APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: XC47/04
OPINION OF THE COURT
delivered by LORD OSBORNE
NOTE OF APPEAL
in terms of Sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995
THE LORD ADVOCATE
PAUL FRANCIS MURRAY
Appellant: Murphy Q.C., A.D.; Crown Agent
Respondent: Finnieston, Solicitor Advocate; J. R. Wallace, Solicitors, Glasgow
20 August 2004
The Background In this matter, the Lord Advocate appeals against a sentence passed on the respondent on his conviction, following a plea of guilty to charges (1) and (3) in the indictment which he faced, under section 108 of the Criminal Procedure (Scotland) Act 1995, upon the ground that the disposal was unduly lenient. Charge (1) was in the following terms:
"On 20 July 2003 at Shettleston Police Office, 1051 Shettleston Road, Glasgow, you did assault John Cunningham, Constable, Strathclyde Police, c/o Shettleston Police Office, Glasgow, then in the execution of his duty and discharge a firearm at him and shoot him on the body to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and did attempt to murder him; you did commit this offence while on bail, having been granted bail on 26 November 2002 at Dumbarton Sheriff Court and on 20 February 2003 at Glasgow Sheriff Court."
Charge (3) in the indictment was in these terms:
"Between 15 July 2003 and 20 July 2003, both dates inclusive, at Shettleston Police Office, 1051 Shettleston Road, Glasgow and Flat 2/1, 124 Pendeen Road, Barlanark, Glasgow, you did have in your possession without the authority of the Secretary of State or Scottish Ministers, a prohibited weapon, namely a double barrelled shotgun, being a firearm which has a length of less than 60 centimetres overall: CONTRARY to the Firearms Act 1968, section 5(1)(aba) as amended by the Firearms (Amendment) Act 1997; you did commit this offence while on bail, having been granted bail on 26 November 2002 at Dumbarton Sheriff Court and on 20 February 2003 at Glasgow Sheriff Court."
"He remains at a loss to explain his actions and I found no rational explanation for the crime other than the anti-social behaviour of a substance dependent and confused young man existing on the fringes of society and who may harbour negative sentiments towards the Police. I note that he had been detained within Shettleston Police Office on several previous occasions and he may have been directing his frustration over his position in life and lack of opportunity towards the Police. He initially told me that he had no reason to be at the locus before conceding that 'I had been arrested and in the cells there (within Shettleston Police Office) since 13 or 14'."
In relation to clinical risk assessment, Mr MacPherson adopted what he described as a structured clinical approach. In his lengthy Report he set out his findings in detail. Although the respondent had no previous convictions for violence and there was no compelling evidence of any significant violent incidents during childhood or young adulthood, the nature and severity of the shooting itself had to be considered as significant "with respect to the risk of recidivism" (paragraph H1, page 6). In his summary and conclusions he offered the opinion that the respondent "would present a moderate to high risk if he were to be released from prison at this time without further intervention or support ..." (paragraph No. 3). He also expressed the view that the respondent would require to be monitored in the community over the medium term following release. In his Note of Appeal the appellant sets forth the following grounds of appeal:
"The trial judge erred in failing to have sufficient regard to the following factors:
(1) The offence was a premeditated one;
(2) It was committed using a firearm;
(3) The victim was a police officer acting in the execution of his duty;
(4) The offence was committed in a police station;
(5) There were no mitigating factors nor mitigating explanation with regard to commission of the offence; and
(6) The convicted person presents as a moderate to high risk of further offending.
