Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 90

HCA/2015/1569/XC

Lord Justice Clerk

Lord Bracadale

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

NOTE OF APPEAL AGAINST SENTENCE

by

THOMAS LAIRD

Appellant ;

against

HER MAJESTY’S ADVOCATE

Respondents :

Appellant: S Collins, Solicitor Advocate; Capital Defence

Respondent: Small AD; the Crown Agent

14 October 2015

General

[1]       On 2 June 2014, at the High Court in Glasgow, the appellant was convicted of a series of offences involving the physical and sexual abuse of five previous partners over a period of some 18 years. Two were under 16. Three were raped, two of them repeatedly.

[2]       More specifically, the appellant was convicted: (1)           in relation to the first complainer, LP, of: (charge 2) using lewd, indecent and libidinous practices towards her on various occasions in 1995 and 1996 when she was 15, contrary to s 5 of the Sexual Offences (Scotland) Act 1976. The appellant was 4 years older than her; (charge 5) assaulting her on various occasions between 2001 and 2004 by attempting to strangle her, pushing her against a wall and presenting a knife at her all to her injury; and (charge 6) assaulting her on one occasion in 2001 with intent to rape; (2) in relation to the second complainer, DM, the sister of LP, of: (charge 7) using lewd, indecent and libidinous practices towards her, then aged 11, on various occasions in 1995 and 1996; and (charge 8) using the same practices towards her, when she was under 16, on various occasions between 1996 and 2000, including digital vaginal penetration and oral penile penetration, contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995; (3) in relation to a male complainer, HP, the father of the women, of: (charge 15) assaulting him in 2001 by brandishing a knife at him in his own house, jumping on him and punching him on the head and body, to his injury; (4) in relation to a third female complainer, AA, who was 17 when she met the appellant when he was 27, of: (charge 22) raping her on an occasion between 2001 and 2003 after she had withdrawn her consent to intercourse; (5) in relation to a fourth complainer, AG, whom the judge describes as a vulnerable figure with an unhappy personal life whom he met on an internet chat room, of: (charge 37) indecently assaulting her on various occasions in 2009 by biting her on the breasts and attempting to smother her; and (charge 38) raping her after she had withdrawn consent during intercourse on various occasions in the same year; and (6) in relation to the fifth complainer, SJ, the most vulnerable of all the complainers and who was described by her sister as presenting as a 10 or 12 year old although 25 at the date of trial, of: (charge 42) assaulting her on various occasions between 2001 and 2003 by slapping and punching her, brandishing a knife and restricting her breathing; and (charge 43) raping her on various occasions in the same time period after she had withdrawn her consent during intercourse, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. This complainer had met the appellant when she was 22 and he was 37.

[3]       The trial judge describes the conduct of the appellant in some detail. It indicates, as the trial judge says, a manipulative, cunning and devious man with a considerable sexual appetite and craving for attention.

[4]       The trial judge imposed an Order for Lifelong Restriction in respect of the rape charges 22, 38 and 43. The punishment part was set at 5 years on the basis that the judge would have imposed a sentence of 13 years, of which 3 would have been for public protection. He imposed a determinate sentence of 10 years on the common law charges 5, 6, 7, 15, 37 and 42 and 3 and 6 years respectively on the statutory charges 2 and 8, all concurrent with the OLR. The appeal concerns only the OLR.

Reports
[5]       The trial judge considered 4 reports. The first was a Risk Assessment Report, ordered by the court from Dr Rajan Darjee, dated 12 December 2014. Dr Darjee reported that the appellant had told him that he was physically and emotionally abused by his mother and sexually abused as a child. However, he did not have any behavioural problems as a child. Dr Darjee recorded that the appellant had been in steady employment until 2007. He had no significant history of serious mental illness. He had no other criminal convictions. Based on the appellant’s account, Dr Darjee regarded the appellant as having an insecure, self-centred personality with a need to control and manipulate others and to focus on his own needs. He fulfilled the criteria for narcissistic and probable borderline personality disorders.

