Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 24

HCA/2014/004974/XC

 

Lady Paton

Lady Clark of Calton

Lord Malcolm

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST SENTENCE

by

ANGUS SINCLAIR

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Duguid QC, McCall QC;  (Faculty Services Limited for AFJ Solicitors)

Respondent:  F Mulholland QC, Lord Advocate;  Crown Agent

24 March 2016

Punishment part of 37 years
[1]        On 14 November 2014, after trial at Livingston High Court, the appellant (then aged 69) was convicted of the following offences: 

“(001) on 15 and 16 October 1977 between the World’s End Public House, High Street, Edinburgh and Gosford Bay, Aberlady, East Lothian and elsewhere in Scotland you ANGUS ROBERTSON SINCLAIR did, whilst acting along with Gordon Hamilton, born 1 March 1955, your brother in law, now deceased … assault Christine Eadie, born 21 February 1960, aged 17 years … repeatedly punch and kick her on the head and body or otherwise inflict blunt force injuries on her, bite her on the body, remove her clothing, force her legs apart, insert your penis in her anus and vagina and rape her, force her pants into her mouth, tie a ligature around her head thereby holding said pants in her mouth, bind her wrists, tie a ligature around her neck, compress her neck and asphyxiate and strangle her and did murder her, and further did steal her clothing and footwear, her handbag and contents, jewellery and personal effects, with intent to prevent law enforcement from recovering these items and did thereby attempt to pervert the course of justice;  

 

and

 

(002) on 15 and 16 October 1977, between the World’s End Public House, High Street, Edinburgh and a field at Huntington to Coates Road, near Haddington, East Lothian and elsewhere in Scotland you ANGUS ROBERTSON SINCLAIR did, whilst acting along with Gordon Hamilton, born 1 March 1955, your brother in law, now deceased … assault Helen Anne Scott, born 5 July 1960, aged 17 years … force her to walk barefooted into said field, forcibly remove the strap from her handbag, repeatedly punch and kick her on the head and body or otherwise inflict blunt force injuries on her, stamp on her head, remove her trousers, tights and pants, insert your penis in her vagina, rape her, force her pants into her mouth, bind her wrists, place a ligature around her neck, compress her neck and asphyxiate and strangle her and did murder her, and further did steal items of her clothing and footwear, her handbag and contents and personal effects, with intent to prevent law enforcement from recovering these items and did thereby attempt to pervert the course of justice.”

 

[2]        The trial judge, Lord Matthews, imposed a life sentence with a punishment part of 37 years. 

 

Events in the appellant’s life
[3]        The following events occurred during appellant’s life: 

• 7 June 1945:The appellant was born.
• 25 August 1961:The appellant (then aged 16) was convicted in Edinburgh High Court of culpable homicide.The victim was a young girl aged seven.Lord Matthews in his report at page 2 notes:“I was told that the conviction on 25 August 1961 for culpable homicide involved his interfering with the private parts of his victim, aged seven, tying her with a ligature and strangling her.”The appellant was sentenced to 10 years detention.
• 1968-69:The appellant (then aged 23-24) was released from custody.
• 15-16 October 1977:The appellant (then aged 32) murdered 17-year-old Christine Eadie and 17-year-old Helen Scott, in what became known as the “World’s End murders”.As detailed in the charges (paragraph [1] above) the modus operandi included punching, kicking, biting, raping (vaginally and, in the case of one victim, anally), and strangling with a ligature.The murders remained unsolved for about 30 years.
• 1978 (i.e. within a year of the 1977 murders):The appellant (then aged 33) murdered 17-year-old Mary Gallagher, using a similar modus operandi to that adopted in the World’s End murders, although also using a knife.The murder remained unsolved for over 20 years.
• 31 August 1982:The appellant (then aged 37) was convicted in Edinburgh High Court of three charges of rape, seven charges of lewd and libidinous practices, and breach of the peace.He was sentenced to life imprisonment.He has been in prison ever since.
• 4 June 2001:The appellant (a life prisoner aged 56) was convicted in Glasgow High Court of the 1978 murder of Mary Gallagher.A further life sentence was imposed, with a punishment part of 15 years.
• 2007:The appellant was tried for the 1977 World’s End murders.The trial court sustained a “no case to answer” submission, and the appellant was acquitted.
• 2011:The Double Jeopardy (Scotland) Act 2011 was enacted by the Scottish Parliament, and came into force in November 2011.
• 27 March 2014:The High Court granted an application by the Crown under the 2011 Act (based on advances in DNA techniques) for authority to bring a fresh prosecution against the appellant in respect of the World’s End murders.