Submissions When this matter came before us, the Advocate depute elaborated the appellant's grounds of appeal. He emphasised the premeditated nature of the offence, demonstrated by the way in which it had been committed, which involved two separate visits to the police office, closely related in time. It was to be supposed that the respondent had taken possession of the gun in the close, to which he had gone after his first visit to the police office. The firing of the gun at the complainer was a quite deliberate act. The gravity of the offence of attempted murder was rendered the greater by the fact that a firearm had been used. In addition, it had to be noted that the weapon involved was not simply a firearm but was a prohibited weapon, exemplified by the contents of charge (3). A further aggravating feature of the offence was that it had been committed against a police officer, who was on duty at the material time, being in a vulnerable position at a desk in the office where he worked. There was plainly a need for police officers to be adequately protected by decisions of the courts. The police had to have confidence that court decisions would, so far as possible, achieve that end. Thus a deterrent sentence was necessary in a case of this kind. A further aggravating feature was that the attack on the complainer had occurred within a police station, which was designed to be open to members of the public. Finally, it had to be recognised that the consequences of the assault upon the complainer had been severe, as disclosed in the details given in the Report of the sentencing judge. It was unlikely that the complainer would return to work as a police officer. His life had been very seriously damaged by the experience to which he had been exposed. In short, it was submitted that the aggravating features of the offence, to which charge (1) related, placed it at the very top of the scale for this kind of offence. It would be difficult to conceive of a more grave case of attempted murder.  The Advocate depute went on to submit that there was a lack of mitigating factors in this case. There was no real explanation for the commission of the offence. If it were the case that, prior to its commission, the respondent had been consuming drink and controlled drugs, that did not constitute a mitigating factor. The only significant mitigating factor was the circumstance that the respondent had pled guilty to the two charges concerned.  The Advocate depute went on to refer to the contents of the several reports, which we have mentioned. He submitted that it had to be noted that the respondent had in fact been on probation at the time of the commission of the offences. It was a matter of great concern that the professional opinion was that the respondent presented a moderate to high risk to the public, if he were to be released at the present time. One of the most worrying features of the case, argued the Advocate depute, was that the respondent had appeared to have an animus against the police, which emerged from the clinical psychology report, but there was no rational explanation for the commission of the offences. The Advocate depute did not go so far as to submit that only an indeterminate sentence would have been appropriate in the present case. It might be that a more lengthy determinate sentence would have been appropriate.  The Advocate Depute drew our attention to Bell v H. M. Advocate 1995 S.C.C.R. 244, which set out the general criterion by which it had to be judged whether a sentence was or was not unduly lenient. That criterion was well known. The question was whether the sentence fell within the range of sentences reasonably available to the sentencing judge. He also referred to MacLaren and Hynes v H. M. Advocate 1994 S.C.C.R. 855, a case of attempted murder by shooting, in which a sentence of fifteen years imprisonment had been sustained. The appeal against sentence in that case had been refused because of the grave nature of the offence. It had to be noted that the appellant MacLaren did not personally use the gun involved in the commission of the offence. In that respect, the circumstances of that case were less grave than those of the present; and also for the reason that the various aggravations already referred to were not present. Finally, the Advocate depute referred to Elliot v H. M. Advocate 1996 G.W.D. 31-1854, a case of attempted murder by shooting. Sentences of twenty years imprisonment had been imposed on the three participants, although only one had used the gun involved. The crime in that case had been premeditated, but did not have the aggravating features present here. The researches of the Advocate depute indicated that there was no case identical with the circumstances of the present one. Against this background, the sentencing judge's starting point of twelve years detention, which he had discounted to ten in respect of the plea of guilty, was unduly lenient. Because of the various aggravations of the offence and the high risk presented by the respondent, the sentencing judge should at least have given consideration to the imposition of an indeterminate sentence, with a substantial punishment part. If it were considered that a determinate sentence was appropriate, it should have been in excess of eighteen to twenty years.  Mr Finnieston, appearing for the respondent, observed that the case was unique and bizarre. For that reason it had to be looked at on its own. The sentencing judge had taken into account all of the relevant factors. Accordingly the argument for the Crown was that he had given inadequate weight to some or all of those factors. There was no issue as to the criterion which had to be applied, with a view to deciding whether or not the sentence was unduly lenient. The sentencing judge had given careful consideration to the matter and had recognised the risk to the public presented by the respondent by the imposition of an extended sentence with a substantial extension period. While another judge might have reached a different view, it was submitted that the sentence imposed was not unduly lenient. It could not be said that the sentencing judge had not properly informed himself before selecting a sentence; he had obtained all of the reports which were appropriate. An appropriate consideration in the present case was that the respondent had pled guilty to the offences concerned and that recognition had to be given to that circumstance. In that respect the present case differed from the cases relied upon by the Crown.
