| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| | [2013] HCJAC 111 |
Lady Paton Lord Mackay of Drumadoon Lord Drummond Young | Appeal No: XC15/13 OPINION OF THE COURT delivered by LADY PATON in REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the case of COLIN ROSS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: McCall, Prais; John Pryde & Co, Edinburgh
Respondent: Wade, Advocate Depute; Crown Agent
2 October 2013
Introduction
[1] The appellant was born on 11 February 1972. On 8 September 2006, when aged 34, he pled guilty to a charge of attempted murder. On 19 December 2006 he was sentenced to an order for lifelong restriction, with a punishment part of 20 years (discounted from 25 years to reflect his plea of guilty). The sentence was backdated to 6 July 2006, when he first appeared in court in connection with the offence. Following a referral by the Scottish Criminal Cases Review Commission (SCCRC) the appellant now appeals against the punishment part as being excessive.
Punishment part: the legislation applicable at the time of sentencing (19 December 2006)
[2] The legislation applicable on 19 December 2006 was the Prisoners and Criminal Proceedings (Scotland) Act 1993 as amended by the Convention Rights (Compliance) (Scotland) Act 2001 and the Criminal Justice (Scotland) Act 2003. Subsequent amending legislation (such as the Criminal Cases (Punishment and Review) (Scotland) Act 2012, which came into force on 24 September 2012) was not applicable.
[3] As at 19 December 2006, section 2 of the 1993 Act (headed "Duty to release discretionary life prisoners") entitled a prisoner to have his case referred to the Parole Board at the expiry of the punishment part specified by the sentencing judge as part of the lifelong restriction order. The punishment part was defined as:
"... (2) ... such part of [the lifelong restriction order] as the court considers appropriate to satisfy the requirements for retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public), taking into account -
(a) the seriousness of the offence, or of the offence combined with other offences of which the life prisoner is convicted on the same indictment as that offence;
(aa) in the case of [an order for lifelong restriction] -
(i) the period of imprisonment, if any, which the court considers would have been appropriate for the offence had the court ... not made the order for lifelong restriction, for it;
(ii) the part of that period of imprisonment which the court considers would satisfy the requirements of retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public);
(iii) the proportion of the part mentioned in sub-paragraph (ii) above which a prisoner sentenced to it would or might serve before being released, whether unconditionally or on licence, under section 1 of this Act [the "early release" provisions];
(b) any previous conviction of the life prisoner; and
(c) where appropriate, the matters mentioned in paragraphs (a) and (b) of section 196(1) of the 1995 Act [namely, the stage at which the offender indicated his intention to plead guilty, and the circumstances in which that indication was given]".
Guidance in case-law
[4] In Petch & Foye v HM Advocate 2011 JC 210, 2011 SCCR 199, 2011 SLT 391, a seven-judge bench by majority approved the approach to the calculation of punishment parts in terms of section 2 of the 1993 Act adopted by Lord Reed in Ansari v HM Advocate 2003 JC 105, 2003 SCCR 347. Lord Justice General Hamilton spoke for the majority when he said:
"[53] ... [Until Parliament legislates otherwise] sentencers should, in my view, adopt the approach to [section 2 of the 1993 Act and section 196 of the 1995 Act] preferred by Lord Reed in Ansari v HM Advocate ..."
[5] Lord Reed's approach can be found in paragraphs [82] to [88] of Ansari. In particular, he stated:
"[82] In my opinion, therefore, the court should continue to determine the punishment period in two stages: first, it should decide what would be an appropriate determinate sentence to satisfy the requirements of retribution and deterrence, ignoring any period of confinement which might be necessary for the protection of the public; then, secondly, it should apply a discount to that notional sentence to reflect the proportion which a determinate sentence prisoner would have to serve before being considered by the Parole Board. In general, that proportion will be one half of the notional sentence; and, in accordance with the principle which I have explained, the court should therefore normally fix the punishment part at one half of the notional sentence.
