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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Hamilton v. Her Majesty's Advocate [2005] ScotHC HCJAC_44 (22 March 2005)
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Cite as: [2005] ScotHC HCJAC_44, [2005] HCJAC 44
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Hamilton v. Her Majesty's Advocate [2005] ScotHC HCJAC_44 (22 March 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY | |
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Lord Justice Clerk Lord Hamilton Lord Sutherland
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[2005HCJAC44] Appeal No: XC480/03 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST SENTENCE by MARTIN JOSEPH HAMILTON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the Appellant: Jackson QC, Miss Mason; Berry & Co, Cumbernauld
For the Respondent:
McConnachie AD; Crown Agent22 March 2005
Introduction
[1] On 3 November 2000, at the High Court at Inverness, the appellant was convicted of the following charges:
"(1) on various occasions between 17 December 1999 and 16 February 2000, both dates inclusive, at 3/3 Broomhouse Wynd and the Parkview House Hotel, 14 East Hermitage Place, all Edinburgh and elsewhere, you MARTIN JOSEPH HAMILTON did assault Billy Ming Chan ... repeatedly threaten him with violence and punch him on the head to his injury;
(2) on an occasion between 1 November 1999 and 8 January 2000, both dates inclusive, at 11 Broomhouse Bank, 11/5 Dickson Street, Leith, and elsewhere you MARTIN JOSEPH HAMILTON did assault Jason Barry Inglis ... force said Billy Ming Chan to punch him on the head, hold a knife against his neck, threaten to kill him and place him in a state of fear and alarm for his safety;
(7) on 27 March 2000 at 14/5 Glenalmond Court, Edinburgh you MARTIN JOSEPH HAMILTON and DAVID CHRISTOPHER HENDERSON, while acting with another, did assault David Charles Denny ... repeatedly punch and kick him on the head and body, repeatedly threaten to slash and stab him, present a knife at him, attempt to cut off his finger with a knife or similar instrument, all to his injury;
(8) on 27 March 2000 at 14/5 Glenalmond Court, Edinburgh you MARTIN JOSEPH HAMILTON and DAVID CHRISTOPHER HENDERSON, did while acting with another, assault Colin Kevin O'Reilly ... seize hold of his clothes and pull him, push his head back and repeatedly insert a spoon into his eye socket, strike him on the head with an unknown instrument, seize hold of his head back and hold it against the flame of an ignited cigarette lighter, set fire to his hair, repeatedly strike him on the head and body with a carpet sweeper or similar instrument, all to his injury and did rob him of a quantity of money;
(9) on 27 March 21000 at 14/5 Glenalmond Court, Edinburgh you MARTIN JOSEPH HAMILTON and DAVID CHRISTOPHER HENDERSON did while acting with another, assault Graeme Patterson ... repeatedly strike him on the head with a piece of wood, repeatedly punch and kick him on the body all to his injury, threaten to slash him, force him to kneel on the floor and lick shoes, repeatedly demand money and controlled drugs from him and rob him of a quantity of money;
(11) between 1 August 1999 and 27 March 2000, both dates inclusive, at 3/3 Broomhouse Wynd and 14/5 Glenalmond Court, both Edinburgh, at Glasgow and elsewhere you MARTIN JOSEPH HAMILTON were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part I of Schedule 2 to the aftermentioned Act, to another or others, and in particular to Jason Barry Inglis, Colin Kevin O'Reilly, David Charles Denny and Billy Ming Chan ... in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b);
(15) between 1 November 1999 and 27 April 2000, both dates inclusive, at 3/3 Broomhouse Wynd, Edinburgh and at Flat C3, 52 St. Vincent Terrace, Glasgow and elsewhere you MARTIN JOSEPH HAMILTON were concerned in the supplying of a controlled drug, namely Diazepam, a Class C drug specified in Part III of Schedule 2 to the aftermentioned Act, to another or others, and in particular to Gary Thomas McConnell and Martin Jamie MacCowan ... in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b);
(16) on 26 April 2000 at Flat C3, 52 St. Vincent Terrace, Glasgow you MARTIN JOSEPH HAMILTON did assault Gary Thomas McConnell ... and punch him on the head to his injury;
(17) on 26 and 27 April 2000 at Flat C3, 52 St. Vincent Terrace, Glasgow you MARTIN JOSEPH HAMILTON and MARTIN MYLES BYRNE did abduct and assault Ronald Bonner ... detain him there against his will, threaten to take him away in a van, repeatedly punch and kick him on the head and body, force him to enter a bathroom there and to climb into a bath, force him to remove his top, repeatedly stab him on the face with a knife, force him to enter a cupboard there and confine him in said cupboard, repeatedly pour boiling water over his head and body, hold a knife against his neck and repeatedly racially abuse him, all to his severe injury and permanent disfigurement and it will be proved in terms of Section 96 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated;
(18) on 26 and 27 April 2000 at Flat C3, 52 St. Vincent Terrace, Glasgow you MARTIN JOSEPH HAMILTON and MARTIN MYLES BYRNE did abduct and assault Kirsten Williams ... detain her there against her will, seize hold of her hair, pull her to the floor, repeatedly punch and kick her on the head and body, threaten to have her taken into the Campsie Hills and buried, force her to enter a bathroom there and to climb into the bath, force her to remove her top, hold her head against a wall, stab her on the face with a knife, force her to enter a cupboard there and confine her in said cupboard, repeatedly pour boiling water over her head and hold a knife against her neck and threaten to kill her, all to her severe injury and permanent disfigurement;
(20) on 26 and 27 April 2000 at Flat C3, 52 St. Vincent Terrace, Glasgow you MARTIN JOSEPH HAMILTON did abduct Claire Murphy ... and did confine her there against her will;".