Decision We have come to the conclusion that the sentence imposed by the sentencing judge on charge (1) of the indictment was unduly lenient within the meaning of section 108(2)(b)(i) of the 1995 Act. The crime of attempted murder can only be seen as a very serious one. The various aggravating features present in this case render the crime one of the utmost gravity. Indeed, it would be difficult to conceive of a case of attempted murder more grave than that involved here. Of importance in this context is the undoubted fact that the offence was premeditated. The conduct of the respondent shortly before the shooting demonstrates that fact beyond doubt. On his first visit to the police office he was not in possession of the shotgun, but when he returned a short time later he was. Plainly he must have brought the gun to the vicinity in pursuit of his purpose, then examined the location itself and subsequently retrieved the gun, which he proceeded to use in the manner described. However, perhaps the most serious features of the present case are the circumstances that the firearm, a prohibited weapon, was used to commit the offence against a police officer then performing his duty in a police office. The unlawful use of prohibited weapons must be seen as a matter of the greatest gravity. The use of such weapons against a police officer performing his duties in a police office designed to provide ready access by members of the public to the police service is a matter of extreme gravity. We consider that it is the duty of any court dealing with offences of this character to keep prominently in mind the need to deter others from such quite appalling behaviour. A further factor of great concern, in our view, is the circumstance that no real explanation has been given for the respondent's conduct. It appears that he may have had some general animus against the police at Shettleston Police Office, but there is nothing to suggest that he had any reason to mount an attack upon the complainer involved in this case. His assault upon him must therefore be seen as an utterly callous act, reflecting no normal human concern for the interests of others. Finally, in this connection, we regard the assessment of the risk presented by the respondent as of great importance. That risk is the subject of assessment in the Supplementary Social Enquiry Report, dated 16 December 2003. It is inferred from the attitude of the respondent to authority that he presented a risk to society at this time. Furthermore, the use of the particular risk assessment tool there mentioned indicated that the respondent was a high risk. Concern regarding the risk presented by the respondent is confirmed by the contents of the Forensic Clinical Psychology Report by Mr MacPherson, dated 18 December 2003. He considered that the respondent presented with many risk factors for future violence, including his young age at the first violent incident, his relationship instability, his education and employment problems, the history of alcohol and substance dependence, early maladjustment and his failure to comply with conditions of bail on several occasions. The author of that Report considered that the respondent's level of risk would vary as a function of his situation. He expressed the view that he would present a high level of risk if he found himself in circumstances analogous to the index crime with respect to his dependence on substances and association with anti-social peers.  In all these circumstances we consider that, while the sentencing judge did carefully consider all the relevant factors, his judgment regarding the sentence to be imposed fell outwith the range of sentences reasonably available to him in the particular circumstances of this case.  In the light of our conclusion, we have decided to quash the sentence imposed on charge (1) of the indictment by the sentencing judge and, in its place, to pass a sentence of life imprisonment which will be ordered to run from 24 July 2003, the date on which the respondent was first remanded in custody in connection with this matter.  Having announced our decision to the foregoing effect, we then heard submissions from Mr Finnieston regarding the assessment of an appropriate punishment part in relation to the life sentence. He referred to Ansari v H. M. Advocate 2003 S.C.C.R. 347 and, in particular to the observations of the Lord Justice Clerk at page 356 regarding the approach to be followed in selecting a punishment part where a discretionary life sentence was being imposed. He submitted that the starting point of the process was the selection of a notional determinate sentence, which might have been selected upon the basis that a discretionary life sentence had not been imposed. He submitted that a sentence of eighteen years detention would have been appropriate, in the light of the youth of the respondent and his lack of any serious criminal record. From that figure would require to be deducted a discount to reflect the plea of guilty offered and accepted in this case. An appropriate discount would reduce the figure to one of fifteen years. The next step in the process was to deduct the element reflecting risk to the public, forming part of such a sentence. It was submitted that, in that connection, the sentencing judge had regarded the five year extension period as reflecting the need for the protection of the public from risk. It would be appropriate to use that figure at this stage of the process. If there were done, a figure ten years detention would be reached. The final step in the exercise was to reflect the arrangements for early release of prisoners from detention. Mr Finnieston accepted that it might reasonably be expected that the respondent would require to have served two-thirds of any determinate sentence before release. If that approach were adopted, the figure arrived at as a punishment part would be in the region of six years.  In reaching a conclusion as to the appropriate punishment part in this case, we must follow the approach required by statute and explained by the Lord Justice Clerk at pages 356-358 in Ansari v H. M. Advocate. Following that approach we consider that, had a discretionary life sentence not been imposed in this case, a determinate sentence of not less than twenty years would have been appropriate, in all the circumstances. From that figure would require to be deducted a discount for the plea of guilty which was accepted in this case. In the light of the circumstances and, in particular, the strength of the case against the respondent, which included the availability of DNA evidence derived from the firearm, we consider that a discount of two years would have been appropriate for that purpose. As regards the risk element to the public reflected in that notional sentence our conclusion is that a period of three years might reasonably be seen as reflecting that element. Thus a figure of fifteen years is arrived at. Turning next to the impact of the statutory provisions regarding early release from a determinate sentence, we consider that the respondent might reasonably have been expected to have been released after serving two-thirds of such a sentence. By these means we arrive at a figure of ten years, which we consider to be an appropriate punishment part in this case, prior to the expiry of which the respondent cannot apply to the Parole Board for review of his case.