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DAVID HENDERSON v. THE LORD ADVOCATE

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Penrose

Lord Weir

Appeal No: XC481/03

OPINION OF THE COURT

delivered by LORD PENROSE

in

APPEAL

by

DAVID CHRISTOPHER HENDERSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: S.A. Carroll, Ferguson; McClure Collins

Respondent: C. Coutts, ad hoc A.D.; Crown Agent

17 December 2004

[1]The appellant, David Christopher Henderson, went to trial at the High Court at Inverness on an indictment containing twenty-one charges variously libelled against him and two co-accused, Martin Joseph Hamilton and Martin Myles Byrne. The trial took place between 25 September and 3 November 2000.

[2]On 29 September, Byrne tendered pleas of guilty that were accepted by the Crown. The Crown withdrew a number of charges at the close of the prosecution case, and amended others. The appellant and Hamilton were convicted by the jury on a number of the remaining charges.

[3]Hamilton was convicted of crimes of the utmost depravity. It is clear from the structure of the charges that he was guilty personally of extreme and vicious acts of violence, and that he was the directing and controlling mind behind the violence of others. In summary, Hamilton was convicted of the following charges:

  • Charge 1: a charge of assaulting Billy Ming Chan by repeatedly threatening him and punching him on the head to injury;
  • Charge 2: a charge of assaulting Jason Barry Inglis by forcing Chan to punch and kick him on the head and body, hold a knife against his neck, threaten to kill him and place him in a state of fear and alarm for his safety;
  • Charge 7: a charge of assaulting David Charles Denny by repeatedly kicking him on the head and body, repeatedly threatening to slash and stab him, by presenting a knife at him, and attempting to cut off his finger with a knife, all to injury;
  • Charge 8: a charge of assaulting Colin Kevin O'Reilly, by pulling his clothing, pushing his head back and repeatedly inserting a spoon into his eye socket, striking him on the head with an instrument, seizing his head and holding it against the flames from a cigarette lighter, setting his hair on fire, repeatedly striking him on the head and body with a carpet sweeper, all to his injury, and robbing him of a sum of money;
  • Charge 9: a charge of assaulting Graeme Patterson by repeatedly striking him on the head with a piece of wood, repeatedly punching and kicking him on the body to injury, threatening to slash him, forcing him to kneel on the floor and lick shoes, repeatedly demanding money and controlled drugs from him, and robbing him of a sum of money;
  • Charge 11: a contravention of Section 4 (3) (b) of the Misuse of Drugs Act 1971 by being concerned in the supply of diamorphine to others, and in particular to Jason Barry Inglis, Graeme Patterson, Colin Kevin O'Reilly, David Charles Denny, and Billy Ming Chan;
  • Charge 15: a contravention of Section 4 (3) (b) of the Misuse of Drugs Act 1971 by being concerned in the supply of diazepam to others, and in particular to Gary Thomas McConnell and Martin Jamie MacCowan;
  • Charge 16: a charge of assaulting Gary Thomas McConnell by punching him on the head to injury;
  • Charge 17: a charge of abduction and assault of Robert Bonner, by detaining him, threatening to drive him away in a van, repeatedly punching and kicking him on the head and body, forcing him into a bathroom and there into a bath, forcing him to remove his top, repeatedly stabbing him on the face with a knife, forcing him into a cupboard and confining him there, repeatedly pouring boiling water over his head and body, holding a knife against his neck, and repeatedly racially abusing him, all to severe injury, and permanent disfigurement, all in a racially aggravated manner; and
  • Charge 18: a charge of abducting and assaulting Kirsten Williams by detaining her, seizing her hair, pulling her to the floor, repeatedly punching and kicking her on the head and body, threatening to bury her, forcing her into the same bathroom and into the bath, forcing her to remove her top, holding her head against a wall, stabbing her face with a knife, forcing her into and confining her in a cupboard, and there repeatedly pouring boiling water over her head and holding a knife against her neck and threatening to kill her, all to her severe injury and permanent disfigurement.

[4]Byrne pled guilty to two of these charges, but under significant deletions. The charges to which he pled were:

  • Charge 17: a charge that he assaulted Ronald Bonner and did: "repeatedly punch and kick him on the head and body..., repeatedly stab him on the face with a knife, force him to enter a cupboard there and confine him in said cupboard ...., all to his severe injury and permanent disfigurement";
  • Charge 19: a charge that he assaulted Kirsten Williams and did: "repeatedly punch and kick her on the head and body ..., hold her head against a wall and stab her on the face with a knife, force her to enter a cupboard there and confine her in said cupboard..., all to her severe injury and permanent disfigurement."

