APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Woolman Lord Wheatley	[2011] HCJAC 94 Appeal No: XC640/08 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST SENTENCE by ROBERT FOYE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Advocate & Mackenzie, Advocate; instructed by Messrs Drummond Miller, Solicitors, Edinburgh

Respondent: G Mitchell, QC, AD; instructed by the Crown Agent

28 September 2011

The background circumstances

[1] On 23 January 2008, at a diet in terms of section 76 of the Criminal Procedure (Scotland) Act 1995, "the 1995 Act", the appellant pled guilty to an indictment in the following terms:

"On 24 August 2007 at a wooded area at Dowanfield Road, Cumbernauld you did assault FH ... and did seize her by the neck, place your hand over her mouth, pull into said wooded area, repeatedly punch her on the head, pull to the ground, kiss her on the mouth, kiss and handle her breasts, pull down her trousers and pants and force her legs apart all to her injury and you did rape her".

On that occasion there was put before the court a schedule of previous convictions relating to the appellant, which contained several convictions for assault and other offences and a conviction dated 5 July 2002 in the High Court at Edinburgh of inter alia attempted murder, in respect of which a sentence of ten years imprisonment had been imposed.

[2] The circumstances of the offence, as they were presented to the sentencing judge in an agreed narrative, were as follows. On 24 August 2007, the complainer, who was then aged 16 years, had gone into Cumbernauld in order to collect new contact lenses in time for the commencement of the new school term. She was about to enter the academic year in which she would sit Highers and, hopefully, obtain the necessary grades for university entrance. On her way home, she had proceeded along a route which took her on a footpath through a wooded area. There she encountered the appellant, who asked her the time. She replied that she did not know and continued walking. However, he then proceeded to assault her, seizing her, putting his hand over her mouth, placing his other arm around her neck and pulling her forcefully into the woods. There he punched her and restrained her. The complainer screamed and struggled, whereupon the appellant told her to shut up and tightened his grip around her mouth, restricting her breathing with the arm that was still around her neck. He then forced her to the ground. She continued to struggle, but was terrified into desisting from doing so by the appellant. The appellant then forced himself on her, putting his mouth over hers, handling her breasts, pulling down her trousers and pants and forcing her legs apart. Thereafter he penetrated her twice with his private member. This was her first experience of sexual intercourse. Thereafter the appellant left the complainer, telling her to remain where she was until he had gone.

[3] The complainer was extensively bruised and scratched about her eyes, cheek, ear, lip, forehead, hands, arm, flank and breasts. She was in a dishevelled state, but was able to make her way back to the path along which she had been walking, where she received help from passersby who called the police.

[4] The attack is said to have had a serious effect upon the complainer and her ability to lead a normal life. Initially she tried to cope, but quickly found that she could not attend school at all in the early weeks after the attack and when she did return it was on a part-time basis only. She became fearful of going out and had suffered substantially negative psychological effects. She felt scared when she did go out. The sight of men in the area of her home made her anxious and feel insecure. She felt unable to make decisions and found it difficult to talk openly to people. It was to her credit that, notwithstanding the fact that she had been able to attend school only on a part-time basis over her last academic year and required counselling, she obtained excellent examination results.

[5] At the time of the offence, the appellant was an absconding prisoner from Castle Huntly Prison. He had been released from that establishment for one day on 18 August 2007 to enable him to attend a meeting of Alcoholics Anonymous. Rather than return to prison, the appellant travelled to the Cumbernauld area where initially he stayed with friends, subsequently living rough in a secluded spot in the hope of avoiding detection. Thereafter he had proceeded to Manchester before returning to the Cumbernauld area. When first apprehended by the police in connection with the present matter on 25 August 2007, he denied having been in the area the previous day and also denied having had sexual intercourse with anyone that day.

[6] At the diet on 23 January 2008, having heard the narrative of the offence, the court adjourned the case until 18 February 2008 to enable a social inquiry report and a psychological report to be obtained dealing with the possible appropriateness of the imposition of an extended sentence in terms of section 210A of the 1995 Act. On 15 February 2008, by agreement, that diet was discharged and a fresh diet assigned for 22 February 2008. On that latter date, the sentencing judge, having considered the social inquiry report and the psychological report made a Risk Assessment Order in terms of section 210B of the 1995 Act, as amended, appointing Mr Mark Ramm, a person accredited for the purpose of section 210B by the Risk Management Authority to prepare a risk assessment report in regard to what risk the appellant being at liberty presented to the public at large. The diet was adjourned to 6 May 2008 pending the preparation of that report. Because of the non-availability of the report on that latter date, the diet was again adjourned to 16 July 2008 pending the preparation of the report. There were further adjournments until 1 October 2008, by which time the report and a supplementary report were available.

