Scottish High Court of Justiciary Decisons

Wright v. Her Majesty's Advocate [2003] ScotHC 18 (2 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Marnoch Lord Reed Lord McCluskey	Appeal No. C139/02 OPINION of THE LORD JUSTICE CLERK in APPEAL by GAVIN RAYMOND WRIGHT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Gilchrist, Lothian; Bennett & Robertson

Respondent: Turnbull, QC, AD; Crown Agent

 

2 May 2003

1. On 23 September 1997 at Edinburgh High Court the appellant was convicted of the following charges:

"(1) On 1 June 1997 at Skibo Court, Dunfermline, you did assault [name], ... strike her on the head with a bottle or similar instrument, kick her repeatedly on the head, knock her to the ground, lie on top of her, pin her down, place your hand over her mouth in an attempt to prevent her crying out, place your hand around her neck, struggle with her, attempt to force her legs apart all to her severe injury and with intent to rape her; and

1. On 1 June 1997 at Skibo Court, Dunfermline, you did assault Stephen William Allan ... and punch him on the face and place your arm around his neck, all to his injury."

The appellant pled guilty to the second charge. He was convicted on the first charge after trial, and under deletion by the jury of the concluding words "and did attempt to rape her."

2. The trial judge sentenced the appellant to life imprisonment on charge (1) and made an order in terms of section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 that the "relevant part" of that sentence should be 12 years. He sentenced the appellant to three months imprisonment on charge (2), the sentences to run concurrently.
3. The ground of appeal is that there has been a miscarriage of justice in that the period of 12 years was excessive in view of the matters which the court was required to take into account under section 2 of the 1993 Act as it was interpreted by the appeal court in O'Neill v HM Adv (1999 SCCR 300). In essence the ground of appeal is that the period of 12 years should have been halved, that proportion having been said in O'Neill to be the norm, to reflect the early release provisions of the 1993 Act.
4. This appeal has been lodged in consequence of the decision in O'Neill. The Note of Appeal was lodged on 6 March 2002. By then, the legislation that applied at the date of the sentence had been amended significantly by the Crime and Punishment (Scotland) Act 1997 and the Convention Rights (Compliance) (Scotland) Act 2001.
5. This case is serious on its facts alone. The appellant came up behind the complainer in charge (1), who was a stranger to him, in a dark part of the street. He struck her behind the ear with a bottle. She fell to the ground. He then pulled her onto her back and lay on top of her, pinning her down. The complainer was terrified. She screamed and struggled violently. A number of nearby residents were alerted by her cries. The appellant put one hand over the complainer's mouth to try to silence her and the other at her neck, causing bruising to her neck. He tried to force her legs apart using his knee to press down on her thighs just above her knees. When he was lying on top of her, he ordered her to "just shut up" in a harsh, heavy whisper. She felt his breathing on her face and his weight on her body. He then got off the complainer and kicked her violently on the head and face a number of times. The complainer was bleeding heavily. The appellant turned to walk away just as the complainer in charge (2) and a number of others arrived on the scene. The complainer on charge (2) stopped the appellant and held him on the ground; but the appellant managed to get up and punch him on the face and put his arm around his neck.
6. The complainer on charge (1) was extensively injured. She had considerable bruising around her left eye. The left side of her face was extensively swollen. She had various injuries to her mouth, including a chipped tooth. She had a number of upper arm defensive injuries and a bruise on the inside of her left thigh. She had a gash behind her ear where she had been struck with the bottle. She subsequently suffered panic attacks and anxiety, and was afraid to go out alone. She experienced severe headaches and dizziness for several weeks.
7. The case was made even more serious by the appellant's criminal record. He had 11 previous convictions. Of these the following were the most significant. On 6 December 1984 at Dunfermline Sheriff Court he was convicted of assault with intent to ravish. He was sentenced to detention for eight months. That incident involved an attack on a former girlfriend. On 10 April 1989 the appellant was convicted at Edinburgh High Court of assault with intent to ravish. He was sentenced to three years imprisonment. That incident involved an assault on a woman who was unknown to him. He was released from that sentence in April 1991. Six weeks later, he committed a rape for which he was sentenced on 9 September 1991 at Edinburgh High Court to nine years imprisonment. Again the victim was unknown to him. On both of these occasions he had gone in search of a lone female to attack. The appellant was released on licence from this last sentence on 29 January 1997. The licence expired on the completion of two-thirds of the sentence, namely on 28 May 1997. Four days later he committed the present offence. All of these offences have involved a significant degree of violence. In the present case the attack came to an end when it did only because of the arrival of rescuers on the scene.
8. The trial judge was right in deciding that, because of the risk that the appellant presented to women, a discretionary life sentence was appropriate. In his report to the Parole Board, he explained his assessment of the relevant part as follows:

