James Campbell v. Her Majesty’s Advocate [2019] HCJAC 85

Note of appeal against sentence:- On 29 January 2019, at a continued preliminary hearing at Glasgow High Court, the appellant pled guilty to a single charge of sexual assault and rape contrary to sections 1 and 2 of the Sexual Offences (Scotland) Act 2009. On 17 June 2019, following the obtaining of a Risk Assessment Report, the sentencing judge imposed an Order for Lifelong Restriction, with a punishment part of 3 years. The offence involved the rape of a 57 year old homeless lady in a Glasgow city centre lane. The incident was captured on CCTV and was played to the sentencing judge who described the offence as “...a violent and prolonged attack on a vulnerable woman ...”. The appellant had a significant history of offending including convictions for violence. The appellant appealed against the sentence imposed it being contended it was excessive and the imposition of the OLR was unnecessary as in-depth intervention programmes which had not yet been used on the appellant could address the consequences of his complex child trauma. The risk assessor had accepted that the appellant would pose a high risk of reoffending sexually unless he made substantive improvements in his approaches to various matters. It was submitted that the sentencing judge had failed to give adequate consideration to the possibility of a reduction in risk as a result of maturity and rehabilitation. It was submitted on behalf of the appellant that, whilst the offence was a serious one, it was not one which would ordinarily result in the imposition of an OLR. It was further submitted that it was the appellant’s first conviction for a sexual offence and the sentencing judge was in error in holding that no custodial or post-release supervision, short of an OLR, would have made a material impact on the appellant. The assessor had been of the view that the appellant may have been open to change and to completing in-depth programmes, however, no such interventions had taken place as no resources had been made available for them. As such it was submitted that the sentencing judge could not properly make a finding that in-depth rehabilitation work on the appellant would not have had a positive impact upon him whilst he served his sentence. In addition, the appellant had received no interventions for his underlying drug, alcohol and mental health problems. The court refused the appeal. The court considered that the sentencing judge had been entitled to conclude that it was unlikely that the appellant would engage in any rehabilitation programmes offered to him and, even if he did, it was unlikely he would respond positively to them. The court noted that the appellant had a history of non-compliance with court orders and that his response to any interventions had been minimal. The court reiterated that it is for the sentencing judge to decide whether the risk criteria, as defined in section 210E of the 1995 Act, are met in terms of section 210F. In doing so the sentencing judge must have regard to the Risk Assessment Report which categorises the risk which is posed as “high, medium or low”. The court highlighted that the sentencing judge in deciding whether to impose an OLR need not agree with the risk assessor’s view, however, the court observed that, since an OLR once made is not capable of review, a sentencing judge must be conscious of the demanding nature of the risk criteria. The court considered that the sentencing judge correctly applied the guidance provided in Ferguson v HMA 2014 SCCR 244 and JR v HMA 2017 SCCR 402 in predicting the risk posed by the appellant if he was to be made subject of a determinative sentence and the extent to which the appellant may be amenable to rehabilitation in custody and the effect of any post release supervision. In light of his age and his unwillingness to engage in future programmes the court considered that the sentencing judge was entitled to take the view that the risk the appellant would pose on release from a fixed custodial term (including any extended sentence) would be the same as that which he posed at the time of sentencing.