[7] On 1 October 2008, the court, being satisfied that the risk criteria were met, made an order for lifelong restriction under section 210F of the 1995 Act, and, in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, "the 1993 Act", ordered that a period of nine years imprisonment should be served by the appellant before the provisions of sections 2(4) and 2(6) of the 1993 Act should apply. That sentence was ordered to run consecutively to the total period of imprisonment to which the appellant was already subject. The minute of that hearing records that:

"In selecting the 'punishment part' aforesaid, the court indicated that it had taken account of the accused's early plea, and the guidelines set out in Ansari v Her Majesty's Advocate, and that the starting point of any determinate sentence, after discount in terms of section 196 of the Criminal Procedure (Scotland) Act 1995, would have been 13 years."

[8] Against that sentence the appellant has appealed. The ground of appeal in respect of which leave to appeal has been granted is in the following terms:

"2. In addition the appellant appeals against the punishment part selected because:

(a)   the appellant pled guilty by section 76 letter at the earliest opportunity and intimated to the Crown not to precognosce the complainer and in addition the agents did not precognosce the complainer to prevent her further distress.

(b)  in addition he expressed remorse for his involvement in this offence and,

(c)   the discount that aught (sic) to have been applied to all of these circumstances was insufficient standing the fact that as the learned trial judge imposed a lifelong restriction order he will require to serve all of the period selected before being eligible for parole."

[9] Since the procedure followed in this appeal has been unusual, it is appropriate to outline it. On 26 March 2009 the appeal came before a two-judge sentence appeal court, when the court remitted the appeal to a bench of three judges. On 18 December 2009 the appeal, along with the appeal of Morris Petch (XC 663/07) was heard by a court of three judges. The court, having heard counsel for the appellant and the advocate depute and being satisfied that the submissions made raised important issues in relation to the five judge decision in the case of Ansari v Her Majesty's Advocate 2003 S.C.C.R. 347, appointed the appeal to be heard by a bench of seven judges. On 28 and 29 September and 21 and 22 October 2010, a court comprised of seven judges heard the appeal along with that of Morris Petch. On 1 March 2011, that court, for the reasons given in its majority opinion, decided that the decision of the majority of the court in Ansari v Her Majesty's Advocate should be overruled and that the approach of Lord Reed in that case to the provisions of section 2(2) of the 1993 Act, as amended, should be adopted by sentencing judges. It held, with Lords Osborne and Emslie dissenting, that the exercise set forth in section 2(2)(aa) was, taken as a whole, so redolent of the exercise envisaged by the court in O'Neill v Her Majesty's Advocate 1999 S.C.C.R. 300 that it was inconceivable that Parliament had intended to do anything other than to give statutory effect to what the court had there envisaged. In any event, if the construction of that provision, as a matter of language, was not clear, the legislation could readily be described as ambiguous or obscure, and resort could legitimately be had to Parliamentary material, which made plain that that was provision's intention; that, with regard to section 2(2)(aa)(iii) the prisoners who would or might be released pursuant to section 1 of the Act, being short-term and long-term prisoners respectively, would be or might be so released after serving one-half of their sentences, therefore the sentences designated under that provision ought to be halved; and that the principled approach of Lord Reed in his dissenting opinion in Ansari v Her Majesty's Advocate ought to be adopted by sentencers. The court then remitted the appeal to a court of three judges for final disposal. It was in these circumstances that the appeal came before us on 14 April 2011.

The submissions of the appellant

[10] Counsel for the appellant explained that the appeal was concerned only with the punishment part selected by the sentencing judge. It was important to recognise that here there had been a plea of guilty in terms of section 76 of the 1995 Act, in consequence of which it had not been necessary for the complainer to be formally precognosced. At page 11 and following of the sentencing judge's report to this court, reference was made to the appellant's extensive previous convictions, including one for attempted murder. That conviction had as its basis conduct which demonstrated wicked recklessness rather than an intention to kill. What the sentencing judge had said in paragraphs 3 and 5 of her report on pages 12 and 13 now had to be seen as unsound, in view of the decision of the larger court. Furthermore, what the sentencing judge said at pages 13 and 14 of her report showed that she had not followed the procedure required by section 2(2)(aa) of the 1993 Act, as now interpreted. In particular she had not identified a notional determinate sentence as the starting point. She had selected a period of 13 years as a notional determinate sentence "on the basis of retribution and deterrence and with the exclusion of the risk element". However, she had not made clear what proportion of a hypothetical determinate sentence was attributable to the need for the protection of the public.