 

Indictment and trial for World’s End murders
[4]        An indictment for the World’s End murders was served on the appellant.  The productions listed in the indictment included the following: 

• production 47:the extract conviction (1961) of culpable homicide of the seven‑year-old girl
• production 48:the extract conviction (1982) of rape and lewd practices
• production 49:the extract conviction (2001) of the murder of 17-year-old Mary Gallagher
• production 50:a certified extract of the indictment for the 1961 culpable homicide conviction
• production 51:a certified extract of the indictment for the 1982 rape and lewd practices conviction
• production 52:a certified extract of the indictment for the 2001 murder of Mary Gallagher.

[5]        The trial began on 13 October 2014 and lasted about five weeks.  Each day, the appellant appeared from custody.  On 14 November 2014 the appellant, then a serving life prisoner aged 69, was convicted unanimously of charges 1 and 2, namely the World’s End murders. 

[6]        The Lord Advocate moved for sentence.  It was not necessary to lay before the court a social enquiry report or a criminal justice social work report, as the appellant had previously served (and was obviously serving) a prison sentence.  In the course of his address, the Lord Advocate advised the court of the appellant’s history, and made reference to productions 47 to 52, described in paragraph [4] above.  The trial judge records this part of the proceedings in his report at pages 2 to 4 as follows: 

“In moving for sentence the Lord Advocate not only tendered a schedule of previous convictions but advised me of the detail of the most significant of those in terms of the case of Riley v HM Advocate 1999 SCCR 644.  A copy of the convictions will doubtless be with the papers.  I was told that the conviction on 25 August 1961 for culpable homicide involved his interfering with the private parts of his victim, Catherine Reehill, aged 7, tying her with a ligature and strangling her.  He was convicted of firearms charges on 21 January 1980 and then on 31 August 1982 was convicted of three charges of rape, seven charges of lewd and libidinous practices and behaviour and one charge of breach of the peace.  He was imprisoned for life on charges 1 to 3.  The sexual charges involved young children.  On 4 June 2001 at the High Court of Justiciary sitting in Glasgow he was convicted of murder.  The victim was a 17 year old girl and the crime was committed on waste ground.  He presented a knife at her, forced her onto the ground, raped her, compressed her neck, repeatedly struck her on the neck with the knife, tied a ligature around her neck and compressed her neck with it.

He had received a determinate sentence of 10 years for the culpable homicide charge and was released in 1968 or 1969 but was now serving two life sentences.  I understand that the punishment part in respect of the conviction on 4 June 2001 was 15 years imprisonment. 

He had never spent any time in custody on remand in connection with the current case.  He appeared on petition on 31 March 2005 and the case duly proceeded to trial but he was acquitted on 10 September 2007 when a submission of no case to answer was upheld.  The Double Jeopardy (Scotland) Act came into force in November 2011.  The Crown obtained authority for a new prosecution on 27 March 2014, largely based on new evidence as a result of DNA work which had been carried out at Cellmark.  He was reindicted in May 2014. 

For the appellant, Mr Duguid QC reminded me that many of the convictions were not previous ones but he accepted that it was appropriate that they be brought to the attention of the court.  He had nothing to say about the appellant’s personal circumstances.”

 

[7]        On 14 November 2014 Lord Matthews imposed a life sentence (a third life sentence for the appellant) with a punishment part of 37 years.  In his sentencing statement, the judge said: 

“There was no reason for Christine Eadie or Helen Anne Scott to think that 15 October 1977 was going to be particularly eventful.  To all intents and purposes they would have a pleasant Saturday night out, the sort of occasion they would look forward to enjoying for many years to come with friends and family, including perhaps children and grandchildren. 

 

Helen, shy and retiring and Christine more outgoing, had not long left school and started work, no doubt harbouring ambitions of moving on to greater things.  It was not made clear in the evidence how Christine saw her future but we know that Helen wanted to be a children’s nurse. 

 

Whatever dreams they had, they turned into nightmares shortly after they left the World’s End Pub, the name of which has become synonymous with these notorious murders. 

 

Little were they to know that they had the misfortune to be in the company of two men for whom the words evil and monster seem inadequate. 

 

Unless one day your conscience, if you have one, motivates you to tell the truth, no one other than you will ever know precisely what part you and Gordon Hamilton played in these awful events.  Perhaps it does not matter.  What does matter is that the girls were subjected to an ordeal beyond comprehension and then left like carrion, exposed for all to see, with no dignity, even in death. 