[83] Situations may however arise in which the general principle underlying sec 2(2), and explained in O'Neill, may point towards a period which is longer than half of the notional sentence which would have been appropriate punishment for the offence in respect of which the life sentence was imposed. Indeed, it appears to me that there may be situations in which that principle may even point towards a period which is longer than two-thirds of that notional sentence. It is unnecessary in my opinion to decide in the present case whether the court can competently specify a period which is greater than the higher figure calculated under para (aa)(iii), i.e. two thirds of the notional sentence which would have been appropriate punishment for the offence in respect of which the life sentence was imposed; and it is therefore unnecessary for me to express a concluded view. My provisional view, however, is that the court can competently do so. There is in any event no doubt that the court can competently specify a period between one half and two thirds of the notional sentence ... [Lord Reed proceeded to give some examples of exceptional cases]".
The background to the fixing of the punishment part on 19 December 2006: the appellant's history of offending
[6] On 2 June 2003 the appellant was convicted of a breach of the peace. He was discovered with a paper in his wallet giving himself instructions about how to attack a woman in her own home. The paper (quoted in full in paragraph [11] below) included advice such as:
" ... Find out as much info as possible for a home attack. ...If need be, pretend to be lost and ask for directions just to find out if she is strong or timid ... Keep door or window unlocked so I can get in before her, then the fun begins."
[7] He was also found to be in possession of inter alia binoculars, a woollen hat with eye-holes, a T-shirt fashioned into a hood with eye-holes, a gag made of black tape, a roll of electrical tape, gloves, and condoms. On 17 July 2003 the appellant was sentenced to two years imprisonment, back-dated to 10 February 2003, with a supervised release order of one year. He was released in February 2004, having served one year in custody.
[8] On 8 May 2004 (some four months after his release) the appellant attacked a female German tourist. He was sentenced to three years imprisonment, and to an additional supervised release order. He was subsequently released on 9 June 2006. In terms of his supervised release order and an associated restriction of liberty order, he had to remain in his own home from 7pm until 7am. On 26 June 2006 he was made subject to an interim sexual offences prevention order (inter alia preventing him from approaching any female without reasonable cause, and from carrying or wearing in a public place any item that could conceal his identity). On 7 July 2006 a permanent order in those terms was made for the appellant's life, under section 105 of the Sexual Offences Act 2003.
[9] On 5 July 2006 (about four weeks after his release) the appellant attacked a female American tourist who was walking in a Scottish glen. On being questioned by the police, he ultimately confessed, stating inter alia:
"...I wanted to hurt someone, do a lot of damage to someone ... I can't cope on the outside. I've got so many anger issues, I'm a danger to the public and I don't deserve to be walking about ..."
[10] On 8 September 2006, the appellant pled guilty by section 76 procedure to a charge of attempted murder, and was sentenced as outlined below. The victim was flown back to America, where she subsequently died on 31 October 2006.
The risk assessment report
[11] In view of the circumstances of the offence on 5 July 2006, and the terms of the reports, the sentencing judge made a risk assessment order. A risk assessment report dated 11 December 2006 was prepared by Dr Darjee. That report makes it abundantly clear that the appellant poses a high risk to the safety of the public. The following are excerpts from the report:
" ... 2. EXECUTIVE SUMMARY
... there is little in the background information available to indicate why he should have developed his need to commit acts of violence towards women.
His personality is characterised by emotional detachment, callousness, lack of empathy, selfishness, and ability to lie and manipulate others. He is a highly controlled individual who keeps a tight lid on his emotions. He is able to present a façade to others that seems to hide his underlying feelings and motivations. There may be a sexual fantasy element to his offending although there is no clear evidence of sexual sadism.
Given the nature of his offending, his personality characteristics and the response he has showed to supervision, along with the lack of relevant protective factors, the conclusion in this case is that he poses a high risk to the safety of the public at large. If at liberty there would be a high likelihood of an imminent risk of potentially fatal violence to a woman unknown to him.
3. OPINION ON RISK LEVEL
... IT IS MY OPINION THAT, IF AT LIBERTY, COLIN ROSS POSES A HIGH RISK TO THE SAFETY OF THE PUBLIC AT LARGE.
The offender presents an on-going risk of committing an offence causing serious harm.
If at liberty it is highly likely that within months he would attack an adult female unknown to him. He is likely to use potentially fatal violence. The reasoning behind this conclusion is set out in the sections 'Offence analysis' and 'Opinion on future risk'.
The identified scenarios involve pervasive risk and there are few if any protective factors to mitigate that risk.