[11] Since there had been a plea of guilty in this case, the issue of a discount following the decision of Du Plooy v Her Majesty's Advocate 2003 S.C.C.R. 640 arose. There was an issue as to how the allowance of a discount for a plea of guilty should be related to the process required by section 2(2)(aa) of the 1993 Act. Counsel submitted that, in a case where a plea of guilty had been offered and accepted deserving of a discount in sentence, the following procedure should be followed by the sentencer who had decided to impose one of the sentences referred to section 2(1)(a) or (ab):

(1) the identification of a starting point, being the notional determinate sentence referred to in section 2(2)(aa)(i) of the 1993 Act, which would include such element as might be necessary for the protection of the public;

(2) the exclusion from that notional determinate sentence of that part of the period of confinement, if any, which might be necessary for the protection of the public;

(3) the application of a suitable discount in the light of the plea of guilty to that period, as desiderated by Lord Reed in his dissenting opinion in Ansari v Her Majesty's Advocate; and

(4) the application of the appropriate fraction to the figure arrived at, in terms of section 2(2)(aa)(iii) of the 1993 Act.

Counsel understood that the Crown concurred in the submission he was making concerning this aspect of the case. In the present case, the sentencing judge had identified a starting point of 13 years, but that was one which was said to reflect retribution and deterrence with the exclusion of the risk element. Counsel submitted that that figure was the product of an opaque process that was inconsistent with the proper application of section 2(2)(aa). He submitted that the upper limit of determinate sentences for rape including that element of the sentence that might be designed as a protection of the public would be in the range of 12 to 15 years. From that upper limit would require to be deducted the element of the notional determinate sentence necessary for the protection of the public.

[12] An issue arose in relation to the proper approach to the assessment of an appropriate level of discount in respect of the plea of guilty where the offence which had given rise to the discretionary life sentence, or order for lifelong restriction, was ex hypothesi not murder. There had been certain decisions of the court in relation to appropriate discounts for pleas of guilty where the offence giving rise to a life sentence was murder. Reference was made to Her Majesty's Advocate v Alexander 2005 S.C.C.R. 537 and Her Majesty's Advocate v Boyle 2010 SCCR 103. What emerged from paragraphs [19], [20] and [21] in the latter case, in the opinion of the Lord Justice General, was that the maximum discount that should be available in a case of murder as a proportion of the total in respect of an earlier plea of guilty was one-sixth, with a maximum of five years, which compared with the practical maximum discount available in non-murder cases of around one-third. The issue here was whether the reduced discounts applied in murder cases were also appropriate where discretionary life sentences were being imposed. Counsel submitted that they were not. Murder was a crime of a unique character. It was made clear in the cases to which reference had been made that it was because of that character that the reduced discounts were considered appropriate.

[13] Reverting to the present case and the approach of the sentencing judge, she had not made clear in what way she had accorded a discount for the plea of guilty. Indeed, at pages 16 and 17 of her report to this court she had eschewed the idea of engaging in an arithmetical calculation, which left her approach to her discount unascertainable.

[14] In the context of discretionary life sentences, counsel relied upon what was said in the Definitive Guideline promulgated by the Sentencing Guidelines Council in England in relation to reduction in sentence for a guilty plea, revised in 2007. At page 9 of that document, at paragraph 7.3, the Council observed that there was distinction between discounts in punishment parts in the context of a life sentence for a murder and other kinds of discretionary life sentence. In the latter type of case, the approach to the calculation of the reduction in sentence for any guilty plea was recommended to follow the process and scale adopted in relation to determinate sentences for crimes other than murder.

[15] It was apparent from the sentencing judge's approach to the process required by section 2(2)(aa)(iii) that what she had done was not consistent with the interpretation of the larger court in the present case. Without justification, she had selected a fraction of two-thirds. In all the circumstances the sentencing judge had erred. Her approach was flawed. This court should discard her sentence and fix a sentence of its own in accordance with the decision of the majority of the larger court in the present case.