[5]The appellant was found guilty of three charges:

  • Charge 7: a charge that he assaulted David Charles Denny and did: "repeatedly punch and kick him on the head and body, repeatedly threaten to slash and stab him, present a knife at him, attempt to cut off his finger with a knife or similar instrument, all to his injury";
  • Charge 8: a charge that he assaulted Colin Kevin O'Reilly and did: "seize hold of his clothes and pull him, push his head back and repeatedly insert a spoon into his eye socket, strike him on the head with an unknown instrument, seize hold of his head and hold it against the flames of an ignited cigarette lighter, set fire to his hair, repeatedly strike him on the head and body with a carpet sweeper or similar instrument, all to his injury, and did rob him of a quantity of money";
  • Charge 9: a charge that he assaulted Graeme Patterson and did: "repeatedly strike him on the head with a piece of wood, repeatedly punch and kick him on the body all to his injury, threaten to slash him, force him to kneel on the floor and lick shoes, repeatedly demand money and controlled drugs from him, and rob him of a quantity of money."

[6]The appellant lodged a Note of Appeal against conviction and sentence. There were three grounds of appeal against conviction, set out in the following terms:

  • "Number 1: That the location of the trial in combination with the extraordinary security arrangements surrounding the trial was likely to have resulted in a denial to the appellant of his right to a fair trial. The security arrangements were overt and unnecessarily so, involving heavily armed and armoured police officers with assault rifles, side arms and dogs. The appellant was transferred several times daily between the court buildings at Inverness on foot across open public space surrounded by such heavily armed police officers. The jury's knowledge of and exposure to said measures of security was bound to lead to speculation and apprehension in the minds of individual members of the jury and to influence their judgement of the evidence and the appellant to his prejudice.
  • Number 2. That the trial judge misdirected himself in law when he repelled submissions made on behalf of the appellant under section 97 of the Criminal Procedure (Scotland) Act 1995. In repelling said submissions the trial judge did not give reasons for so doing and therefore while the appellant would ask the court that the submissions be held to be repeated herein brevitatis causa he cannot at this stage do other than make a general and unspecific complaint as to the basis for the rejection of the submissions.
  • Number 3. That there was insufficient evidence before the jury upon which, properly charged, they were entitled to return verdicts of guilty in respect of charges 7, 8 and 9 of the indictment so far as they concerned the appellant.
  • Number 4. That, having regard to the verdicts of the jury and the whole circumstances of the case in respect of charges 7, 8 and 9 of the indictment, and having regard to the sentence imposed upon the panel Martin Byrne on the basis of his admitted conduct in the crimes libelled against him by reference to his plea and the unchallenged evidence (stabbing through the face of two terrorised victims and pouring boiling water over them), the sentence of six years imprisonment on the appellant was excessive."

[7]The trial judge reported to the Court on these grounds of appeal on 28 February 2001. So far as is material, he outlined the evidence against the appellant as follows:

"The evidence disclosed that ... charges 7, 8 and 9 all related to the same occasion on 27 March 2000 at 14/5 Glenalmond Court, Edinburgh. It appeared that the co-accused (Hamilton) had developed some kind of sexual obsession with David Denny (19 years of age). This was not reciprocated. The co-accused repeatedly tried to contact him by telephone. Mr Denny was so terrified of having any further contact with the co-accused that he and a friend decided that the only way out was to kill the co-accused. There was evidence that he had even organised that a gun be obtained. One of David Denny's friends was Colin O'Reilly who dealt - at an apparently low level - in heroin, occasionally assisted by Denny. O'Reilly was aged 29. They both had a friend, Graeme Patterson (27 years of age), who was a drug addict and who had a flat in the same block of flats at Glenalmond Court as Colin O'Reilly, albeit some three floors below. On the evening in question the co-accused arrived unannounced with two other men (one of them as the jury must have accepted being the appellant ... ('Hendy'). Certain others who had been in the flat were ordered to leave, leaving David Denny and Colin O'Reilly on their own. The co-accused said 'Do you think you're smart not to answer the phone to me? We'll see how smart you are now.' There then followed the assaults described in charges 7 and 8.

