Scottish High Court of Justiciary Decisons

PHILIP PAUL LUMSDEN v. HER MAJESTY'S ADVOCATE [1999] ScotHC 68 (16th March, 1999)

This is the appeal of Philip Paul Lumsden who was sentenced to life imprisonment on a charge of abduction and sodomy with an order under section 2(2) of the Prisoners and Criminal Procedures (Scotland) Act 1993 that a minimum period of twelve years should be served before consideration of release.

The circumstances of the offence are set out in the sentencing Judge's report. Put briefly, they are to the effect that the complainer was a 16 year old boy who was returning home about 10.00pm. The appellant approached him, grabbed him round the neck and placed a knife at his throat. He then frog-marched the complainer to a house and took the complainer up to the bedroom there. In the bedroom the complainer had his hands tied behind his back, had his clothing removed and was then subjected to anal intercourse. The matter is dealt with in much more detail in the trial Judge's report but it is not necessary to go into more detail for present purposes.

It is clear from the Judge's report that the offence has had a devastating effect on the complainer. The Judge tells us that he took two factors into account in deciding that a life sentence was appropriate, being the seriousness of the present offence and the appellant's previous convictions.

The seriousness of the offence goes without saying. As far as the appellant's previous convictions are concerned there are a substantial number which relate to sexual offences. In 1978 when he was still only 14 years old he was sentenced to detention for two years on a charge of assault with intent to ravish; then in 1980 a conviction for indecent assault; in 1981 assault, indecent assault and abduction; and in 1984 sentenced to imprisonment for three years on two charges of indecent assault. In London in 1993 he was convicted of manslaughter and sentenced to imprisonment for six years, and it appears that that arose out of the stabbing of a man whom the appellant had met in a gay night club.

Miss Scott, on the appellant's behalf today, has accepted that a life sentence was appropriate having regard to the factors identified by the sentencing Judge and no appeal is now taken against that part of the sentence. She did however attack the order that twelve years should elapse before consideration is given to release. She said, in the first place, that twelve years was too long for what could be called the punitive element in this matter. The appellant gave a full and detailed confession to the police, even though he played the matter down when he was talking to the psychiatrist Dr Baird. His pattern of offending is of course serious but there is a gap between 1984 and 1991, and the 1993 conviction for manslaughter, although it has a background of homosexual activity, is in no way analogous. The psychiatric report indicated that the appellant had a very disturbed background and was now virtually institutionalised and requires intensive support. The appellant has a positive attitude in that he now is seeking a transfer to Peterhead Special Unit and is prepared to accept that he needs treatment and will receive treatment. In these circumstances Miss Scott submitted that the twelve years for the punitive element alone was too long. Miss Scott did not suggest that the trial Judge had wrongly taken into account the element of protection of the public in deciding upon this period and it is clear from the Judge's report that he did only have in mind the seriousness of the offence and the previous convictions which are the two relevant matters set out in section 2(2).

In our view having regard to the gravity of the offence and the appalling record of the appellant, we are quite unable to say that a period of twelve years would be an excessive element for the punitive part of this sentence. It is quite clear that this very serious assault has had a very serious effect upon the complainer, and it is quite clear that it follows as part of a pattern from the appellant's previous convictions. Accordingly, we would support the sentencing Judge's period of twelve years as being the correct part of the sentence for the punitive element.

However, since this sentence was imposed this Court in the case of O'Neill v HMA has considered in detail the proper interpretation of section 2(2) of the 1993 Act. As was made clear in the case of O'Neill the sentencing process under section 2(2) has to take place in two stages. The first stage is to consider what would be the appropriate sentence having regard to the gravity of the offence and the previous convictions but ignoring the element of protection of the public which is a matter to be dealt with by the Parole Board. As we have already indicated, the period of twelve years is appropriate at that stage. The second stage, however, is to consider at what time the appellant would be entitled to require his case to be referred to the Parole Board for consideration. At present Parliament has said that that period is one-half of the sentence. Accordingly, under section 2(2) the minimum period to be ordered can only be one-half of the punitive sentence because it is at that stage that the appellant is entitled to have his case referred to the Parole Board for consideration.

What we shall do, accordingly, in this case is to quash the order made by the sentencing Judge and substitute an order that six years be served before the process of consideration for release can be initiated.