[6]       Dr Darjee reported that the appellant had developed a way of behaving with vulnerable females, using intimidation and violence. He posed a risk of analogous offending. Dr Darjee assessed that risk, in terms of the Risk Management Authority criteria, as “medium”. In doing so, however, he stated that the appellant’s profile fitted better with the medium rather than the high category; suggesting that his decision was, to a degree, marginal. Dr Darjee did note that there were legitimate concerns about the appellant’s responsiveness to offence related interventions due to his state of denial, lack of self-awareness and personality disorder. He commented specifically that the appellant had told him that he would not engage with any sex offender treatment programmes.

[7]       The second report was from Mary Ross, a consultant clinical psychologist, dated 30 January 2015. She had been instructed by the appellant. She described the main risk factor as being specific to intimate relationships with women. This, she considered, was something which could be monitored and supervised in the community. Her report did not constitute a formal RAR, but she stated that she considered that the degree of risk fell short of that which she understood would be appropriate for the imposition of an OLR. The trial judge comments that some of what she had said in relation to the appellant’s lack of personality disorder, empathy and motivation for treatment was in sharp contrast to Dr Darjee’s findings.

[8]       The third report was from John Baird, consultant forensic psychiatrist, dated 16 February 2014, instructed by the appellant. Again, this was not a formal RAR. Dr Baird considered that aggravating the risk were the nature and duration of the appellant’s offending together with his personality characteristics; notably his psychopathic traits, namely his plausibility and capacity to manipulate, deceive and disarm. Mitigating against a finding of high risk was the absence of previous convictions. The appellant’s responsivity to interventions and risk management strategies could only be, as Dr Baird put it, speculative at this stage. He concluded by a narrow margin that the appellant met the definition of high risk in that his risk factors and propensity to cause harm was enduring and that, by virtue of his personality characteristics, the potential for change may be limited.

[9]       Finally, there was an undated commentary by Lorraine Johnstone, consultant psychologist, which criticised, to a degree, the bases for the findings of both Drs Darjee and Baird. It did however suggest that, if anything, Dr Darjee had underestimated the risk posed by the appellant.

Decision
[10]     The ground of appeal is that the imposition of an OLR was inappropriate and excessive. The trial judge had placed too little weight on the opinions of Dr Darjee and Mrs Ross, and too much on that of Dr Baird. In response, the trial judge, citing Ferguson v HM Advocate 2014 SCCR 244, accepted that the sentencer must take into account and consider the content of the RAR. It must form part of the decision-making process, but the sole question is whether the risk criteria have been met; that is to say whether, putting matters shortly, there is a likelihood that the offender if at liberty will seriously endanger the public.

[11]     As was said in Ferguson (LJC (Carloway) at para [104]), the trial judge will, from his own knowledge and experience, have in mind such general elements as the effects of maturity on criminal conduct, the prospects of reform and rehabilitation as a result of programmes in the prison setting and the effectiveness of post-release supervision under parole. The decision on whether the statutory test has been made remains primarily for the judge at first instance. In this case the judge stated that he had no doubt that the criteria had been met and that the appellant was a devious, manipulative and deeply dangerous individual whose behaviour, for the rest of his life, would remain wholly unpredictable and would require constant supervision.

[12]     There is of course a particular difficulty in assessing responsiveness to treatment where there has been no previous conviction and hence custodial disposals in which programmes have been tried and tested. In that situation, the sentencing judge requires to make his own assessment based on his own knowledge and experience on whether the criteria are met and in particular whether it is likely that any form of treatment or other rehabilitative programme is likely to meet with success.

[13]     The court is unable to detect any flaw in the reasoning of the trial judge. This was a case involving repeated serious violent and sexual offending against no less than five women, all of whom were vulnerable by reason of age or other factors. The judge was entitled to take the view that the criteria for an OLR were met, notwithstanding that the RAR assessed the risk, albeit marginally, as medium. That in itself is not a bar to a judge holding that the criteria are met. In this case there was good reason to consider that Dr Darjee had underestimated the risk posed and that the conclusion of Dr Baird that the appellant fitted into the high risk category was accurate.

[14]     For all of these reasons, the appeal must be refused.