The trial judge, Lord Kingarth, sentenced the appellant, in respect of all of the charges save charge 15, to life imprisonment with a punishment part of 9 years. On charge 15 he passed a concurrent sentence of 3 years imprisonment.
[2] The appellant was then aged 39. He appeals against the life sentence on the ground that the trial judge should have imposed an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act).
The facts
[3] The charges set out numerous acts of violence carried out with extreme cruelty against vulnerable victims, the abduction of a female victim and the supplying of controlled drugs. The complainer on charge (1) was a 20 year old man who had resisted the appellant's homosexual advances and offers of money for sex. The complainer on charge (2) was a heroin addict who was unable to repay a loan given by the appellant on extortionate terms. The complainer on charge (7) was a youth for whom the appellant had a sexual obsession that the complainer had repelled. That complainer and two of his friends, the complainers on charges (8) and (9) respectively, were given sadistic beatings by the appellant's co-accused David Henderson in the presence of the appellant and on the appellant's orders. On charges (11) and (15) the evidence showed that for several months the appellant was concerned in the supply of heroin and valium, apparently by controlling younger dealers. The complainers on charges (16), (17), (18) and (20) were young people with drug problems who lived in homeless persons' accommodation. Three of them, Ronald Bonner, Kirsten Williams and Claire Murphy, had gone to a flat at which the fourth, Gary McConnell, was being detained by the appellant. The appellant let them in and then assaulted Gary McConnell. The other complainers were then assaulted in the manner libelled, either by the appellant himself or by his co-accused Martin Byrne on his orders.
The accused's record
[4] The accused had 13 previous convictions of which the most significant were a conviction in the High Court in 1984 of assault to severe injury and permanent disfigurement, for which he was sentenced to 6 years imprisonment, and a conviction in the High Court in 1992 of conspiracy to rob, for which he was sentenced to 9 years imprisonment.
The trial judge's reasoning
[5] The trial judge's principal reason for imposing the life sentence was that the appellant
"had shown himself capable on two occasions, separated only by about a month, when others, again younger men, and in one case a young woman, had dared to cross him, even over relatively minor matters, of taking sadistic pleasure in the infliction of pain and the inspiration of real terror, over long periods (in particular on the second occasion when three had been held captive) whether by instructing, or carrying out, or attempting to carry out, horrifying assaults in the nature of tortures, or by means of quite appalling threats - leaving two of his victims severely injured and permanently disfigured and all, I have no doubt, emotionally scarred for life. I explained that even without sight of his record, and certainly in the light of that, it was clear that he posed a substantial danger to the public while at liberty; that I would wholly be failing in my public duty if I did not impose a sentence in which the question of release from custody would be subject to review from time to time, where any such release would only be after the fullest possible assessment, and under licence ... It was in addition my view that such a sentence - rather than, as would have been inevitable, a very, very extensive determinative sentence (with or without extension) - would be likely to be in the interests of the appellant himself".
In his comments on the grounds of appeal he says
" ... I was in no doubt at all at the end of the trial, having regard to the nature of the offences and to the stark terror which the appellant plainly inspired in others - plain not merely from the evidence of the complainers but from many other witnesses who came into contact with him, including the second accused who pled guilty and gave evidence implicating the appellant - and having regard to the appellant's record, that he was a person who was likely to pose a substantial danger to the public while at liberty."
The trial judge decided that it was not necessary to call for reports. He had in mind the decision in Robertson (JW) v HM Adv (1987 SCCR 385).
The submissions for the appellant
[6] Counsel for the appellant submitted that, in view of Robertson (ND) v HM Adv (2004 SCCR 180, at para [26]), the trial judge should have obtained a social enquiry report, as would have been mandatory in the case of an extended sentence, and a risk assessment. A discretionary life sentence was the sentence of last resort. An extended sentence was to be preferred whenever it could provide the necessary protection for the public by means of the extension period (Robertson (ND) v HM Adv, supra, at para [31]). The appellant could have been made subject to such a sentence until he was nearly 60 years old. If he were to re-offend upon release during the custodial term, he could be recalled to serve the balance of that term and the whole of the extension period (ibid, at para [30]). Although these offences were serious, the injuries sustained by the complainers had not in the event been particularly serious. The assaults were inflicted on persons connected with the appellant and not on members of the public. These considerations, together with the appellant's health problems and his responsibilities to his aged mother, pointed to the imposition of a sentence with a definite release date.
[7] Counsel for the appellant did not dispute that, if the trial judge was entitled to impose a discretionary life sentence, the punishment part of 9 years was appropriate.
