Scottish High Court of Justiciary Decisons

Notman v. Her Majesty's Advocate [2002] ScotHC 7 (15 February 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lady Cosgrove Lord Kingarth	Appeal No: C470/01 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL by JOHN EASSON NOTMAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: J. Barr; Bennett & Robertson

Respondent: Armstrong, Q.C., A.D.; Crown Agent

15 February 2002

1. In this note of appeal the appellant seeks to appeal against a discretionary sentence of life imprisonment imposed upon his conviction for rape on 25 June 1991 with a designated part of 15 years imposed in terms of a certificate granted on 29 October 1993 by Lord Justice General Hope in terms of paragraph 6 of Schedule 6 to the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act").
2. The appeal proceeds on two grounds. The first ground is that there has been a miscarriage of justice in that the designated part of 15 years specified in the Lord Justice General's certificate is excessive having regard to the matters which he was required to take into account in terms of section 2 of the 1993 Act as now interpreted following the decision of this court in O'Neill v. HMA 1999 SCCR 300.
3. Having regard to the terms of the certificate and, in particular, the fact that the Lord Justice General took into account that the trial judge was of the view that he would have imposed a sentence of at least 10 years' imprisonment if the appellant had had no previous relevant convictions, we are satisfied that in fixing the designated period at 15 years the Lord Justice General was not following the guidance set out in the subsequent decision of this court in O'Neill, that is to say, that having determined what was to be the punitive part of the sentence at 15 years, he had not then taken into account the purpose of the legislation and had failed to carry through the requirements of the decision in O'Neill in fixing within that sentence the period to be served before the appellant became entitled to be released on licence. For these reasons the certificate requires to be quashed and both the appropriate period for the determinate sentence and that part to be served before the appellant can be released on licence to be fixed of new, taking into account the guidance in O'Neill.
4. In the present case the Lord Justice General sets out the circumstances in which the appellant was convicted of rape and we do not rehearse them. It was a vicious and prolonged assault. Of particular moment is the fact that at the time of the offence the appellant was 27 years old and had numerous convictions for theft and other crimes of violence. In particular, nine years prior to the offence of which he was convicted, he had been sentenced to 2 years' detention for assault and sodomy. Three years later he was convicted of rape and of assault with intent to ravish for which he was sentenced to 9 years' imprisonment. He had been released from prison about 3 months prior to the date of the offence for which he was convicted on 25 June 1991.
5. In O'Neill the Lord Justice General referred to the factors to be taken into account in specifying the appropriate period while ensuring that the resulting period must be one which is concerned with punishment rather than with the protection of the public. He pointed out that there may be circumstances in which it would be appropriate for the court applying the appropriate statutory criteria to specify a period longer than half the equivalent determinate sentence though less than two thirds of that sentence. Looking to the circumstances of this case and in particular the fact of the appellant's prior record and the fact that this offence was committed so shortly after his release from a lengthy period of imprisonment for a similar offence, this case constitutes one which entitles the court to fix a period greater than one half of the equivalent determinate sentence in terms of the 1993 Act. We consider that a period of fifteen years is the appropriate determinate sentence leaving out of account the element of protection of the public, and that the minimum period that he should be required to serve as a punishment for the crime before he could be released on licence is a period of nine years.
6. The second ground of appeal relates to the fact that the original sentence of life imprisonment was not backdated as is now required in accordance with the decision in Elliott v. HMA 1997 SCCR 111. In the circumstances we shall quash the life sentence as imposed and substitute therefor a life sentence backdated to 3 January 1991.