APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Clarke	[2011] HCJAC 45 Appeal No: XC608/09 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST SENTENCE by G.W.S. Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Sbead, Advocate;

Respondent: Shand, Q.C., A.D.; Crown Agent

5 May 2011

[1] On 19 December 2008, the appellant was convicted, after trial, on two of the charges which he faced. They were in the following terms:

"(1) On 30 November 2007 at the top floor flat at 12 Morgan Place, Dundee you did assault JJC or B ... kiss her on the hand and mouth, seize her by the body, push her to the floor, struggle with her, repeatedly lie on top of her, repeatedly attempt to remove her trousers, repeatedly lower your trousers and expose your private member, seize her by the legs and pull her into a bedroom, all to her injury and this you did with intent to rape her; and

(3) On 8 June 2008 at 140F Broughty Ferry Road, Dundee you did assault CG ... and did present a knife at her, threaten her with violence and repeatedly demand that she remove her clothing, lower your trousers, and induce her to remove her clothing, push her on the body and induce her to lie on a bed, lie on top of her, hold said knife at her throat and induce her to insert your private member into her private parts, and you did rape her; you did commit this offence while on bail having been granted bail on 3 December 2007 and 24 April 2008 both at Dundee Sheriff Court."

[2] Following conviction, the Advocate depute on behalf of the Crown advised the sentencing judge that, in terms of section 210B of the Criminal Procedure (Scotland) Act 1995, a notice had been served on the appellant advising him that an application for a Risk Assessment Order would be made by the Crown. The Advocate depute moved the sentencing judge to grant such an order, which he did.

[3] As regards the offences themselves, the sentencing judge explains that, in relation to each complainer, the attack to which they were subjected had been preceded by the appellant behaving in a normal and friendly manner towards them. Neither of them had had any concern about being alone with him until, suddenly and without warning, his behaviour had changed. In each case he had suddenly become aggressive and had attacked the complainer. The terms of the attack spoken to by each complainer followed closely the narrative set out in the two charges already narrated. It was evident from the evidence led in the trial that both complainers had been considerably distressed by the actions of the appellant. The appellant's position at the trial in relation to both of the charges had been that the complainers had consented to what had happened to them.

[4] Following the making of the Risk Assessment Order, the risk assessment report, together with two phsychiatric reports which had also been ordered, came before the sentencing judge on 19 May 2009. In mitigation, it was explained to the sentencing judge that the appellant accepted the terms of the risk assessment report and accepted that it indicated that he was at a high risk of re-offending. He also accepted that at the present time there had been no particular psychiatric concerns in relation to him. In his report to this court, the sentencing judge draws attention to the contents of the risk assessment report, which indicated that, if at liberty, the appellant posed a high level of risk to the safety of the public at large. For the reasons which the sentencing judge sets forth at pages 6 and 7 of his report, he concluded that, in the light of the whole circumstances, it was appropriate to make an order for lifelong restriction, he being satisfied that the risk criteria were met under section 210F of the 1995 Act. In terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, "the 1993 Act", the sentencing judge ordered that a period of ten years imprisonment be served by the appellant before the provisions of section 2(4) and 2(6) of the Act should apply. The sentence was backdated to 10 June 2008.

[5] The appellant thereafter appealed against the sentence imposed upon him on grounds set forth in a Note of Appeal in the following terms:

"It is submitted that the punishment part selected was excessive notwithstanding the nature of the offences of which the appellant was convicted. It is submitted, that, in so far as the starting point identified was fifteen years, that has led to the imposition of an excessive sentence. In selecting the sentence it is submitted that the sentencing judge has given too much weight to the gravity of the offence. Separatim it is submitted that the proper approach would have been to fix the punishment part at half the notional determinate sentence. Accordingly there has been a miscarriage of justice."

The Submissions

[6] When this appeal came before us, it was indicated at the outset that no issue was taken with the sentencing judge's decision to make an order for lifelong restriction. However, issue was taken with the punishment part arrived at by the sentencing judge of ten years. As regards that, it was submitted that the starting point in the selection process was excessive. Looking at the circumstances of the offences and the appellant's record of previous convictions, the sentencing judge had taken as his starting point a cumulo sentence of twenty years. Included within that starting point was the maximum sentence for the bail aggravations appended to charge 3 which the sentencing judge regarded, particularly in the light of the record of previous convictions, as of material significance. In that regard it was submitted that undue weight had been attributed to the record of previous convictions which was not of great moment.