 

For them at least the nightmare is over and if they were not resting in peace before today I hope that they are now. 

 

The nightmare for their families and friends, on the other hand, has gone on from those first awful moments when they heard the news no one should hear until even now, 37 years later and counting.  It will never end.  No one who saw the evidence of Helen’s father and sisters and Christine’s mother, as well as Helen’s boyfriend, could fail to have been moved by it.  They are an example to us all, waiting patiently for justice while the authorities have worked tirelessly to achieve it. 

 

As for you, you have displayed not one ounce of remorse for these terrible deeds.  The evidence in this case as well as your record, details of which have now been revealed, show that you are a dangerous predator who is capable of sinking to the depths of depravity.  

 

I do not intend to waste many words on you.  You are well aware that the only sentence I can pass is one of life imprisonment. 

 

Before I turn to the details of that I must deal with two matters which are frankly academic. 

 

I certify that the offences of which you have been convicted attract the notification provisions of the Sexual Offences Act 2003.  In other words you are on the so-called Sex Offenders Register but the chances of your ever having to notify the police of anything in the future are remote in the extreme. 

 

Secondly I direct the clerk to notify the Scottish Ministers of your conviction in terms of the Protection of Vulnerable Groups (Scotland) Act 2007. 

 

Merely sentencing you to life imprisonment is not the limit of my duties.  The concept of parole does not sit easily with your crimes and indeed seems like an insult to the girls’ memories but nonetheless I have to designate a period which must pass before you can apply to be released on licence.  The purpose of that period, known as the punishment part of the sentence, is to satisfy the requirements of retribution and deterrence.  Whether you are ever released thereafter will not be a matter for me but for the Parole Board but I intend to make matters easy for them. 

 

On both charges 1 and 2 in cumulo I sentence you to life imprisonment to run from today and I fix the punishment part at 37 years.” 

 

Appeal against sentence
[8]        The appellant appeals against the punishment part of 37 years.  His ground of appeal is in the following terms: 

“5.  The punishment part of 37 years was excessive.  The selection of the punishment part reflected the length of time between the date of the murders and the conviction of the accused.  It appears that was the principal basis for its selection.  The passage of time prior to conviction should not have been a relevant factor in determining the length of the punishment part in circumstances where the accused was not actively evading arrest and had previously been tried and acquitted (in 2007) for the current offences.  The trial judge failed to take sufficient account of comparable sentences.  He failed to take sufficient account of what period a judge might have recommended be served had the appellant been convicted in 1977.  Having regard to the appellant’s criminal record (in terms of section 101 and 101A of the 1995 Act), the punishment part of 37 years was excessive.”

 

Relevant legislation
[9]        The Criminal Procedure (Scotland) Act 1995

“Section 101:  Previous convictions:  solemn proceedings

(3) Previous convictions shall not … be laid before the presiding judge until the prosecutor moves

(a) for sentence …

and in that event the prosecutor shall lay before the judge a copy of the notice referred to in subsection (2) or (4) of section 69 of this Act.

(7) Where a person is convicted of an offence, the court may have regard to any previous conviction in respect of that person in deciding on the disposal of the case …

 

Section 101A:  Post-offence convictions etc

(1) This section applies where an accused person is convicted of an offence (‘offence O’) on indictment.

(2) The court may, in deciding on the disposal of the case, have regard to –

(a) any conviction in respect of the accused which occurred on or after the date of offence O but before the date of conviction in respect of that offence …

(4) The court may have regard to any such conviction … only if it is

(a) specified in a notice laid before the court by the prosecutor and

(b) admitted by the accused or proved by the prosecutor (on evidence adduced then or at another diet …)” 

 

[10]      Section 101A was inserted in the Criminal Procedure (Scotland) Act 1995 by section 70 of the Criminal Justice and Licensing (Scotland) Act 2010.  The commencement date for section 101A was 28 March 2011:  see paragraph 2(1) and Schedule 1 of the Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No 8, Transitional and Savings Provisions) Order 2011 (SSI 2011/178), where the date of commencement for section 70 (“Disclosure of convictions and non-court disposals”) was defined, “[f]or all purposes in respect of offences committed on or after [28^th March 2011]”, as 28 March 2011. 