"In view of the gravity of the attack in charge 1, his record in general, his three previous convictions for serious sexual offences and the speed with which he has re-offended on the last two occasions of release from prison, I considered that the appropriate sentence in respect of charge 1 was 12 years, which is accordingly the relevant part of the sentence in terms of section 2(1) and (2) of the Prisoners and Criminal Proceedings Act 1993, after which subsections (2), (4) and (6) shall apply".

The trial judge has elaborated on that decision in his report. He says:

"I now have no detailed recollection of the approach I took on the day to the calculation of the figure of 12. I am fairly certain that the proposition in ground of appeal 1(a) is well founded and that I did not consider the starting point as 24 years. What I suspect that I did was to follow a course not dissimilar to that which I followed in O'Neill v HM Adv, 1999 S.C.C.R. 300. There I took the approach that I should have regard to the point at which the accused would be entitled to release on licence. In respect of a long term sentence that is at two-thirds. I suspect, therefore, that I may have had 18 years in mind. In O'Neill the Court made it clear that that was the wrong approach and that the designated part should be one half of the otherwise appropriate determinate sentence. In O'Neill I built into my calculation another factor that the Court considered was irrelevant. That was what I described as 'the general need to protect the public from random mindless violence and to deter the appellant and others from engaging in such conduct' (p. 306). Both at the time of imposing sentence in O'Neill and in the present case I intended to leave out of account any question of the particular risk posed by the particular accused. I did, however, have in mind (wrongly as it turned out) that the designated part should include the element that exists in most, if not all, sentences aimed at deterring those who might be so tempted from committing crimes of the nature in question. That was in line with English practice in which a 'penal' element was determined to reflect the requirements of 'deterrence and punishment' - cf Doody v Secretary of State [1993] 3 All E.R. 92. That approach has since been adopted in Scotland in section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 as amended by the Convention Rights (Compliance)(Scotland) Act 2001. It is, therefore, likely that in these two respects I erred in my approach to the determination of the designated part."

9. Counsel for the appellant submitted that, in view of O'Neill, the trial judge had erred, particularly in his failure to apply a reduction of fifty percent on account of the early release provisions in the 1993 Act. He invited us to reduce the 12 years period set by the trial judge to one half, or to whatever proportion we thought appropriate, and to backdate the sentence to 1 June 1997. This last point is not in dispute.
10. In view of the trial judge's uncertainty as to the basis of his decision, I consider that we should allow this appeal and look at the question of sentence afresh. In doing so we ought not, in my opinion, to take the trial judge's figure of 12 years for the "relevant part" and halve it as counsel for the appellant has proposed. We must apply the current legislation and fix a "punishment part." In its decision given today in Ansari, this court has set out the relevant provisions and the principles governing their application.
11. I would apply section 2(2) in this case in the following way. In view of the gravity of the sexual offence, the related offence of assault, the appellant's criminal record, and the fact that he committed this crime during the unexpired portion of a previous sentence, I consider that the notional determinate sentence, under exclusion of the risk element (cf. Ansari), should be 13 years. In deciding on that period, I proceed on the basis that the notional determinate sentence should reflect the idea of general deterrence as well as deterrence of the offender himself.
12. In view of the gravity of the case, I consider that, as in Ansari, a high proportion of that figure should be applied to reach the punishment part. I propose to your Lordships that we should allow the appeal to the extent of fixing the punishment part of the life sentence at a period of 9 years and of backdating the sentence to 1 June 1997.