Initially the co-accused ordered the appellant to give David Denny a beating. He was repeatedly punched and kicked to the head and body by the appellant on the instructions of the co-accused. The co-accused sat chuckling; he said words to the effect 'Don't mark his face, he's got a pretty face.' He then ordered the appellant to slash David Denny with a knife but again said not to mark his face. Denny was punched and kicked a few more times by the appellant, who then placed his hands on the table and tried to cut his pinkie off . Denny thought, on reflection, that this was intended to give him a scare. The matter was not carried through, albeit his finger was left bleeding. Denny explained that his nose was broken and he had several bumps and scars to his head, bruised ribs and a scar on his pinkie which he still had and he was extremely scared by what had taken place. He explained that he did not think that they would leave the flat alive. ... According to him the co-accused appeared to enjoy his suffering ...

The appellant was instructed by the co-accused to assault Colin O'Reilly. He was punched about the head. The co-accused then instructed the appellant to get a teaspoon and gouge O'Reilly's eye out. The appellant tried to force the spoon into O'Reilly's eye socket. This lasted for a couple of minutes and was sore. The appellant did not manage to achieve his aim. According to O'Reilly, the co-accused sat amused. The co-accused then instructed the appellant to get a lighter and turn the flame on. This was held against O'Reilly's head. It burnt both his head and hair. He had never felt pain like that before. The co-accused then said that that was not enough and the appellant was told to get a carpet sweeper with which he whacked O'Reilly over the head, arms, body and legs so hard that it snapped. O'Reilly was left with burns, grazes and scars.

Denny and O'Reilly were instructed that they would require to pay the appellant's wages. O'Reilly handed over some money (£60 or £70) but it was not enough. Arrangements were made to obtain more from O'Reilly's mother with the assistance of Graeme Patterson. When he arrived in the flat with a further £20, the appellant was told by the co-accused to take the money off of him. The co-accused said something to the effect 'Here's the other one. You're the cheeky one who gives us cheek on the phone.' He told the appellant to assault him. He was poked in the head with a large piece of wood and hit a couple of times to the ribs. He was also punched and kicked. According to Graeme Patterson the co-accused sat having a good laugh, loving every minute. The co-accused then threatened to have Graeme Patterson's legs cut to the ankles; a threat which he took seriously. Like the other two, Graeme Patterson explained how he feared for his life. He was told to lick the appellant's shoes and, in fear, he did so. He suffered cuts and bruises and following the event, could not sleep. As a result he lost his job. He explained that before the co-accused left the flat (along with the other two) he threatened that if the police were phoned, he would be back to kill them..."

[8]Leave to appeal on the grounds set out above was refused by a single judge on 14 March 2001, with a statement of reasons communicated to the appellant's solicitors on 21 March 2001. The solicitors applied for review of that refusal in a letter dated 4 April 2001, that set out the appellant's position at considerably greater length than had been done in the Note of Appeal, but to substantially the same effect. In relation to sentence the letter stated:

"The sifting judge states that in respect of sentence the trial judge has explained his reasoning behind the selection of 6 years and on any view it cannot be said that such a sentence was excessive. The trial judge stated in his report that the schedule of previous convictions relating to the Appellant extended to some 6 pages and disclosed convictions for apparently minor assaults in 1988 and twice in 1991. He states that there was also a conviction for assault to severe injury and permanent disfigurement in September 1988 before a sheriff and jury at Hamilton. It should be noted however that Mr Henderson was sentenced to 60 days detention in respect of this and in light of such a sentence, and on one view it could be concluded that the assault was not a particularly serious one. There was one conviction for assault to severe injury and permanent disfigurement and permanent impairment before a sheriff and jury in Glasgow on 22nd October 1977 in respect of which he was sentenced to imprisonment for 30 months. The appellant had never before appeared in the High Court and that the word 'severe' had been deleted from the allegation of injury in charges 7 and 8 by the jury. The Judge gives his reasons for the sentence on pages 5 and 6 of his report.

It was accepted in evidence that the assault, which took place in the flat in Edinburgh, did so over a period of around 30 minutes. There was video evidence showing little or no visible injuries on the victims, and this may have been the reason why the jury deleted the word 'severe'. By contrast, the assaults to which Martin Byrne the co-accused pled guilty took place over a sustained period of time, some 14 hours. There were serious and visible injuries to both victims. At one point during the time span, the police attended at the flat having had a complaint of noise and screaming. Martin Byrne assisted Martin Hamilton in lying to the officers and reassuring them all was well so that they would leave the locus. During this time both complainers had been locked in a cupboard by Martin Byrne. Thereafter the sustained attack continued. Martin Byrne pled to an attack using a knife as a weapon. On any view the assaults for which Martin Byrne was sentenced were of far greater seriousness than those with which the Appellant was found guilty. So far as the record of Martin Byrne is concerned there is at least one assault and robbery for which he received a 12 month prison sentence. There were numerous other summary matters. Accordingly it could not be said that the record of the Appellant was very much more serious than that of Byrne. Using the principles of comparative justice it is submitted that the sentence passed on the appellant is disproportionate to the crimes of which he was convicted."

