Robert Foye v. Her Majesty's Advocate [2011] HCJAC 94

Criminal Note of Appeal Against Sentence:- On 23 January 2008 the appellant pled guilty under accelerated procedure in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 to a charge of rape. On 1 October 2008, the court, being satisfied that the risk criteria were met, made an order for lifelong restriction under section 210F of the 1995 Act, and, in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, ordered that a period of nine years imprisonment should be served by the appellant before the provisions of sections 2(4) and 2(6) of the 1993 Act should apply. That sentence was ordered to run consecutively to the total period of imprisonment to which the appellant was already subject, namely a sentence of 10 years for a charge of attempted murder. The appellant appealed against the sentence of nine years as a punishment part. On 26 March 2009, the appeal came before a two-judge sentence appeal court when the court remitted the appeal to a bench of three judges to be heard along with the appeal of Morris Petch in order to revisit the issue of the formula for determining a punishment part of a discretionary life sentence. On 18 December 2009, the appeal came before a court constituted by three judges. The court, having heard counsel for the appellant and the Advocate depute, was satisfied that the submissions that had been made raised important issues in relation to the five-judge decision in Ansari v H.M.A. 2003 S.C.C.R. 347. It appointed the appeal to be heard by a bench of seven judges. On 1 March 2011, that court, by majority, overruled the decision of the majority of the court in Ansari. It decided, with Lord Osborne and Lord Emslie dissenting, that the approach of Lord Reed in that case to the interpretation of the provisions of section 2(2) of the 1993 Act, as amended, should be adopted by sentencing judges. The court then remitted the appeal to a court of three judges here for final disposal. Here the court considered the appeal against sentence having regard to the 7 judge decision of the appeal court in Morris Petch and Robert Foye v. H.M.A. [2011] HCJAC 20 to determine what the appropriate sentence should be. In the first place the court considered whether the sentencing judge was entitled to decide that the appropriate disposal was the selection of a discretionary life sentence. The court then went on to consider the three steps outlined by the Lord Justice General in Petch and Foye :- (1) the identification of a determinate sentence which notionally might have been imposed if a life sentence had not been; (2) exclude from that notional sentence any element for public protection; and (3) the exercise is that required by section 2(2)(aa)(iii) of the 1993 Act which will ordinarily involve taking half the figure brought out by the exercise up to that point to ascertain the appropriate punishment part. The court also considered two issues in relation to the discount applied:- (a) when the discount should be applied in the three steps noted above; and (b) the appropriate discount to be applied given the stage the plea was tendered and whether the maximum discount available should be similar to the maximum  available in murder cases , namely one-sixth(to a maximum of 5 years) as considered in H.M.A. v Boyle 2010 S.C.C.R. 103.