Submissions of the Crown

[16] Although this was a sentence appeal, we invited the Advocate depute to make any submissions that he thought fit in relation to matters of law which he saw as arising in the appeal. There were two such matters which he mentioned. The first of these was the identification of the appropriate stage at which a discount for a plea of guilty should be applied. The Crown was in agreement with the submissions made on behalf of the appellant in that regard. The second matter related to a proper approach to the identification of a proportion for a discount in respect of a plea of guilty. Once again, the Crown was in agreement with the submissions made on behalf of the appellant in that respect. There was no reason in cases involving discretionary life sentences to depart from the approach appropriate to discount for a plea in relation to determinate sentences.

The decision

[17] Before coming to the particular circumstances of this case and, in particular, the punishment part of the sentence imposed by the sentencing judge, it is appropriate to make some observations concerning the law to be applied. The statutory background to the making of a decision to identify a punishment part in a case of this kind is to be found in section 2(2) of the 1993 Act, as amended. The proper approach to that section is dealt with in detail in the opinion of the Lord Justice General in the present case, in which a majority of the larger court concurred. In paragraph [52], he makes certain observations about Ansari v Her Majesty's Advocate and continues:

"I agree with Lord Reed (paragraph [30]) that the fact that, under the Parole Board (Scotland) Rules, the Board is entitled to take account of the nature of the relevant offence does not entail that its functions involve considerations of retribution or deterrence. I also agree with him that, ordinarily, the exercise required by sub-section (2)(aa)(iii) will involve taking half the figure brought out by that exercise up to that point, the seriousness of the offence having already been taken into account under sub-section (2)(a) and (aa)(i)".

[18] It appears to us also to be appropriate to highlight what the Lord Justice General said in paragraph [53]:

"I have accordingly come, with regret, to the view that, however unsatisfactory it may appear as a matter of comparative justice, Parliament has given statutory effect to an arrangement under which an indeterminate prisoner will, or at least may, become first eligible for consideration for parole at an earlier stage in his sentence than an equivalent determinate prisoner. If this situation is to be remedied, it is for Parliament to remedy it. The divisions of opinion expressed judicially in these appeals would suggest that a clear, well-considered legislative solution is called for. Meantime, sentencers should, in my view, adopt the approach to these provisions preferred by Lord Reed in Ansari."

We think that it may be important and of some comfort to those concerned about the anomalous situation outlined by the Lord Justice General in paragraphs [42] and [53] of his opinion, to recognise what is the overall effect of the provisions in question. Upon the expiry of the punishment part fixed by the court, the subject of the sentence is not released. What occurs is that the jurisdiction to determine the necessity for continued incarceration of the subject of the sentence passes from the court to the Parole Board, sitting as a judicial tribunal. The release of the subject of the order will occur only if and when that body conclude that that is consistent with maintenance of an acceptable level of risk to the public. Such a state of affairs may never come into being; alternatively, if it does, that may happen only at some distant point in the future. Until then, the subject will remain incarcerated.

[19] In the light of the foregoing approach, we now turn to consider the sentencing judge's reasoning in selecting the punishment part of nine years. In this regard, we have to observe that it is clear that she did not attempt to follow all of the provisions of section 2(2)(aa) of the 1993 Act, as amended. In particular, it is evident from what is said on page 14 of her report that she did not attempt to follow the first step required by sub-paragraph (i) of that provision. There she said:

"Having given consideration to all of the foregoing factors, I have reached the view that the notional determinate sentence in your case, assessed on the basis of retribution and deterrence and with the exclusion of the risk element, all in accordance with the relevant statutory requirements, would have been severe. Retribution and deterrence again come into play in assessing, as I have to do, the appropriate proportion of that notional determinate sentence and I consider that a high proportion should be set in this case. I have reached the view that the notional determinate sentence would have been 13 years and in all the circumstances it is appropriate to fix the punishment part at nine years."

Accordingly, she did not in fact identify the period of imprisonment specified in sub-section (2)(aa)(i), which requires the identification of a determinate period of imprisonment which "would have been appropriate for the offence had the court not sentenced the prisoner to imprisonment for life, or as the case may be not made the order for lifelong restriction ...". What she did was to identify a period, namely 13 years, which she considered appropriate to reflect the considerations of retribution and deterrence only, not the necessity for the protection of the public. Thereafter, she proceeded, for understandable reasons, to adopt an interpretation of section 2(2)(aa)(iii), which has been held to be unsound in the decision of the majority of the larger court in the present case.