There are few protective factors and the risk he poses is to adult females generally. See sections on 'Risk and protective factors' and 'Describe the most probable future risk scenarios for this offender.
The offender requires long-term risk management, including supervision, and where the offender has the capacity to respond, on-going treatment.
The risk he poses to women will need to be managed for an indefinite period. Supervision and treatment will be important, but he has already shown an ability to seriously offend when under relatively intense supervision and any potential response to treatment must be seen as uncertain at present.
... 2) Analysis of past and current offending
4.2.1 Breach of the peace - Feb 2003
4.2.1.1 Police summary
At the time of this offence he was described as a single hotel worker who lived with his mother in Croy. In the early hours of 09/02/2003 he was seen in the Culcabock area of Inverness by two people walking along the street. He appeared to have a dark woollen hat pulled over his face, and when seen by the two witnesses he ran off. The witnesses continued their walk and saw him again acting suspiciously. The woollen hat, with eye holes cut into it, was over his face. He again ran off when seen. The witnesses were concerned and called the police. He was approached by two police officers while in the same area and was noted at the time to be holding a bandage in his left hand with his left arm in a sling. As the police drew closer he dropped a knife with a three inch blade on the footway and he was no longer wearing the sling. He had binoculars hanging from his neck, which he stated were for sightseeing and bird watching. He was described as nervous and agitated. He told the police that he was looking for a property to break into so he could sleep there for the night. When searched he was found to be in possession of the following items:
· Binoculars
· Green woollen hat with eye-holes
· Two white bandages
· Black hat
· Pair of black gloves
· A small blue T-shirt fashioned into a hood with eye-holes
· Pair of marigold gloves
· Gag made of black tape
· Pencil
· Roll of electrical tape
· Two condoms
· Cannabis resin
· A handwritten note (within his wallet)
The note read:
'Keep away from camera. Don't walk up and down selected road, find good hiding places and stay there. Don't chicken out of attack. Find out as much info as possible for a home attack. Leave area straight afterwards, remembering to change clothes. If need be, pretend to be lost and ask for directions just to find out if she is strong or timid. Use van and buildings as cover for spying. Got to make it work. Can't face another fruitless night. Got to be one step ahead of them so I can stop them mocking. Faced that shit all my life, all the cruel remarks and hurtful comments, just keep that in mind when I start to think this. Isn't right, they are all the same, easy and vulgar. Get address, keys and phone. Find out number. Phone when outside to see if anyone is there. If not, then enter and have look about. Keep door or window unlocked so I can get in before her, then the fun begins'
He indicated that he planned to attack someone whilst he was out.
When interviewed by the police about the note and his behaviour that night, he stated that his intention was to hurt someone, male or female. He stated he was angry and had been thinking of attacking someone and beating them up. He had written the note on the night before he was arrested. He had been thinking about following someone and attacking them, and if the person was female, then the attack would have been sexual in nature. He admitted to looking at houses in the Inverness area over the previous week. The bandages were for tying someone up, the gag was to cover their mouth, the gloves were to hide his DNA and the green hat and T-shirt were masks to hide his identity. He then stated that he was looking for properties to break into so he could sleep in them and admitted to taking a quantity of amphetamine and cocaine that day ...
4.2.1.2 Offender's account to assessor
... That night on Saturday 8th February 2003 he finished work and he described having 'all sorts of thoughts going through his head'. He had thoughts of attacking a woman ... There was a t-shirt with holes in it which he had planned to use as a hood if he attacked a female. In terms of the objects which he could have used for attacking a woman he listed these as the tape, the hood, the knife and the bandage ...
He could not remember the details of [the] note, but thought it had said 'all women are bitches and sluts'. He was angry towards women generally ...