[7] Counsel for the appellant pointed out that the sentencing judge had proceeded to exclude that part of the notional determinate sentence that he was required to identify attributable to the risk presented by the appellant to the public. He had fixed that period to be excluded in terms of section 2(2)(aa) of the 1993 Act at five years. No issue was taken with that element in the sentencing judge's decision. What the sentencing judge had then done, in order to arrive at the figure for the punishment part, was to take two thirds of the discounted notional determinate sentence, thus arriving at a punishment part of ten years. He stated that he had done that having regard to "the seriousness of the offences, and that one followed very shortly after another and both were analogous offences." In that respect, it was submitted that the sentencing judge had erred. The proper approach to the interpretation of section 2(2)(aa)(iii) of the 1993 Act, as elucidated in Morris Petch and Robert Foye v Her Majesty's Advocate [2011] HCJAC 20, would have been to take a proportion of one half. In that connection reference was made to the observations of the Lord Justice General at paragraph [45] of his Opinion in that case. In all these circumstances, the sentencing judge had misdirected himself. The sentence imposed by him as regards the punishment part should be quashed and this court should select an appropriate figure for itself.

The Decision

[8] Before coming to the specifics of this appeal, it is appropriate to make some observations concerning the law which is to be applied. The statutory background to the making of a decision to identify a punishment part in a case of this kind is to be found in section 2(2) of the 1993 Act, as amended. The proper approach to that is dealt with in detail in the opinion of the Lord Justice General in Morris Petch and Robert Foye v Her Majesty's Advocate. His Lordship considers the terms of that statutory provision and the way in which it has been interpreted in the past, particularly in Ansari v Her Majesty's Advocate 2003 J.C. 105, by the majority in that case. Particular reference is made to his observations in paragraph [45] of his opinion. In paragraph [52], the Lord Justice General makes certain observations about Ansari v Her Majesty's Advocate. He indicates there that he was unable to accept the reasoning of the majority in that case. He then goes on in this way:

"I agree with Lord Reed (para. [30]) that the fact that, under the Parole Board (Scotland) Rules, the Board is entitled to take account of the nature of the relevant offence does not entail that its functions involve considerations of retribution or deterrence. I also agree with him that, ordinarily, the exercise required by sub-section (2)(aa)(iii) will involve taking half the figure brought out by that exercise up to that point, the seriousness of the offence having already been taken into account under sub-section (2)(a) and (aa)(i)."

[9] It appears to us also to be appropriate to highlight what the Lord Justice General said in paragraph [53] of his opinion in that case:

"I have accordingly come, with regret, to the view that, however unsatisfactory it may appear as a matter of comparative justice, Parliament has given statutory effect to an arrangement under which an indeterminate prisoner will, or at least may, become first eligible for consideration for parole at an earlier stage in his sentence than an equivalent determinate prisoner. If this situation is to be remedied, it is for Parliament to remedy it. The divisions of opinion expressed judicially in these appeals would suggest that a clear, well-considered legislative solution is called for. Meantime, sentencers should, in my view, adopt the approach to these provisions preferred by Lord Reed in Ansari."

[10] We think that it may be important and of some comfort to those concerned about the anomalous situation outlined by the Lord Justice General in paragraphs [49] and [53] of his opinion, to recognise what is the overall effect of the statutory provisions in question. Upon the expiry of the punishment part fixed by the court, the subject of the sentence is not released. What occurs is that the jurisdiction to determine the necessity for incarceration of the subject of the sentence passes from the court to the Parole Board, sitting as a judicial tribunal. The release of the subject of the order will occur only if and when that body conclude that that is consistent with the maintenance of an acceptable level of risk to the public. Such a state of affairs may never come into being; alternatively, if it does come into being, that may happen only at some distant point in the future, until when the subject will remain incarcerated.

[11] With the approved approach in mind, we now turn to the particular circumstances of the appellant in this case. As regards the starting point of the exercise of identification of a punishment part, we have concluded that the starting point, selected by the sentencing judge for the purposes of section 2(2)(aa)(i), was excessive. While the circumstances of the offence to which charge 3 in the indictment related were very grave, indeed it might be said that this particular rape was among the most serious conceivable, we do not consider that that particular offence could have justified a determinate sentence in excess of in the region of twelve years. There is, of course, also to be considered the offence to which charge 1 in the indictment relates. Our conclusion in relation to that is that that offence could not have justified a sentence in excess of four years in the circumstances. Taking the view that these notional determinate sentences would be ordered to be consecutive, relating as they would to two entirely separate offences, we would adopt a starting point for the purposes of the present statutory exercise of sixteen years. It is, of course, necessary to exclude from that period the part of the notional period of imprisonment which the court considers might be necessary for the protection of the public, in order to arrive ultimately at a period of imprisonment which would satisfy the requirements of retribution and deterrence. As regards that, we have no reason to depart from the period selected by the sentencing judge of five years. Accordingly excluding that period from our starting point, we arrive at a figure of eleven years. In view of the approach approved in Morris Petch and Robert Foye v Her Majesty's Advocate, it is appropriate to identify one half of that period as the period mentioned in section 2(2)(aa)(iii) of the 1993 Act. Following that course, we arrive at a figure of five and a half years. That is the period which, in the light of all the circumstances and in the light of the statutory provisions which we must apply, we select as the punishment part in this case. We shall accordingly quash the sentence of the sentencing judge, in so far as it selected a punishment part of ten years, and substitute for that figure five and a half years. The order for lifelong restriction is, of course, affirmed.