[20] In these circumstances, we conclude that the sentencing judge's determination of the punishment part in connection with the sentence which she imposed was unsound in law and must therefore be discarded. It then becomes a matter for this court to evaluate the circumstances ourselves and to identify a punishment part in a manner which is in accordance with the statutory requirements, as they have now been interpreted. As the Lord Justice General said in paragraph 43 of his opinion in the present case:

"[43] The first step is the identification of a determinate sentence which notionally might have been imposed if a life sentence had not been. Such a sentence would be likely, in some cases at least, to have built into it a custodial element for the protection of the public. The potential length of that element should not, however, be exaggerated. Determinate sentences are basically retributive in character (see commentary on Ansari 2003 S.C.C.R. at page 376A to C) and the notional determinate sentence to be identified should not be extravagantly enlarged in a vain attempt to equiparate it with an indeterminate sentence."

[21] We recognise that there is an element of unreality in the exercise which requires to be undertaken. That is because, where the circumstances of an offence and offender are such that a sentencer contemplates the selection of a discretionary life sentence, or an order for lifelong restriction, he or she will not be likely to envisage what hypothetical determinate sentence might be seen as its equivalent, or alternative. For that reason, in undertaking this first step, we do not consider that the sentencer need necessarily be constrained within the limits of determinate sentences which have actually been imposed in comparable circumstances. Ex hypothesi, the determinate sentence to be identified, following the intention of Parliament, is one which has never been and never will be imposed. The recognition of this aspect of the matter renders the exercise particularly difficult, but it is one which must be undertaken. Doing the best that we can in the circumstances of this case, having regard to all of the relevant circumstances of the offence and the appellant, we would identify as appropriate in the first stage of the exercise a determinate sentence of 15 years duration.

[22] The nature of the exercise required by section 2(2)(aa)(ii) of the 1993 Act is fully described in paragraph [44] of the opinion of the Lord Justice General in this case:

"The second step is to strip out of the notional sentence any element for public protection. That element is expressed in O'Neill as 'lacking the special requirement of public protection which has led to the life sentence' (page 307) and 'leaving out of account the element of protection of the public' (page 308). The former expression might be construed as stripping out of the hypothetical determinate sentence only that element notionally equivalent to the protection which called for the life sentence but leaving a protective custodial element which might be included in any determinate sentence. But the latter expression is not, in my view, open to such a construction; it envisages stripping out the whole protective element. That is, moreover, the more natural reading of the court's Opinion read as a whole. In the preceding paragraph on page 308 the Lord Justice General had said '... in the normal case the court should decide what period of detention would be appropriate, purely as punishment for the crime, and should then designate half of that period' (emphasis added). It is also, in my view, the natural reading of step (ii) in section 2(2)(aa): '(ignoring the period of confinement, if any, which may be necessary for protection of the public)' - a repetition of the same words used earlier in the sub-section - points, in my view, to the ignoring/stripping out of the whole protective element. The first and second steps identified judicially in O'Neill are closely paralleled by paras. (i) and (ii) of section 2(2)(aa) of the 1993 Act (as amended in 2001)".

Making the best judgement that we can of that particular element in the notional determinate sentence which we have developed, we consider that a period of three years should be excluded from the notional determinate sentence. The result of that step is therefore a figure of 12 years.

[23] The third step in the exercise is that required by section 2(2)(aa)(iii) of the 1993 Act. This part of the exercise was described by the Lord Justice General in paragraph [45] of his Opinion in this case in this way:

"The third step is more problematic. It requires taking into account the provisions for release made, for determinate sentences, in section 1. It involves an element which is artificial since the hypothetical prisoner would not serve a 'stripped down' proportion of his sentence before being released but the requisite proportion of the whole of his sentence; but as the exercise is itself hypothetical, perhaps a measure of artificiality is unavoidable. The critical phrase is 'the proportion ... which a prisoner ... would or might serve before being released, whether conditionally or on license, under section 1 ...'. The disjunctive expression must be read, in my view, disjunctively (see Lord McCluskey in Ansari at para. [2]) - that is, the prisoner of whom it can be said that he 'would ' serve a proportion is the prisoner who would be released unconditionally; he, the short-term prisoner, would be so released having served half of his sentence. Correlatively, the prisoner who 'might' be released on license is the long-term prisoner; he might be released half way through his sentence, though, on the other hand, he might not be and might serve a larger proportion up to two-thirds. But just as in the case of the short-term prisoner the expiry of the half proportion is the earliest date, albeit the mandatory date, when he can be released, so I would be inclined to read 'might' serve before being released as a reference to the earliest possible date when the long-term prisoner might be released, namely, again a half. That would be consistent with O'Neill. Against that construction it has to be said that, if Parliament had intended in both cases to refer to the half-way stage, it could have expressed that intention much more simply."

