Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 20

HCA/2014-004363-XC

Lady Smith

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in

APPEAL AGAINST SENTENCE

by

MYLES GIBSON SIMPSON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  J Brown, sol adv;  Finlay Macrae

Respondent:  McFarlane, AD ad hoc;  Crown Agent

13 March 2015

Summary

[1]        On 21 January 2015, the court heard submissions on behalf of the appellant in relation to two grounds of appeal against sentence.  The main and first ground of appeal was that the imposition of an order for lifelong restriction was excessive.  The second ground of appeal was directed to the punishment part of 3 years imprisonment which was said to be excessive in that a discount of 25% ought to have been applied to take into account the guilty plea. 

[2]        Having reserved our opinion, we now advise that for the undernoted reasons, the appeal is granted but only to the extent of quashing the punishment part of the order for lifelong restriction and substituting a punishment part of 2 years 3 months imprisonment from 22 March 2013. 

The statutory provisions relating to an order for lifelong restriction

[3]        The main provisions relevant to the present case are found in section 210F of the Criminal Procedure (Scotland) Act as amended (the 1995 Act) which states:

“210F.-(1)        The High Court, at its own instance or on the motion of the prosecutor, if it is satisfied, having regard to –

(a)        any risk assessment report submitted under section 210C(4) or (5) of this Act;

(b)        any report submitted by virtue of section 210D of this Act;

(c)        any evidence given under section 210C(7) of this Act;  and

(d)        any other information before it,

that, on a balance of probabilities, the risk criteria are met, in a case where it may make a compulsion order in respect of the convicted person under section 57A of this Act, either make such an order or make an order for lifelong restriction in respect of that person and in any other case make an order for lifelong restriction in respect of that person.

(2)        An order for lifelong restriction constitutes a sentence of imprisonment, or as the case may be detention, for an indeterminate period.

(3)        The prosecutor may, on the grounds that on a balance of probabilities the risk criteria are met, appeal against any refusal of the court to make an order for lifelong restriction”.

The risk criteria are defined in section 210E of the 1995 Act which states:

“210E.  For the purposes of sections 195(1), 210B(2), 210D(1) and 210F(1) and (3) of this Act, the risk criteria are that the nature of, or the circumstances of the commission of, the offence of which the convicted person has been found guilty either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large”.

History of proceedings

The sheriff court

[4]        The appellant, born 12 August 1963, appeared before the sheriff in Dundee on 9 July 2013 on an indictment containing one charge which stated:

“(001)  on 21 March 2013 at Lily Walker Centre, Ann Street, Dundee you MYLES GIBSON SIMPSON did assault [X] care of Police Service of Scotland and did repeatedly push her to the floor, repeatedly punch her on the face, present a syringe and uncapped needle at her and threaten to stab her in the eye to her injury”.

The appellant pled guilty and an agreed narration of facts was presented to the sheriff.  He adjourned for reports and, thereafter, remitted the appellant’s case to the High Court under and in terms of section 195 of the 1995 Act.

The High Court of Justiciary

[5]        The case called on 15 November 2013 before Lord Uist who made a risk assessment order and appointed Dr Johnstone, an accredited risk assessor, to prepare a risk assessment report on the appellant.   When it was available, a note of objection was lodged on behalf of the appellant.  At the hearing on 4 June 2014, the case was adjourned, on defence motion, to allow further reports to be instructed.  At a further hearing on 16 July 2014 the reports instructed on behalf of the appellant from Dr Doig, consultant psychiatrist dated 6 July 2014 and Dr Baird, consultant psychiatrist dated 27 May 2014 were available and, the case was adjourned to 1 October 2014 for an evidential hearing on the risk assessment report. 

[6]        At that evidential hearing, Lord Uist had available the written response by Dr Johnstone to the objection to her risk assessment report and he heard oral evidence from Dr Johnstone and Dr Baird.  The solicitor advocate for the appellant conceded that the appellant met the relevant risk criteria as at the date of the hearing. So far as the future was concerned, however, it was not conceded that he would continue to present a risk at a level which met the risk criteria. It was submitted that there was nothing in the evidence to suggest that the appellant would, in the future, seriously endanger the public and the risk criteria were, accordingly, not met.  The sentence should, it was submitted, be a lengthy period of imprisonment together with an extended sentence under and in terms of section 210A of the 1995 Act.  Lord Uist concluded, on the basis of all the material available to him but, particularly, the report of and evidence from Dr Johnstone and the two reports from the forensic psychologist, Mrs Orme, that , contrary to the appellant’s submission, the  risk criteria were met in the appellant’s case.  In these circumstances he imposed an order for lifelong restriction in respect of the appellant and fixed the punishment part of 3 years to run from 22 March 2013.  In assessing the period, he made no discount to take into account of the guilty plea by the appellant and the stage of proceedings at which the plea was tendered.