 

The sentencing judge’s report to the appeal court
[11]      The sentencing judge reported to the appeal court inter alia as follows:

“It is said that the punishment part of 37 years was excessive.  It is said that the principal basis for the selection of that period was that it reflected the length of time between the date of the murders and the conviction of the appellant.  That is not a relevant factor in determining the length of the punishment part.  The appellant was not actively evading arrest and had previously been tried and acquitted for the offences.  It is said that I failed to take sufficient account of comparable sentences and failed to take sufficient account of what period the judge might have recommended he serve had the appellant been convicted in 1977.

I had regard to the nature of these offences and the appellant’s dreadful criminal record. That included the convictions which post-dated the offences, in terms of section 101A of the Criminal Procedure (Scotland) Act 1995, as amended. I concluded that a punishment part of a period of years in the high 30s was appropriate.  I could have chosen a longer period than 37 years but it did seem to me that coincidentally there was an element of real justice in the period I selected which reflected the length of time the families had had to live with the consequences of these dreadful crimes. There was in my opinion no comparable case.  I am aware that periods of 30 and 33 years imprisonment was not overturned on appeal in the case of Wade and Coats v HM Advocate [2014] HCJAC 88 and periods of 29 and 33 years imprisonment were not challenged in Snowden and Jennings, for what it is worth. As it happens the appellant is already serving two life sentences and by my calculation the period of 37 years is effectively one of just over 35 years when account is taken of the expiry date of the sentence imposed in 2001.  There is no reason of which I am aware why I should take account of the period a judge might have recommended he serve had he been convicted in 1977.  There are far too many imponderables to take account of that and given the later offences as well as the effect of cases such as HMA v Boyle and others [2009} HCJAC 89, it would have been unrealistic.”

 

Submissions for the appellant
[12]      Senior counsel for the appellant submitted that the punishment part was the longest in Scotland to date.  While the case concerned the brutal and merciless murders of two young girls, the question was whether 37 years was necessary, appropriate, and fell within the judge’s discretion. 

[13]      The sentencing judge’s reasoning could be criticised in several respects. 

 

Length of time since commission of offence
[14]      The judge’s report seemed to indicate that 37 years had been selected because 37 years had passed since the murders.  If adopting that approach, the judge should have taken into account the first abortive trial in 2007, and the passage of time between 2007 and the trial in 2014 (seven years, not attributable to the appellant), and should have deducted seven years.  But in any event, the passage of time since the crimes was an inappropriate consideration to take into account. 

 

 

Comparable cases
[15]      It was for the High Court of Justiciary to set the parameters for punishment parts in life sentences to reflect contemporary Scotland (Boyle v HM Advocate 2010 JC 66 paragraph [18]).  There should be a degree of consistency.  Each case turned on its facts, but if the appellant was to receive the longest punishment part to date, there had to be some reason to distinguish his case from other cases. 

[16]      A punishment part of 32 (discounted from 35 for a plea of guilty) was imposed in Smith v HM Advocate 2011 SCCR 134.  That case involved the murder of a mother and her 10‑year-old daughter with several aggravating features of the kind referred to in Walker v HM Advocate 2002 SCCR 1036, namely (i) a child victim;  (ii) a sexual assault on the child;  (iii) injuries to the private parts of the mother;  (iv) concealment of the bodies;  (v) a previous conviction for indecent assault resulting in a custodial sentence.  If such a case attracted a starting point of 35 years, it was difficult to justify 37 years in the present case which had none of those aggravating features. 

[17]      The case of Wade and Coats v HM Advocate [2014] HCJAC 88 concerned the loss of one life (not two, as here), but there had been illegal detention, torture, the cutting off of parts of a live victim’s body, and disposal of the dead body such that it was never recovered.  Arguably that case involved a higher level of depravity.  The punishment parts imposed were respectively 30 years and 33 years.

[18]      In his sentencing statement in HM Advocate v Snowden and Jennings in October 2015 (murder by fire of three quarters of a family) Lord Matthews had observed that the case was “without doubt the most appalling crime I have ever been involved with in my professional career”.  The two accused had masterminded a fire in which three people (one a child) lost their lives.  Another person was attacked with ammonia.  The punishment parts were respectively 33 years and 29 years. 

[19]      In HM Advocate v Tobin 2008 GWD 40-607, the accused received a punishment part of 21 years for the murder of Angelika Kluk, and subsequently a punishment part of 30 years for a murder which had taken place prior to the Kluk murder. 