4.2.2 Assault with intent to rob and theft - May 2004
4.2.2.1 Police summary
... The offence occurred on 08/05/2004. The victim was a 36 year old German woman ... who was on holiday in Scotland. She was walking along a nature trail in Cawdor Woods when she saw Colin Ross standing on high ground next to the path looking away into a field. She continued walking and stopped at a tree, leaning forward to smell it. She was attacked from behind, her attacker grabbing her right shoulder. She looked round and saw that her assailant was wearing a 'black wool mask' which had two holes for the eyes and perhaps a hole for the mouth. She screamed and struggled violently to break free. Her attacker was wearing a pair of black gloves and said 'You shouldn't shout'. The struggle continued resulting in her clothing being torn and both of them losing their footing and rolling down an embankment. During the struggle she lost her glasses and purse. She got to her feet and grabbed a piece of wood to defend herself. He then told her to go. She did not feel he was trying to steal her bag. She picked up her bag and escaped towards Cawdor Castle where she told others what had happened and was described as visibly upset. She saw him walk off in the direction of the river. Her cardigan was ripped and she suffered minor abrasions to the left shoulder and right side of her neck. Witnesses described a man looking tense, agitated, preoccupied, deliberately avoiding eye contact and walking like a 'man on a mission'. He was also noted to look out of place as he was all wrapped up despite it being a warm day ...
4.2.3 Attempted murder - July 2006
4.2.3.1 Police summary
At the time of this offence he was described as a high risk registered sex offender who had been released from prison on 09/06/2006. He was subject to a sexual offences prevention order, a supervised release order and a restriction of liberty order ...
The victim was a [57 year old] American woman who was in Scotland for a fortnight's holiday. She had walked the majority of the Great Glen Way during her holiday and wished to complete the last 6 miles to Inverness. She was dropped off at Blackfold at about 11.30am and was due to be collected by friends at Inverness Castle before 2pm. She had not arrived by 5pm so her friend called the police. At about 6.30pm she was found by a police dog lying in a ditch, with laboured breathing and not responsive to vocal instructions. She had serious head injuries and her face was covered in blood. Her eyes were [closed] and the surrounding skin was black and blue. Her wrists had been tied together with a shoe lace. She was immediately taken to Raigmore Hospital where she remained in a coma.
Suspicion immediately fell upon Colin Ross. He was interviewed by the police on a voluntary basis, and in the first two interviews denied any involvement. He then confessed. He stated that following his release from prison he had been trying to stay off drink and drugs, but in the week prior to the offence he had started drinking and had been smoking cannabis, which he claimed changed him. He stated 'I wanted to hurt someone, do a lot of damage to someone' and that on cannabis he was like 'Jekyll and Hyde'.
He stated he left his flat, went past Craig Dunain Hospital and followed the Great Glen Way out of Inverness. He saw the victim walking towards him. He was clutching his side due to 'sore kidneys' and she asked if he was okay. He ignored her, but as he [passed] her he became enraged and decided to attack her. He picked up a piece of aluminium pipe that was lying on the ground and followed her for about 10 yards. He engaged her in conversation briefly and repeatedly struck her head with the pipe. She raised her hands to defend herself after the first blow but he 'went into a frenzy'. She fell to the ground unconscious but he kept hitting her about the head. He picked her up and threw her in some bushes. He picked up a rock and repeatedly struck her head with it. He took her rucksack from her back and searched her pockets finding some money. He put this in the rucksack. He then tied her hands together in front of her, with the shoe lace that he had been using as a belt, so she could not get up after he left. He then headed towards Inverness, throwing the stone into the woods and burying it.
[After getting rid of items such as the pipe, and cleaning himself up, he] returned to his flat where he was met by the police.
He stated, 'I can't cope on the outside. I've got so many anger issues, I'm a danger to the public and I don't deserve to be walking about' ...
4.2.3.2 Offender's account to assessor
At the time of the offence he was reporting to the police daily, was doing sex offender treatment work, was in regular contact with his social work supervisors, was receiving support from a SACRO worker and was in regular contact with his mother ...
On Wednesday, the day of the offence, he woke at about 8am ... [he] reported to the police station at about 9am. He returned to his flat and then decided to go for a walk ... he went past Craig Dunain Hospital, along a track and onto the Great Glen Way ... He smoked the cannabis ... He did not see the victim approach him... He was startled when she put her hand on his left shoulder and said, 'Are you alright?' ... he felt anger rising ... he 'literally saw red' ... He ... remembered bending over her hitting her ... he had a bit of metal in his hand He remembered that she had blood over her head and cuts to her head. She was making gargling noises. He did not feel anything. He dropped the metal bar and picked up a stone. He leant over her and hit her a couple of times with the stone, but did not know why.