[24] The Lord Justice General goes on in paragraph [52] of his opinion to contemplate the circumstances in which a fraction other than one-half might properly be adopted. He states that ordinarily the exercise required by sub-section (2)(aa)(iii) will involve taking half the figure brought out by the exercise up to that point. The circumstances in which there might be departure from that fraction are considered by Lord Reed in Ansari v Her Majesty's Advocate in paragraphs [38] and [39]. What the Lord Justice General makes clear is that the seriousness of the offence for which the sentence is being imposed will not constitute a justification for a departure from the fraction of one-half, since the seriousness of the offence will already have been taken into account in sub-section (2)(a) and (aa)(i).

[25] In the circumstances of this case, there being no reason for any departure from the use of fraction one-half, the outcome of the process required by section 2(2)(aa) would be a period of six years. However, hitherto, no account has been taken of the fact that the appellant pled guilty under section 76 of the 1995 Act. The question therefore arises of the significance of that plea of guilty in relation to the identification of the appropriate punishment part. That matter is dealt with in section 2(2)(c) of the 1993 Act, which requires the court to take into account "where appropriate, the matters mentioned in paragraph (a) and (b) of section 196(1) of the 1995 Act." During the course of the submissions before us, two issues arose in relation to the matter of a discount for the plea of guilty. The first of these was what was the appropriate point in the consideration required by section 2(2)(aa) at which the discount should be applied; the second was whether the extent of the discount should be assessed by reference to the principles set out in Du Plooy v Her Majesty's Advocate by the Lord Justice General in paragraph [14], or whether the lesser discount contemplated in such cases as Her Majesty's Advocate v Alexander and Her Majesty's Advocate v Boyle and Others should be applied. Counsel for the appellant and the Advocate depute were at one in relation to these issues, as is evident from a narrative of the submissions made. Having considered the matter ourselves, we are satisfied that the position taken up before us by them was a proper one. It appears to us that if the appropriate discount, whatever it might be, were applied to the notional period to be identified in terms of section 2(2)(aa)(i), the result would be arbitrary and unjust. We take that view because sub-section (2)(aa)(ii) requires the identification of a period of imprisonment derived from sub-paragraph (i) after the exclusion of the period of confinement, if any, which might be necessary for the protection of the public. It would appear to us to be quite inappropriate to apply the discount to some part of the notional sentence originally identified which was then to be excluded. Accordingly, in our view, the appropriate discount should be applied after the exclusion of that part of the notional period of imprisonment identified under sub-paragraph (i).

[26] Turning to the second issue mentioned, we are also satisfied that it is appropriate to follow the approach set out in Du Plooy v Her Majesty's Advocate, rather than that explained in Her Majesty's Advocate v Alexander and Her Majesty's Advocate v Boyle and Others. Both of those cases involved mandatory sentences of life imprisonment. In Her Majesty's Advocate v Alexander, it was made clear by the court that murder cases should be treated differently from others in the fixing of a discount for a guilty plea, since an over-generous allowance would fail to meet the objectives of deterrence and retribution which punishment parts were intended to achieve. Once again we find ourselves in agreement with that approach. We are reinforced in our view by consideration of the document issued by the Sentencing Guidelines Council of England and Wales concerned with Reduction in Sentence for a Guilty Plea, A Definitive Guideline revised 2007, which in section G, paragraph 7.3, makes clear that, in relation to indeterminate sentences other than life sentences for murder, the ordinary approach to discount should be adopted.

[27] Turning now to the level of discount appropriate in this case, we note that the case against the appellant was a strong one, supported by DNA evidence. Furthermore, we note that the appellant initially denied involvement in the offence, albeit that, in due course he pled guilty in terms of section 76 of the Act of 1995. Looking at these considerations and all the circumstances of the case, we conclude that an appropriate level of discount here would be 25 per cent. Thus on the basis of the figure of six years which we have developed, the final punishment part which we determine as appropriate in this case is one of four and a half years.

[28] In the present case, the sentencing judge ordered that her sentence, including the period specified in terms of section 2(2) of the 1993 Act was to run consecutively to the total period of imprisonment to which the appellant was already subject, a course rendered competent by section 204 B(4) of the 1995 Act, as amended. We have no reason to disturb that part of her order. In that connection, it would appear that that enactment has rendered obsolete the observations of Lord Reed in paragraph [37] of his opinion in Ansari v Her Majesty's Advocate.