 

Wright v. Her Majesty's Advocate [2003] ScotHC 18 (2 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Marnoch Lord Reed Lord McCluskey	Appeal No. C139/02 OPINION OF LORD KIRKWOOD in APPEAL by GAVIN RAYMOND WRIGHT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Gilchrist, Miss Lothian; Bennett & Robertson

Respondent: Turnbull, QC, AD; Crown Agent

2 May 2003

13. I am in full agreement with the Opinion of your Lordship in the chair and there is nothing I can usefully add.
Wright v. Her Majesty's Advocate [2003] ScotHC 18 (2 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Marnoch Lord Reed Lord McCluskey	Appeal No. C139/02 OPINION OF LORD MARNOCH in APPEAL by GAVIN RAYMOND WRIGHT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Gilchrist, Miss Lothian; Bennett & Robertson

Respondent: Turnbull, QC, AD; Crown Agent

2 May 2003

14. I agree in all respects with the Opinion delivered by your Lordship in the chair.
Wright v. Her Majesty's Advocate [2003] ScotHC 18 (2 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Marnoch Lord Reed Lord McCluskey	Appeal No. C139/02 OPINION OF LORD REED in APPEAL by GAVIN RAYMOND WRIGHT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Gilchrist, Miss Lothian; Bennett & Robertson

Respondent: Turnbull, QC, AD; Crown Agent

2 May 2003

15. The background to this case is set out in the Opinion of your Lordship in the chair, and I gratefully adopt your Lordship's account of these matters.
16. I have set out in my Opinion in the case of Ansari my views as to the principles which have to be applied in a case of this kind. The only observation I would wish to add, in the context of the present case, is that (contrary to the view expressed by the trial judge in his report to this court) it is in my opinion necessary that the punishment part of the sentence should satisfy the requirement of general deterrence. As the trial judge has noted, the court in O'Neill v. H.M. Advocate 1999 S.C.C.R. 300 made certain observations which might have been understood as suggesting that it was necessary to discount the ordinary level of sentence so as to "strip out" some notional element referable to the general consideration of the protection of the public, inherent in particular in general deterrence. That issue was, however, clarified in Murray v. H.M. Advocate 1999 S.C.C.R. 946, where Lord Justice Clerk Cullen, delivering the Opinion of the court, said (at page 954):

"It is plain in our view that the European Court had in mind that the punitive component included both retribution and deterrence, and that the same applies to the determination of the 'designated part' for the purpose of section 2(2) of the 1993 Act."

The amendments made to section 2(2) by the Convention Rights (Compliance) (Scotland) Act 2001, by expressly providing that the punishment part is to be such part of the sentence as the court considers appropriate to satisfy the requirements for retribution "and deterrence", make explicit the requirement to take general deterrence fully into account.

17. Applying the relevant principles (as I conceive them to be) to the present case, I do not take issue with your Lordships' view that an appropriate determinate sentence, ignoring any period of confinement necessary for the protection of the public, would have been 13 years. On that basis, the appropriate punishment period is in my opinion 61/2 years. In my respectful opinion, there is no legitimate basis for increasing that period on the ground that the gravity of the case calls for a longer period: the court has already taken full account of the gravity of the offence in selecting a notional determinate sentence of 13 years.
Wright v. Her Majesty's Advocate [2003] ScotHC 18 (2 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Marnoch Lord Reed Lord McCluskey	Appeal No. C139/02 OPINION OF LORD McCLUSKEY in APPEAL by GAVIN RAYMOND WRIGHT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Gilchrist, Miss Lothian; Bennett & Robertson

Respondent: Turnbull, QC, AD; Crown Agent

2 May 2003

18. Having regard to the gravity of the case, I agree that the appeal should be disposed of as proposed by your Lordship in the chair.