... He took her rucksack ... He took the money from her pockets ... he ... tied her hands in front of her with a lace he had been using as a belt ... He did not know why he had tied her hands together ...
4.2.3.3 Offender's account to others
He was assessed by Dr Alistair Hay (Consultant Psychiatrist) on 10/07/2006. He described a battle in his head between a good and bad side. He admitted 'this was something part of me enjoyed doing' and that he got a sense of power out of such offending ...
4.2.4 Offence analysis
... He clearly demonstrates an escalating pattern of violence towards women, and in my opinion the offences are part of a pattern that is likely to have the same underlying motivation and to fulfil the same underlying psychological needs ...
...The stealing and collecting of underwear indicates fetishistic activity, but there is no clear evidence of sexual sadism ...
The need for power and control over others, perhaps in compensation for underlying feelings of inferiority, is indicated by the content of the note he wrote in 2003, his statement to the police in 2003, Dr Hay's assessment in 2006 and perhaps his tying of the victim's hands in the current offence. Feelings of resentment, hostility and anger towards women are betrayed by his note in 2003 and the current offence ...
... [a]ll three of these offences required a degree of planning in terms of getting necessary materials or equipment together and in terms of internal thought processes and impetus to action ...
Personality traits such as his detachment and lack of empathy would allow him to attack a woman to fulfil his underlying needs without any feelings for his victims or any true feelings of guilt. He seems to be a highly controlled individual adept at keeping a lid on his emotions. He does not appear to demonstrate aggression or impulsivity very frequently, but when he does he is perhaps overwhelmed by it, and this may have contributed to the degree of expressive aggression demonstrated in the current offence ...
3) Risk and protective factors
4.3.1. Risk factors
...Although he does not have a score on the PCL-R [Psychopathy Check List - Revised] indicative of a psychopathic personality disorder, he does have an unusually high score on Factor 1 indicated by emotional detachment, callousness, lack of empathy, selfishness, and ability to lie and manipulate others. He is a highly controlled individual who keeps a tight lid on his emotions. He has schizoid, obsessive-compulsive, narcissistic and obsessive-compulsive personality traits, in keeping with his PCL-R profile. There may be a sexual fantasy element to his offending although there is no clear evidence of sexual sadism. He is not mentally ill ...
...He has committed three offences (in 2003, 2004 and 2006) displaying an escalating degree of interpersonal violence towards women ... it is likely that his underlying motivation to violently attack women is rooted in sexual gratification, the need for power or control, anger and hostility towards women, or a combination of these ...
He has re-offended twice whilst under statutory supervision and apparently fully compliant. He has been able to present as sincerely keen to do work to reduce the risk he poses, whilst he has clearly been moving towards re-offending. He engaged superficially in sex offender treatment and does not appear to have benefited from this.
4.3.2 Protective factors
There is a dearth of genuine protective factors in this case ... Given the circumstances of his recent offences ... it seems unlikely that any of [the existing protective factors] would significantly diminish the risk he poses towards women.
4) Opinion on future risk
...
4.4.2 To whom does this offender present the greatest risk?
It is highly likely that, if at liberty, he would pose an immediate risk to adult females ...
4.4.3 What is the likely impact and severity of harm associated with this offender?
Any further offending against women is likely to involve a high degree of physical violence. If at liberty there would be a high likelihood of a potentially fatal attack on a woman.
4.4.4 Describe the most probable future risk scenarios for this offender
Clearly the most probable future risk scenario would be in keeping with the offences in 2004 and 2006, and involve an attack on a lone adult female who is unknown to him in a secluded area, such as woodland ... He would most likely attack a victim suddenly using overwhelming force, with anger leading to potentially fatal violence. It is likely that if at liberty such an attack would be imminent, probably occurring within a few months ..."
CONCLUSIONS
1) Overall conclusions
There is a high likelihood that if at liberty Colin Ross would pose an imminent risk of potentially fatal violence towards a woman. There are few apparent protective factors in this case.
2) What should be the main objectives of risk management?