[9]On review, the appellant was granted leave on 4 May 2001 to appeal against conviction on charge 7 on the view that there might be an arguable point in relation to the need for corroboration of the use of a knife. Leave was granted to appeal on sentence. Intimation of those decisions was made on 14 May 2001. Legal aid for the instruction of senior and junior counsel was obtained on 15 June 2001. It is apparent that at that stage the appellant had all of the information required to prosecute an appeal against sentence, and had, indeed, elaborated the substance of his argument against the sentence imposed by the trial judge. Thereafter there was protracted procedure as the appellant sought to substantiate the factual basis of an appeal against conviction on charge 7. It is necessary to trace the history of that exercise so far as it relates to the involvement of the court.

[10]The appellant first sought authority to have transcribed the recording of counsel's submissions in support of the contention that there was no case to answer. Notwithstanding the restricted scope of leave to appeal against conviction, authority was sought in general terms. Legal aid was granted on 20 August 2001 for the funding of the exercise. The Court authorised the transcription on 21 August. The transcript was received on 27 December 2001. It appears that it was not until 8 April 2002 that counsel's advice was sought on the basis of the information then available. Advice was received in June 2002. That advice involved revision of the Note of Appeal and further requests for additional material. Counsel wished transcripts of the evidence of certain witnesses to seek support for revised grounds of appeal.

[11]On 22 July 2002 a revised Note of Appeal was lodged with the Court, and authority to transcribe parts of the evidence was sought. The supplementary note sought to expand ground number 3 as follows:

"That specifically in relation to charge seven, the trial judge misdirected himself in law and fact when he rejected the submission by counsel that there was insufficient corroboration to allow the jury to find the appellant guilty of attempting to cut off Crown witness Denny's finger. Esto there was sufficient evidence for the jury to convict, they should have been directed that before they could do so in relation to the attempted cutting off of the Crown witness Denny's finger that they must find corroboration in the evidence before they could convict of this element of the charge."

The appellant's legal advisers wrote to the Court that same day asking that a procedural hearing be fixed. Justiciary Office replied on 24 July intimating a date for the hearing of 15 August 2002. Between 22 July and 15 August there was correspondence with the Scottish Legal Aid Board concerning the appellant's application for legal aid to fund the transcription required. Sanction was not granted until 29 July 2002. On 31 July the Court sanctioned the transcription. At the hearing on 15 August the Court allowed the revised grounds of appeal, ordered a supplementary report from the trial judge, and took note of the position on transcripts.

[12]The trial judge provided a supplementary report on 12 September 2002. So far as material, it was in these terms:

"It is to be noted at the outset that the appeal is directed to the appellant's conviction of that part of charge 7 which alleged 'attempt to cut off his finger with a knife or similar instrument', for which it is said there was no corroboration. A submission to that effect was made at the close of the evidence in the trial and prior to my charge to the jury (that is on the basis that I should direct the jury that any verdict of guilty would have to be under deletion of that part of the charge). There is no suggestion now, nor was there then, that there was insufficient evidence for the remainder of the charge (of which whole charge the appellant was found unanimously guilty) including in particular the allegation that the appellant, acting along with two others, repeatedly threatened to slash and stab the complainer and presented a knife at him. This has significance not only for the question of corroboration but also for any possible remaining question as to sentence, on which latter point I comment at the end of this report. According to my notes the complainer indicated that at one point in the course of the assault upon him the co-accused Hamilton ordered the appellant to slash him. The appellant had a knife in his hands. The witness Colin O'Reilly who was present in the room, also gave evidence of the co-accused Hamilton instructing the appellant, who had a knife which he described, to slash Denny and give him a stab. The complainer gave evidence that the appellant then placed his hands on the table and tried to cut his pinkie off. He thought on reflection, however, that this was intended to give him a scare. The matter was not carried through , albeit his finger was left bleeding. He had been left, he said, with a scar on his pinkie. A police witness, Sergeant Scott, gave evidence that the complainer sought to speak to him two days later on 29 March and then told him informally what had happened, although apparently too scared to give a formal statement. At that stage the witness saw not only the injuries to the complainer's forehead and face, apparently consistent with the punching and kicking attack spoken to by the complainer, but also a cut to the complainer's pinkie.

