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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> McGowan & Anor v. Her Majesty's Advocate [2005] ScotHC HCJAC_67 (11 May 2005)
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Cite as: [2005] ScotHC HCJAC_67, [2005] HCJAC 67
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McGowan & Anor v. Her Majesty's Advocate [2005] ScotHC HCJAC_67 (11 May 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Hamilton Lady Cosgrove
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[2005HCJAC67] Appeal Nos: XC30/03 XC244/03 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTES OF APPEAL AGAINST SENTENCE by STEVEN HENRY McGOWAN and KEVIN BARRY O'DONNELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant (McGowan): A Brown; Balfour & Manson
Appellant (O'Donnell): P Wheatley; Franchi Finneston, Glasgow
Respondent: B McConnachie; Crown Agent
11 May 2005
[1] These appeals against sentence have been put out for hearing together since they are concerned with extended sentences under section 210A of theCriminal Procedure (Scotland) Act 1995.
The appellant McGowan
[2] He was sentenced in the High Court on 19 December 2002 to an extended sentence of 7 1/2 years, in respect of his plea of guilty in the sheriff court to a charge of assault and attempted robbery. The sentence was backdated to 12 August 2002, and comprised a custodial term of four and a half years and an extension period of three years. At the relevant time the maximum extension period available for a violent offence was five years. The appeal is confined to the extension period. [3] On 9 August 2002 the appellant entered a shop in the Stirling wearing a jacket, the hood of which was up and tightly tied. He was also wearing a knitted mask, in which two eye holes had been cut. Holding a large bread knife in the one hand, he said to a shop assistant that she should put money in a bag which he was holding in the other hand. A second assistant stepped forward and told him that she knew his voice. She instructed the other assistant to telephone the police. While she was doing so the appellant ran out of the shop. [4] At the time of the offence the appellant was 23 years of age. He had a number of previous convictions, the earliest being in March 1996. His most significant conviction was on 3 January 1997, when he received two consecutive sentences of nine months detention in proceedings on indictment in the sheriff court in respect of charges of breach of the peace. In 1998 and 1999 he received further custodial sentences in summary proceedings in the sheriff court. In June 2002 he was put on probation for a period of two years. The trial judge was informed that while serving the sentence imposed on 3 January 1997 the appellant had started to abuse heroin. Thereafter he became addicted to heroin and crack cocaine. At the time of the offence with which the present proceedings are concerned, he was at the nadir of his addiction. He had little or no recall of the offence. [5] For the appellant Mr Brown submitted that, in the light of the report by the sentencing judge, the appellant was a fairly wretched person, who had developed a drug habit, leading to his previous convictions. It was evident that the appellant only occasionally resorted to violence. Mr Brown questioned whether any extension period was required. In any event a period of three years was too long. The offence was symptomatic of drug addition. It had been committed in an amateurish fashion. The sentencing judge had made no allowance for the fact that during his time in custody the appellant would have the opportunity to give up drugs. He was now drug-free. Mr Brown accepted that, following a recommendation by the Parole Board, the appellant had been due to be released on licence in May 2005. However, due to his returning late from home leave in March, he would not be released until August, when he acquired his right to release. [6] The writer of the social enquiry report which was before the sentencing judge assessed the appellant as presenting a high risk of re-offending on his release, and suggested that it might be useful for a supervised release order to be made, subject to certain conditions. In the event it was not open to the sentencing judge to make such an order since he considered that he should impose a custodial term of four and a half years. He took the view, on the other hand, that, having regard to the gravity of the offence, the appellant's history of previous convictions and the terms of the social enquiry report, he should impose an extended sentence. He observed that the normal period of licence in respect of a period of imprisonment which he was imposing (in this case 18 and 27 months, depending on the date of actual release) would not be adequate to protect the public from the risk of serious harm from the appellant. He selected an extension period of three years after taking into account the appellant's history of offending, the escalation of his drug abuse following on his last release from prison, and his failure to comply with the conditions of the probation order imposed in June 2002. [7] We are in no doubt that, in view of the serious nature and persistence of the appellant's offending, the sentencing judge was correct to pass an extended sentence, so extending the period of licence which would normally have applied. The appellant's breach of the probation order which had been made only two months before he committed the assault and attempted robbery was a significant factor in supporting the view which was taken by the sentencing judge. However, we consider that, when added to the normal period an extension period of three years was excessive in respect that it went beyond what was reasonably necessary for the protection of the public from the risk of serious harm from the appellant. [8] In these circumstances we will quash the sentence imposed by the sentencing judge and substitute in its place an extended sentence of six years, comprising a custodial term of four and a half years and an extension period of 18 months. The sentence will be backdated, as before, to 12 August 2002.