...At present it is extremely difficult to envisage a safe monitoring regime in the community. Warning signs of imminent offending may not be apparent, and signs that he is planning to attack a woman may be well hidden. He seems to be primarily motivated by internal factors which others have little access to. Watching for particular external precipitants and markers that an offence may be imminent may be fruitless. If he were placed in the community soon he would require 24 hour surveillance to prevent serious violence towards a woman. A number of appropriate restrictions were placed on him previously but despite the intensity of supervision he received he was still able to reoffend. The risk he poses to adult women generally is such as to make it difficult to identify specific victim safety planning measures that would be of relevance in the community. Clearly any supervision and monitoring regime will need to be carefully considered when and if he is considered for release in the future.
His ability to present as a 'model prisoner' should not be used to inform any conclusion that the risk he poses is diminished. So far his externally observable behaviour has not given a clue as to his internal world and the processes that have led to his offending."
The fixing of the punishment part
[12] Against that background, the sentencing judge (Lord Wheatley) found, on a balance of probabilities, that the risk criteria in terms of section 210E and 210F of the Criminal Procedure (Scotland) Act 1995 were met. He accordingly imposed an order for lifelong restriction (cf Johnstone v HMA 2011 SCCR 470) and fixed the punishment part at 20 years. In so doing, he indicated that he had ignored the fact that the victim had subsequently died, but referred to the horrific nature of the injuries inflicted on an innocent and defenceless lady, the appellant's disturbing record involving escalating violence towards women, the fact that he had offended in that way when apparently fully compliant with various court orders, and Dr Darjee's opinion that the appellant was callous, without any real empathy for his victim, manipulative, and at high risk of re-offending.
[13] The appellant appealed against sentence, but abandoned that appeal in March 2007. He subsequently applied to the SCCRC, contending that the punishment part had not been correctly calculated and that it was excessive. The SCCRC referred the appellant's case to the High Court.
Submissions for the appellant
[14] Counsel for the appellant submitted that the punishment part selected was excessive, and that the sentencing judge had erred in the manner in which he had calculated the punishment part. The proper approach was as set out in Petch & Foye v HM Advocate cit sup. While the Scottish Parliament had further amended section 2 of the 1993 Act by the Criminal Cases (Punishment and Review) (Scotland) Act 2012, entitling the court to take a proportion greater than one-half depending upon factors such as the seriousness of the offence, that amendment only came into effect on 24 September 2012, and thus was not applicable in the appellant's case.
[15] Counsel argued that the proper approach to the assessment of the punishment part was in four stages: the court should (1) identify the notional determinate sentence; (2) strip out of that notional determinate sentence the part representing protection of the public; (3) take account of the early release provisions applicable to determinate sentences; (4) discount the figure by 20 per cent
in terms of section 196 of the 1995 Act, to reflect the utilitarian value of the plea tendered by the appellant.
Stage 1: identifying the notional determinate sentence
[16] The 25 years starting-point selected by the sentencing judge was in itself excessive. There was no reported case (relating to a determinate or an indeterminate sentence) where a sentence of 25 years had been imposed in respect of an attempted murder. Reference was made to Elliot v HM Advocate 1996 GWD 31-154 (a firearms case, 20 years); HM Advocate v Murray 2004 SCCR 585 (the shooting of a policeman, 20 years); McLaren & Hynes v HM Advocate 1994 SCCR 855 (a firearms case, 15 years); Allan v HM Advocate 2009 JC 206 (14 years discounted to 12). It was accepted that the offence was a grave one. But it had not involved a firearm or an attack upon the administration of justice. A lower starting-point should have been selected.
Stage 2: stripping out the part representing the protection of the public
[17] The appellant was clearly a very dangerous man. Dr Darjee's risk assessment report had not been challenged. Reference was made to page 4 (section 3: Opinion on Risk Level) and page 32 (section 5: Conclusions). It might be that the appellant would never be released. But it was clear that the period representing the protection of the public was considerable: and that period required to be stripped out, so as to do justice as between determinate and indeterminate sentences, and to provide comparative justice in terms of when one could have access to the Parole Board (cf Petch & Foye cit sup). Reference was made to Alexander Reid v HM Advocate 2013 SCCR 70, paragraphs [17] to [19], where 6 years was stripped out to reflect the protection of the public. The present appellant might be seen to present a similar level of risk, and a similar period might be thought appropriate.