Submissions for the Crown
[8] The advocate depute addressed the court only on the question whether the trial judge was entitled to impose the life sentence without having obtained a risk assessment and a report or reports. He submitted that the obtaining of medical and psychiatric reports was not a prerequisite to the imposition of a discretionary life sentence (Robertson (JW) v HM Adv, supra, Lord Justice Clerk Ross, at p 387; Baillie v HM Adv, 1993 SCCR 1084, Lord Justice Clerk Ross at p 1086D). In Robertson (ND) v HM Adv (supra), the court required that a social enquiry report and a risk assessment should first be obtained; but that case was distinguishable. It related to sex offenders. The court's requirements for such information (at paras. [25]-[27]) were made in that context and were confined to it. Whenever a life sentence was in contemplation, the crucial question was whether the accused seemed likely to present a serious danger to the public for an indeterminate time (Attorney-General's Reference (No. 32 of 1996), (1997) 1 Cr App R (S) 261). The trial judge in this case was best placed to decide that question.
Decision
[9] There are two issues in this appeal, namely (1) whether the trial judge was entitled to impose the discretionary life sentence without first having obtained a report or reports and a risk assessment; and (2) in any event, whether the protection of the public would have been adequately met by the imposition of an extended sentence.
The need for a risk assessment and a social enquiry report
[10] In Robertson (JW) v HM Adv (supra) and in Baillie v HM Adv (supra) the court affirmed that the trial judge is entitled to decide whether to impose a discretionary life sentence without having to obtain medical or psychiatric reports.
[11] In Robertson (ND) v HM Adv (supra) the court took a different view in relation to risk assessments and social enquiry reports; but that case involved grave sexual offences. The court held that it should take into account the nature and gravity of the offending behaviour and the length of time during which it occurred; the accused's record, and his attitude to his offending, including the question whether he had acknowledged his guilt. But the court also had an important duty to have regard to the protection of the public and to impose a sentence that took proper account of the risk of re-offending (at para. [25]). In giving the Opinion of the court, Lady Cosgrove said that:
"Before reaching a view as to the likely level of risk of future offending presented by an offender convicted of a sexual offence, the court should obtain both a risk assessment performed by a suitably qualified psychologist and a post-conviction social enquiry report, in order to enable an informed decision to be made" (para [26]).
[12] In our view, that requirement does not necessarily apply to all cases in which the sentencing judge is considering the imposition of a life sentence. It was laid down in the context of sexual offences and it is clearly related to such offences for the good reason that at the stage of sentencing the court cannot know whether and to what extent the accused will co-operate in any sex-offender programme offered to him while he is in custody, or predict the effectiveness of any such programme (ibid, at para [27]). In other crimes, the sentencing judge may not need such material.
[13] We do not accept the submission that because a social enquiry report is a pre-requisite to the imposition of an extended sentence (1995 Act, s 210A(4)), it should also be a pre-requisite to the imposition of a discretionary life sentence. It is understandable that the legislature should have made such a requirement in the case of an extended sentence since the accused will be entitled to be released upon completion of two thirds of the custodial term, regardless of his progress while he is in prison (Prisoners and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act), s 1(2) (as amended); s 26A(2)). It is therefore important that the sentencing judge should be satisfied on the information before him that when released the accused can be appropriately supervised in the community. But we do not see why a social enquiry report should be a pre-requisite to the imposition of a life sentence since the life sentence prisoner is not entitled to be released on any specified date and since the question of his release will depend inter alia on the circumstances prevailing when that question comes to be considered and on a risk assessment made at that time.
[14] There may be cases involving non-sexual offences where the judge may think it wise to obtain a social enquiry or other report, or a risk assessment, before deciding whether to impose a life sentence; but that, in our view, is a matter of discretion rather than obligation.
Life sentence or extended sentence
[15] In our view, the imposition of a life sentence in this case was within the legitimate discretion of the trial judge. The appellant committed repeated acts of sadistic violence. The trial judge heard the evidence on the matter over a period of six weeks and saw for himself the terror that the appellant inspired in the complainers and other witnesses. He also took account of the appellant's extensive record, which included the High Court convictions to which we have referred. In our opinion, he was entitled to conclude, without reports or risk assessments, that the appellant was a habitually violent criminal who presented a substantial danger to those who, in their dealings with him, should incur his displeasure.
[16] If an extended sentence were imposed, the appellant would be eligible for release on completion of half of the custodial term and entitled to release on completion of two thirds of it (1993 Act, s 1(3), (2); s 26A(2)). We agree with counsel for the appellant that such a sentence would have discouraged the appellant from re-offending while on licence, because in that event he would be liable to be recalled to serve the remainder, if any, of the custodial term or of the extension period (Robertson (ND) v HM Adv, supra, at para [30]). But the trial judge was entitled to prefer the more stringent safeguard that, notwithstanding his completion of the punishment part of a life sentence, the appellant would be released only when the Parole Board was satisfied that he no longer represented a danger to the public.
[17] We see no reason to interfere with the trial judge's exercise of his discretion on that question.
Disposal
[18] We have therefore refused the appeal.