John David McIntosh v. Her Majesty’s Advocate [2016] HCJAC 75

Note of appeal against sentence:- The appellant was convicted after trial at the High Court of Justiciary of four sexual offences (charges 1, 2, 6 and 9) from an indictment containing ten charges:- (a) charge 1 was a charge that between December 1996 and December 1997 the appellant repeatedly sexually assaulted and attempted to rape a nine year old girl; (b) charge 2 was a charge that between 1 January 1998 and 31 December 2001 the appellant raped his partner; (c) charge 6 was a charge that in 2002 the appellant repeatedly sexually assaulted and raped another woman; and (d) charge 9 was a charge that between 1 November 2002 and 31 December 2004 the appellant repeatedly raped a further woman. The sentencing judge, taking the view that the appellant could not be made the subject of an order for lifelong restriction in relation to the four charges, imposed a sentence of life imprisonment with a punishment part of 10 years on the basis that had he been imposing a determinate sentence he would have selected a figure of 20 years. The appellant appealed against the sentence imposed on the basis that an extended sentence which was available in relation to charges 6 and 9 would have met the requirements of punishment and deterrence and provided adequate protection of the public. It was further contended that in the event that the court took the view that the discretionary life sentence was appropriate the punishment part that was selected by halfing a determinate sentence of 20 years was excessive. When the case came before the court for an appeal hearing the court observed that in terms of the Criminal Justice (Scotland) Act 2003 (Commencement Number 9) Order 2006 (SSI 2006/332) which was made on 7 June 2006, and which allows an order for lifelong restriction to be imposed in relation to offences committed before 20 June 2006 where proceedings in relation to those offences are commenced after 20 June 2006, meaning that an order for lifelong restriction was competent in relation to charges 2, 6 and 9 as these were offences which came within the terms of the 2006 Commencement Order. The trial judge on being made aware of the competency of the imposition of an order for lifelong restriction indicated to the court in his report that he would have made a Risk Assessment Order and called for a Risk Assessment Report. A criminal justice social work report was called for by the appeal court in which the author concluded that the appellant was in the high risk category for offences of both sex and violence. In addition, the author concluded that on account of the level of denial, the nature and severity of the offending, the extended time period over which the offences took place and the previous convictions of the appellant which included a conviction at the High Court in 2007 for two offences under section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995 for which he was sentenced to seven years imprisonment, the court might consider the imposition of an order for lifelong restriction. Due to the court considering that the risk criterial under section 210B of the Criminal Procedure (Scotland) Act 1995 may be met the court made a Risk Assessment Order and called for a Risk Assessment Report to be prepared in relation to the appellant. A report was subsequently produced by Dawn Harris of the Risk Management Authority which concluded that the appellant presented a high level of risk to the safety of the public at large and there were few protective factors and long term risk management was required. The appellant’s agents instructed a report from Dr Ewan Lundie, a chartered forensic and clinical psychologist, which concluded that there was evidence of some of traits of psychopathy like superficial charm, lack of remorse, callousness and manipulation and some anti-social behaviour patterns like persistent and varied offending from a young age. On behalf of the appellant it was submitted that, whilst the conclusion was that the appellant presented as high risk, the court still had a discretion whether or not to impose an order for lifelong restriction and in so doing the court would look at the likelihood of serious endangerment when the offender was at liberty, taking into account what might be achieved by way of rehabilitation whilst in custody and the predicted effects of post release supervision. It was submitted on behalf of the appellant that an extended sentence would be sufficient to meet the risk and that the test in section 210A having been met the court might consider that an extended sentence would provide sufficient protection for the public and which could be imposed in relation to charges 2, 6 and 9. Here the court was satisfied that, on a balance of probabilities, the risk criteria were met and, in terms of section 210F of the 1995 Act, made an order for lifelong restriction. The court took the view that the risk presented by the appellant could not be adequately managed by the appellant being made the subject of an extended sentence. In selecting the appropriate punishment part the court began the calculation by selecting a determinate period of 20 years in relation to charges 2, 6 and 9 and subtracting 6 years for the element of public protection, leaving a period of 14 years for the purposes of punishment and deterrence resulting in a punishment part of 7 years. In relation to charge 1 the court imposed a determinate sentence of 9 years.