Stage 3: taking account of the early release provisions applicable to determinate sentences
[18] As Lord Reed explained in Ansari v HM Advocate 2003 JC 105 (subsequently approved in Petch & Foye cit sup), the general rule was that the early release calculation involved taking one half of the notional sentence. In paragraphs [82] to [84] of Ansari, Lord Reed recognised certain exceptions to the general rule. He identified situations where the application of the general rule would result in an unfair advantage to an indeterminate prisoner. Accordingly in such cases the calculation should involve taking more than one half of the notional sentence. But it was submitted that any such adjustment was restricted by the goal of achieving comparative justice. Thus in the present case, the appellant had served just short of 2 years of a 3 year sentence. He was released and out of prison for one month when he committed the index offence. There had been no recall or return orders in terms of sections 16 and 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, but the "unexpired portion" of his sentence was nevertheless 11 months at that stage. Applying the guidance in paragraphs [82] to [84] of Ansari, it had to be accepted that it was highly likely that, had there been a determinate sentence, the appellant would also have had to serve that 11 months unexpired portion prior to any new determinate sentence. Counsel therefore invited the court to adjust the one half approach only to the extent of adding on 11 months to the one half portion.
[19] It was accepted that a different approach had been adopted in Alexander Reid v HM Advocate, cit sup. But Reid was a highly unusual case, for several reasons: (i) had the offender in that case not been misdiagnosed, he would have been convicted of murder (attracting a life sentence, in which case Petch & Foye would not apply); (ii) as the offender had served about 40 years in custody, the punishment part was of no importance, and counsel had made no submissions on the matter; (iii) the appeal court had issued guidelines about knife murders (which was what occurred in Alexander Reid) indicating that the appropriate discount for such murders was one-sixth: but when Alexander Reid had been sentenced in 1967, the procedure of discounting for early pleas (section 196 of the Criminal Procedure (Scotland) Act 1995) was not available. Alexander Reid was therefore an unusual case and should be distinguished.
[20] The Scottish Parliament had recognised that anomalies could occur when applying the approach in Petch & Foye, and had responded by legislating (the Criminal Cases (Punishment and Review) (Scotland) Act 2012). However that Act did not apply in the present case. No doubt the Crown would suggest that the court should, at Stage 3, take into account the gravity of the offence and/or the previous convictions: but to do so would be double-counting, and would fall foul of Petch & Foye and seek to replicate what the majority did in Ansari.
Stage 4: discounting by 20 per cent to reflect the early plea (section 196 of the 1995 Act)
[21] If X was the figure selected as the starting-point (stage 1), then the ensuing calculations would be X - 6 (stage 2) x 1/2 plus 11 months (stage 3) less 20 per cent for the early plea in terms of section 196 of the 1995 Act (stage 4).
Submissions for the Crown
[22] The advocate depute accepted the general approach outlined by counsel for the appellant. Petch & Foye v HM Advocate cit sup stated the law "as it always was". Accordingly this court should adopt the four-stage approach outlined by Miss McCall. It was agreed that it was not open to the court to apply the new legislation.
[23] The Crown had researched some cases for the purposes of comparative justice. Sentences imposed in cases of culpable homicide had tended to be at the level of 12 to 14 years. One case not yet cited was Munsen v HM Advocate 1997 GWD 3-106. There an indeterminate sentence had been imposed for attempted murder, and had not been overturned on appeal. Only the more serious offences attracted such indeterminate sentences. A judge imposing an order for lifelong restriction would have decided that an extended sentence was not sufficient for public protection, and it seemed illogical to strip out the element for public protection.
[24] Finally, the advocate depute advised the court that the unexpired portion of the appellant's sentence was in fact 17 months (not 11 months).
Discussion
[25] In our opinion, the appellant is a very dangerous man. His pattern of offending, and the assessment of the risk which he presents to the public as set out in Dr Darjee's report, are such that the Parole Board will undoubtedly be very cautious when contemplating his release into the community. As stated in Dr Darjee's conclusions, the appellant would require "24 hour surveillance to prevent serious violence towards a woman". Even with such surveillance, the appellant appears to be able to mask his emotions, thoughts, and plans such that it might be difficult for supervising staff to notice any warning signs of imminent offending. It is possible that the Parole Board, with the protection of the public foremost in mind, may never be in a position to consider his release into the community, even with the most intensive supervision.
