “the prime mover” and bore heavy responsibility for what happened.