The order for lifelong restriction:  the first ground of appeal

[7]        The written submissions lodged on behalf of the appellant were expanded upon in oral submissions.   It was accepted, as had been conceded before Lord Uist, that, as at the date of the evidential hearing, the risk criteria were met on the evidence.  The criticisms were directed to the decision of the judge in relation to the future risk posed by the appellant.  It was submitted that Dr Johnstone had conceded that the classification of the appellant as high risk was marginal.  She had conceded that supervision of the appellant when at liberty in the future would be difficult but it was not impossible.  Reliance was placed on the evidence of Dr Baird who was of the opinion that sufficient protective factors could be put in place to manage the appellant’s behaviour in the future.  Dr Baird was more optimistic in his assessments of the appellant’s likely behaviour in the future than was Dr Johnstone.  The solicitor advocate submitted that Lord Uist had erred in not giving “appropriate weight” to Dr Baird’s assessment and the variety of protective factors which he narrated.  He had taken too narrow an approach.   There was, it was submitted, a failure in what was referred to as the “balancing exercise”.  The solicitor advocate prayed-in-aid the appellant’s history.  He had never received a lengthy custodial sentence and had not had the opportunity to undergo therapeutic and educational programmes in custody working towards long term rehabilitation.  The appellant was vulnerable rather than subversive or anti-authoritarian.  His level of offending was not so serious or of a nature to suggest that with appropriate rehabilitation and supervision in the community, he would be likely to seriously endanger the public at a point in the future.  The learned judge should have given weight to these factors and concluded that an order for lifelong restriction was not appropriate.

[8]        The appeal was presented on the basis that the judge was involved in some sort of balancing exercise and the criticisms of his approach were directed to his alleged failure to give appropriate weight to some of the evidence.  At one part of his submissions, the solicitor advocate appeared to accept that there was sufficient evidence available to the judge to entitle him to reach the conclusion he did.  It appeared that this court was being invited to reassess the evidence in some way, apply a different weight to various aspects of it and thereby come to a different conclusion although it was not entirely clear whether the conclusion urged upon us was that the risk criteria were not met or that an order for lifelong restriction was not appropriate.  The latter would not have been a relevant issue.

[9]        This is, however, not a rehearing and this court has not heard the evidence.  There was no attempt made in the submissions to persuade this court that the judge erred in his conclusion, for example, because there was no foundation for it in the evidence.  It is plain to us that there was clear evidence available to the judge which he was entitled to accept and which supported his conclusion, all as explained at pages 4 to 9 of his report.  He accepted that Dr Johnstone described that her classification of the appellant as being “ high risk”, was marginal, but nevertheless she gave a catalogue of reasons for her conclusion  that the appellant would seriously endanger the public if at liberty in the future.  In summarising the evidence of Dr Baird, the judge also accepted that Dr Baird considered Dr Johnstone’s high risk categorisation as marginal and he noted that Dr Baird had some positive view about the potential manageability of the  risk the appellant presented if he was released.  The judge took into account the evidence of Dr Baird and the submissions made on behalf of the appellant but was persuaded by the evidence of Dr Johnstone and the two reports from Mrs Orme that the risk criteria were met.  It was not disputed on behalf of the appellant that, once that conclusion was reached,  the judge was bound to make the order for lifelong restriction.

[10]      In our opinion the solicitor advocate for the appellant was simply seeking to reargue before us the submissions which had been made about the evidence and rejected by the judge.  It was not submitted that the judge made findings of fact which were not open to him or that he was bound to make other findings in fact.  These submissions  related to the weight to be given to the evidence and were not of the nature and significance which would enable this court to interfere with the conclusions of the judge who heard them.  In these circumstances we are not persuaded that there is any merit in this ground of appeal.

The punishment part:  the second ground of appeal

[11]      Lord Uist stated in his report that:

 “Although the point is not taken in the note of appeal, in fixing the punishment part of the appellant’s sentence I overlooked the fact that he had pleaded guilty to the charge in the sheriff court.  I should therefore have applied a 25% discount to the punishment part, resulting in a punishment part of 2 years 3 months imprisonment from 22 March 2013”.

The appellant was allowed to amend the grounds of appeal to add his second ground of appeal.  Standing the views expressed by the judge in relation to discount, with which we agree, we consider the second ground of appeal is well founded.