Lord Justice General

Lord Cameron of Lochbroom

Lord Marnoch

Appeal No: C401/02












Appellant: Party

Respondent: R. Dunlop, A.D.; Crown Agent

3 October 2002

[1]On 13 May 1993 the appellant was convicted by the jury on three charges. They were: (i) that he murdered Gordon Dunbar; (ii) robbed him; and (iii) and attempted to defeat the ends of justice by dismembering his corpse and disposing of parts of it. The trial judge imposed a single sentence of life imprisonment and recommended that he should not be released until a minimum period of 20 years had passed. That same period has now been fixed by him as the "punishment part" of the appellant's sentence. The present appeal is against that decision.

[2]In his note for the Parole Board which was written shortly thereafter, the trial judge stated that the precise circumstances of the death of the deceased remained a mystery. However, it was known that he met the appellant during the course of Christmas Eve 1992. They went to an unoccupied flat in a multi-storey tenement. There was some evidence that anal intercourse had been carried out with the deceased, but it was not clear whether this occurred before or after his death. The appellant stabbed the deceased with a knife which penetrated and pierced his heart. In the course of the following days the appellant proceeded to dismember the body. The head and upper torso had not been found. The remaining parts were placed in polythene bags and concealed in two places. Much effort was made by the appellant to conceal the evidence of the dismemberment. However, traces of tissue and blood were later found in the flat. He wore and gave away items which had belonged to the deceased and boasted about his activities, although he maintained that someone else had killed the deceased and that he was merely involved in the dismemberment.

[3]The appellant had previously been sentenced to life imprisonment in 1968 for the murder of his grandmother when he was a teenager. He served 161/2 years in custody before being released on licence. In 1989 he was charged with serious assault and was recalled to prison. The jury found the charge against him not proven. Nevertheless he spent about 30 months in custody before being released again in January 1992. At the time of his arrest he had been working as a caretaker.

[4]The appellant, who conducted his own appeal, based his submission to the court on what the trial judge had said in explaining the recommendation which he had made under section 205A of the Criminal Procedure (Scotland) Act 1975. He stated in his note that he made the recommendation as to the earliest period for release "because of the horrible crime he had committed and on account of his previous conviction for murder". He was of the opinion that the circumstances of the case justified the making of the recommendation. The appellant's personality would require to be studied most carefully from time to time while he was in custody. Some of the productions revealed that he had strong tendencies to homosexual masochism, although it was difficult to know whether he practised it or merely fantasised about it. He had the ability to form amicable relationships with people of both sexes, but his friendliness must be measured against the fact that he had shown himself to be a killer on two occasions in his life. The trial judge added:

"The act of dismembering the body of Mr Dunbar shows him to be cold and remorseless below his veneer of amiability. In my opinion he must be regarded as a dangerous man and even 20 years from now extreme caution will require to be shown before a decision is taken that it is safe to release him into society once more".

[5]The appellant submitted that in the circumstances a recommendation of 20 years included an element in respect of protection of the public which was not relevant to the fixing of "the punishment part" for the purposes of new legislation. In his report to this court the trial judge states that this assertion is without foundation. He emphasises that nowhere did he state - nor did he have in mind - that the recommendation was made with a view to protecting the public. He was firmly of the opinion that 20 years was an appropriate punishment period having regard to the need for deterrence and retribution.

[6]We are not persuaded that the recommendation of 20 years was based to some extent on the protection of the public. It seems clear to us that what the trial judge was doing was advising the Parole Board that when it came to the time when it was considering the release of the appellant it should not think that the appellant had ceased to be a danger to the public, having regard to the insights into his personality and attitudes that had been provided by the evidence available at the trial.

[7]For the purposes of determining the present appeal the question is whether a punishment part of 20 years was excessive or not. There is nothing in the report provided by the sentencing judge to indicate that he failed to apply his mind to the appropriate considerations in terms of the statutory provisions. As regards the length of the period, the stabbing of the deceased was aggravated, and to a substantial extent, by the fact that he had dismembered the body in order to avoid detection. Furthermore, in the fixing of the punishment part regard required to be had to the previous conviction of the appellant for murder in 1968.

[8]In all these circumstances we are not persuaded that the punishment period selected by the trial judge was excessive. The appeal accordingly is refused.