Standing the evidence of Sergeant Scott there was, it seemed to me, arguably enough evidence of the part of the assault in question. Further I took the view that if the jury believed the complainer as to the detailed account he gave (including threats and the presentation of the knife) there was no need for specific corroboration of this matter. I took the view that this was a charge to which the general direction given to the jury relatively early in my charge could apply. I emphasised .., however, that if a particular part of what is said to be an alleged incident of assault is not specifically corroborated it would be right for the jury to look with particular care at the evidence before accepting that that particular part took place. The general direction I gave was, as I understood it, consistent with the approach of the Court in cases such as Campbell v Bennet 1998 SCCR 207 (and see also Stirling v McFadyen 2000 SCCR 239 at 242B). In Renton & Brown's Criminal Procedure at paragraph 24.70., it is said 'It appears too that where an assault charge includes various allegations, eg punching and kicking, or pulling to the ground and striking, it is not necessary to corroborate each of the allegations.' I recognise that a question may remain for resolution as to whether a particular allegation forming part of an assault might nevertheless be regarded as so significant as to require specific corroboration, and further that the absence of any need for specific corroboration of the use of a knife in a situation such as described in Yates v HMA 1977 SLT (Notes) 42, could be distinguished. Be that as it may, in this case, in circumstances where it was accepted that there was sufficient evidence for the allegation of repeated threats to slash and stab the complainer and of presentation of the knife at him, and where the complainer accepted that the apparent attempt to cut off his finger was not carried through to any great extent, I did not think, leaving aside for the moment the evidence of Sergeant Scott, that any specific corroboration was needed.

If the appeal on this point was to be allowed, a question may arise as to its effect upon the appellant's evidence. For the assistance of the Court I can indicate that it would have made no difference to the sentence I imposed. As indicated in my original report, in sentencing the appellant I told him that I took account on his behalf of the fact that what he did was on the instructions of his co-accused, that some of the acts described in the charges were not fully carried through and that in the event none of the complainers suffered severe physical injury. I explained, however, that he had been found guilty of assaults and threats on three people of such a nature that they did, as was no doubt intended, inspire real and lasting fear in the victims; that on top of that he was prepared to take money from them for his pains, and that his record was bad."

[13]At that stage, therefore, there was a full exposition of the issue by the trial judge, and his views of the state of the evidence were fully laid out. It was not enough for the appellant, or perhaps more particularly for those advising him. The appellant's solicitors sent a reminder to the transcribing agency asking for the transcripts that had been authorised. On 16 September 2002 they wrote to Justiciary Office asking for information about the transcripts. On 23 September Justiciary Office asked whether the appeal was ready to proceed. The solicitors said that until they received the transcripts they would not be prepared to proceed. On 22 October transcripts were received. But there was a technical problem with the evidence of the witness O'Reilly. As is plain from the trial judge's report, no part of the evidence of O'Reilly was relied on to provide corroboration of the single feature of charge 7 that had been the subject of challenge. O'Reilly's evidence was part of the corpus relied on by the crown to support the generality of the allegations of assault and the use of a knife to threaten Denny. If he had anything at all to say about the cutting of Denny's finger that is not disclosed and clearly was not relied on by the trial judge in refusing the submission. Nevertheless the lack of O'Reilly's evidence in transcript now became the focus for attention. There were intense efforts to overcome the technical problems with the tape. It was sent to specialists for examination and testing on 13 November 2002. It was submitted to specialists for 'cleaning' in an effort to obtain a transcription. There was correspondence on the matter in February, March, June, August, September and October 2003, when the final advice from the experts was obtained that the defects could not be resolved, and that transcripts could not be provided.

[14]On 20 April 2004, the appellant tendered a new and additional ground of appeal, purportedly in support of the appeal against conviction and sentence. In it some part of the procedural history was narrated. The narrative was neither comprehensive not entirely accurate. In particular, the suggestion that as from 22 November 2002 the appellant's agents were simply awaiting notification of an appeal diet cannot be reconciled with the position presented in the later case and argument that the appeal could not proceed without the transcripts, nor with the efforts made to recover O'Reilly's evidence until October 2003. However, the material contention was that there had been a failure by the Court to secure the transcripts sought by the appellant and that accordingly the Court, by its failure to conclude the appeal within a reasonable time, had denied the appellant his right under article 6 of the Convention, and had thereby contravened Section 6 of the Human rights Act 1998. In a covering letter the appellant's agents confirmed that the appeal was to proceed. The new ground of appeal was put out before the court and leave to appeal was granted. Against that background, it is a matter of no small surprise that on 10 June 2004 the appellant abandoned his appeal against conviction.