The appellant O'Donnell
[9] He was sentenced in the High Court on 25 October 2002 to an extended sentence of 13 years, comprising a custodial term of five years and an extension period of eight years, in respect of a charge of rape of which he had been found guilty. His appeal is confined to the length of the extension period. [10] On 15 May 2002 the complainer, who was 18 years of age, met the appellant by chance in the centre of Glasgow where she had been drinking with a number of her friends. He was 22 years of age. They went for a walk together, and in due course entered a public park area. The complainer gave evidence that the appellant suddenly pushed her into some bushes, and that she ended up on the ground. He then pulled down her trousers, tried to strangle her and repeatedly hit her head against the ground. He made a number of threats, and had sexual intercourse with her against her will. She was by then very upset. When the appellant got off her she stood up and ran away. Photographs of the complainer showed various marks and bruises which she claimed had been caused by the attack. [11] For the appellant Mr Wheatley pointed out that the appellant had no analogous previous conviction. He had no record of violence or sexual offending. Mr Wheatley recognised that the writer of the risk assessment report had assessed the appellant as being at high risk of further sexual offending. However, he criticised the report for proceeding, he said, on conjecture and assumption. He pointed out that the writer stated that, since the appellant had only recently acknowledged responsibility for his offence, he was only able to offer limited analysis of the appellant's "cycle of offending". However, it was merely an assumption that there was such a cycle in the case of the appellant. Mr Wheatley also pointed out that the extension period was only two years short of the maximum which could be imposed. Such a period would be more appropriate for persons who had extensive history of the violent or sexual offending. [12] In his report the sentencing judge notes that both the risk assessment report and the social enquiry report had indicated that that was a high risk of the appellant re-offending. He narrates that counsel for the appellant did not dispute that conclusion, but pointed out that it had been largely based on the fact that the appellant had not initially admitted his full responsibility. He now wished to express his remorse, and his willingness to participate in any scheme that would address the risk of his re-offending. The sentencing judge states that, in the light of the circumstances of the rape, and the assessed risk of re-offending, he decided that an extended sentence was appropriate. He selected an extension period of eight years, having regard to these circumstances of the offence and, more particularly, in the light of the advice he received as to the risk of re-offending. [13] While we are in no doubt that the sentencing judge was amply justified in selecting a substantial extension period, we consider that, even when allowance is made for the serious nature of the crime, and the terms of the assessment of risk, it was excessive to add a period of eight years to the normal period of licence following the release of the appellant. We will accordingly quash the sentence and substitute an extended sentence of nine years, comprising a custodial term of five years and an extension period of four years. The sentence will be backdated, as before, to 17 May 2002.General Considerations
[14] During the discussion of these appeals reference was made to a number of general considerations, on which we have the following observations. At the outset we should say that our attention was drawn to the legislation in England relating to extended sentences. This is contained in section 227 of the Criminal Justice Act 2003, replacing section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. However, the differences between England and Scotland in regard to the structure and application of the legislation are such that no useful parallels can be drawn. [15] Section 210A of the 1995 Act provided the courts with an additional means of protecting the public. As was pointed out in Du Plooy v H.M. Advocate 2003 S.C.C.R. 640 at paragraph [19], a determinate sentence which is not an extended sentence may contain an element for the protection of the public from the offender's re-offending. However, that protection cannot extend beyond the period for which the offender is subject to a licence after his release. An extended sentence is intended to provide protection of the public from serious harm from the offender beyond the normal period of the licence, that is, of course, assuming that the risk of serious harm is not so great as to make it necessary for court to impose a life sentence. Thus, in considering whether to impose an extended sentence and, if so, the length of the extension period, the court is concerned with the risk of serious harm to the public from the offender following the end of the normal period of the licence. It follows that the imposition of an extended sentence should not affect the length of the custodial term, that is to say, in terms of subsection (2)(a), "the term of imprisonment which the court would have passed on the offender" otherwise than by virtue of section 210A. As this court pointed out in Robertson v H.M. Advocate 2004 S.C.C.R.180 at paragraph [30], the effect of the imposition of an extended sentence is that the offender remains liable to be detained in prison until the end of the extension period, subject, of course, to the Parole Board being satisfied, on a review of the case, that his continued detention is not necessary for the protection of the public [16] We should add that, as was stated in Du Plooy at the paragraph to which we have referred, for the purposes of discounting in respect of a plea of guilty, no allowance should be made in respect of an extension period or any element in a custodial term which is for the protection of the public. [17] It remains for us to comment on the means by which the risk of future offending is assessed. In the course of his submissions Mr Wheatley said that a sentencing judge should scrutinise the risk assessment which is put before him in order to determine its quality, including whether it was legitimate. However, it has to be borne in mind that a risk assessment represents advice to the court for which the author requires expertise in the techniques devised for the purpose. It is not appropriate for the court to reject the assessment in favour of some technical exercise of its own, or to modify the terms in which that assessment is expressed. On the other hand, it is a matter for the court to determine whether the assessment with which it has been provided is or is not satisfactory. If for some reason it concludes that it is unsatisfactory, it may call for a fresh technical assessment to be made. Otherwise, it is a matter for court to determine what weight to attach to it. It is, however, ultimately for the court to decide, on the basis of the whole material before it, whether the period for which the offender would, apart from section 210A, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from him and, if not so adequate, what length of extension period is, subject to the currently applicable maximum, appropriate.