[26] It is the duty of this court to consider whether the appellant's punishment part should be reduced, notwithstanding the major risk which the appellant presents to the public. As will be seen from what follows, at the time when the appellant was sentenced, the law relating to the fixing of punishment parts was such that this court cannot but acknowledge the correctness of the SCCRC's referral and the force of counsel for the appellant's submissions that the current punishment part of 20 years cannot stand. We emphasise, however, that whatever punishment part is substituted, it does not follow that the appellant will be released into the community once that punishment part has expired. On the contrary, the punishment part simply indicates the earliest date at which the appellant will be entitled to require that his case be referred to the Parole Board. It will be for the Parole Board, assessing all the circumstances and all the risks, and giving priority to the protection of the public, to decide whether (if ever) the appellant might safely be released into the community, and if so, when, and under what conditions.
[27] That said, we turn to consider the submissions made by counsel.
[28] As the guidance given in Petch & Foye v HM Advocate cit sup applies to past sentencing decisions, we accept that the four-stage approach outlined by counsel for the appellant should be adopted. (The sentencing judge in 2006 did not of course have the benefit of the guidance in Petch & Foye.)
[29] Taking each stage in turn:
Stage 1: identifying the notional determinate sentence
[30] There are no compulsory sentencing guide-lines in Scots law for the crime of attempted murder. Each case must turn on its own facts. The sustained and brutal attack on a defenceless tourist, all as described in paragraphs [9] and [11] above, was a very grave offence, especially when taken with the appellant's history of offending, the fact that he had only just been released from a sentence for an earlier analogous offence, and the fact that he was the subject of a sexual offences prevention order, a supervised release order, and a restriction of liberty order. In all the circumstances the offence would attract a determinate sentence at the very top of the range. We consider that a notional determinate sentence of 21 years would not, in the circumstances of this case, be excessive.
Stage 2: stripping out the part representing the protection of the public
[31] We accept that six years of the 21 years would be a reasonable estimate of the element necessary for the protection of the public: cf Alexander Reid v HM Advocate 2013 SCCR 70. That results in a figure of 15.
Stage 3: taking account of the early release provisions applicable to determinate sentences
[32] We refer to paragraphs [82] to [84] of Ansari v HM Advocate 2003 JC 105, approved in Petch & Foye v HM Advocate cit sup. We agree with counsel for the appellant that those paragraphs envisage a departure, in certain circumstances, from the general rule that a fraction of one-half should, in general, be applied to reflect the early release provisions applicable in determinate sentences. In our opinion, the present case does fall outwith the general category of cases, as the appellant had an unexpired portion of a previous sentence amounting to 17 months, which he would in all probability have had to serve, whether in terms of section 16 or section 17 of the 1993 Act. A return order in terms of section 16 does not run from the date of the new offence, but rather from the date when the authorities succeed in bringing the repeat offender back to court to have his new offence assessed and the extent of his return order decided: section 16(2)(a)(i) of the 1993 Act, and Barr v HM Advocate 1997 SLT 1004 at page 1006E-F. That, in our view, weighs against the rather precise arithmetical approach advanced by counsel for the appellant (namely one-half of 15 - 71/2 - plus 17 months). We consider that the unexpired portion of 17 months, and the possibility that a section 16 return order would only be imposed some time after the new offence, entitles this court to round up the figure of 71/2 to 10.
Stage 4: discounting by 20 per cent to reflect the early plea (section 196)
[33] The sentencing judge discounted the punishment part by 20 per cent to reflect the appellant's plea. There was no dispute that the same discount should be applied in this appeal. Applying a discount of 20 per cent to 10 years results in a figure of 8 years.
Decision and final comment
[34] For the reasons given above, we allow the appeal to the extent that we quash the punishment part of 20 years and substitute therefor a punishment part of 8 years.
[35] In view of the extremely dangerous nature of the appellant, we have reached this conclusion with great reluctance. We note again that, on the expiry of the punishment part of 8 years, the appellant will not automatically be released, but will only be entitled to have his case referred to the Parole Board who will have to assess matters with the protection of the public as their foremost priority. We would also add that it was unfortunate that the legislation introduced by the Scottish Parliament (following judicial comment in Petch & Foye v HM Advocate cit sup), namely the Criminal Cases (Punishment and Review) (Scotland) Act 2012, was not available to the court in the present case.