[15]In his submissions to us Mr Carroll stated that the abandonment of the appeal followed from the final acceptance that O'Reilly's evidence could not be transcribed. Once that had become clear, he said, it had to be accepted that the trial judge's narrative of O'Reilly's evidence had to form the basis of the appeal. Given that narrative, the appeal against conviction of charge 7 in terms that included a reference to Denny's little finger could not be supported. Despite Mr Carroll's attempt to persuade the Court that this was an issue that depended on the nuances of evidence, we have not been referred to any element of the specific allegation that did depend on O'Reilly's evidence. On the contrary, the trial judge's narrative of the evidence excludes any reference to the material point by O'Reilly. The critical issue had been fully ventilated by the trial judge's reports at the latest by September 2002. Thereafter time was taken up by the fruitless search for support for some unspecified deficiency in the evidence. It is important to note that there is no suggestion that the transcribed evidence of the witnesses on whom the trial judge's analysis of the assault on Denny's little finger depended failed in any way whatsoever to bear out the analysis in his reports. Delay in this case was due to the intransigent insistence of the appellant and his advisers in pursuit of the irrelevant.

[16]However, it is necessary to deal with the argument erected by Mr Carroll on this unsteady foundation. In his submission the conduct of the appellant was irrelevant to the issue of delay. It was the duty of the Court to ensure the expeditious disposal of the case against the appellant. By failing to provide equipment that would enable the appellant to have access to the full evidence of O'Reilly the Court was responsible for the time that elapsed between the application for authority to extend the evidence and the appellant's ultimate acceptance that it was impossible to obtain the transcript. For his major proposition he relied in particular on Majaric v Slovenia (Application No. 28400/95, 8 February 2000). We were invited to consider the principles to be extracted from that decision. The facts were not material on Mr Carroll's approach.

[17]The principles to be found in the decision are set out at paragraph 33:

"The court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case as well as what was at stake for the applicant (see, among other authorities, Pelissier and Sassi v France [GC]. No. 25444/94, 25 March 1999, para 67, and the Philis v Greece (No. 2) judgment of 27 June 1997, Reports 1997-IV, p. 1083, para 35."

At each stage in the prosecution of this appeal the appellant had the benefit of a prompt response from the Court to applications made to it. The simple explanation of the major part of the time that has elapsed between conviction and the disposal of the appeal against sentence is the insistence of the appellant in an appeal against conviction that had to be abandoned as having no foundation. Mr Carroll's assertion that there was some absolute duty on the Court to procure a speedy disposal of the appeal, whatever the position of the appellant, is clearly not supported by the European jurisprudence. The conduct of the appellant is a factor. Had the Court intervened to require the appeal to be disposed of while the appellant continued to pursue his quest for transcripts, we have no doubt that that would have been the focus for complaint. Time passed in this appeal because the court allowed the appellant the time he sought to pursue these matters. This aspect of the appeal against sentence is without substance.

[18]In relation to the more general aspects of the appeal, Mr Carroll accepted that he could not insist in the comparative justice ground of appeal in the terms it had been stated and expanded. He was obliged to accept that the trial judge's reports had drawn attention to the factual inaccuracy of the written ground. However, he contended that on a comparison of the offences to which Byrne pled guilty with those of which the appellant was found guilty, there was a broad equivalence. Similarly while their records of previous convictions differed in detail, there was again a general balance of previous offending. The appellant had been released on licence on 30 June 2004. But he had a continuing interest in this appeal, with a view to reducing the length of the period during which he was exposed to risk in terms of his licence. Since any risk to which the conditions of licence exposes the appellant is a function of future offending the way in which the submission was expressed may be open to question. But the appellant undoubtedly has an interest in having his record amended by the substitution of a lower sentence if that is an appropriate course for the court to take. However, the issue is academic in this sense that we consider that the trial judge, who heard all of the evidence in this case and saw and assessed the witnesses, was in the best position to form a view on the criminality of the appellant's conduct. He has set out clearly and fully the approach he adopted to the selection of the period of custody to be imposed. It is beyond doubt that he had in mind the comparative position of Byrne in the overall pattern of offending focused in this indictment. In our view his approach cannot be faulted. The appeal against sentence is refused.