[20]      Further punishment parts included Beggs, petitioner 2005 SCCR 47, a sexual murder in 1999 (20 years);  Campbell v HM Advocate 2004 SCCR 220, a murder with six victims (20 years);  Chalmers v HM Advocate 2014 JC 229, murder and dismemberment (23 years);  Coubrough v HM Advocate 2008 SCCR 317, a murder in 1971 (12 years);  Currie v HM Advocate 2003 SCCR 676, the murder of a 76 year old woman in 1985 (18 years);  McPhee v HM Advocate [2005] HCJAC 137, a murder in 1984 (a recommendation of 25 years);  Walker v HM Advocate 2002 SCCR 1036, the shooting in 1985 of two soldiers, with aggravating factors (30 years reduced on appeal to 27). 

[21]      The cases cited were all examples of terrible crimes.  Each turned on its particular circumstances, but if the punishment part imposed on the appellant was the longest of all, there had to be some justification, such as the nature of the crime, or the particular circumstances of the appellant.  No appropriate justification on a comparative basis had been given.

 

The appellant’s criminal record
[22]      The sentencing judge had also fallen into error by taking into consideration offences which took place after the 1977 murders.  The only relevant previous conviction was the one dated 25 August 1961 for culpable homicide.  However the judge, in his sentencing address, referred to the appellant as “a dangerous predator”.  Thus it appeared that the judge had taken into account a murder committed by the appellant in 1978 (for which he was eventually tried and convicted in 2001, and received a punishment part of 15 years);  and 11 sex-related offences committed during 1978-1982.  But the judge had not been entitled to do so.  Although in his report the judge referred to section 101A(2) of the Criminal Procedure (Scotland) Act 1995, that provision applied only to offences committed after 28 March 2011.  Accordingly the judge had erred by taking into account the offences which post-dated the 1977 murders. 

 

The expiry date of the punishment part imposed in 2001
[23]      The sentencing judge in his report suggested that the punishment part which he had imposed was “effectively one of just over 35 years” when account was taken of the expiry date of the 2001 sentence (i.e. the punishment part then imposed of 15 years, expiring in 2016).   However that approach was erroneous, as the sentence imposed in 2001 was not a determinate sentence, but a life sentence. 

 

What a judge might have recommended in 1977
[24]      Finally, the trial judge failed to take sufficient account of what period a judge might have recommended to be served had the appellant been convicted in 1977. 

 

Conclusion
[25]      For all these reasons, the appeal court must look anew at the question of a punishment part.  The appeal should be allowed, the punishment part of 37 years quashed, and a lower punishment part imposed. 

 

 

Submissions for the Crown
[26]      As issues of law had been raised, we called upon the Lord Advocate to offer submissions. 

[27]      In relation to section 101A, the Lord Advocate submitted that the common law was wider than that section, and that section 101A did not extinguish any part of the common law.  Reference was made to Penman v HM Advocate 1999 SCCR 740;  HM Advocate v Tobin 2008 GWD 40-607;  and to an illustrative example, namely an offender who committed two offences;  the second offence was discovered prior to the first offence;  when being sentenced for the second offence, the offender would be treated as a first offender;  but when the first offence came to light, it would be an injustice if the offender were to be sentenced without having regard to the whole circumstances of his case.  For the same reason, the extract convictions and indictments/complaints had been lodged in the present case, giving fair notice to the appellant that they might ultimately be referred to if he were found guilty.  They were highly relevant to the sentencing process. 

[28]      Section 101A would allow the Crown to libel a conviction (whether previous or post‑dated) in a case involving similar criminal conduct.  But the present case was a different situation:  it was simply necessary for the sentencing judge to be aware of all the circumstances, including the appellant’s current status (a lifer twice over) and the fact that he had in the past been convicted of similar offences.  The 1982 conviction and the 2001 conviction demonstrated a pattern of offending.  It was important for the court to take that pattern into account in the context of deterrence. 

[29]      Lord Emslie had taken that approach in Tobin.  Vicki Hamilton disappeared on 16 February 1991.  Angelika Kluk was murdered on 24 September 2006.  Tobin was taken into custody, tried, and convicted of the Kluk murder on 4 May 2007.  He was given a life sentence with a punishment part of 21 years.  Subsequently in 2008 he was tried, and on 2 December 2008, convicted of the murder of Vicki Hamilton.  It was clear from Lord Emslie’s sentencing statement that he had taken into account all the circumstances, including the Kluk case and the punishment part of 21 years.  Section 101A simply offered a means whereby (after 28 March 2011) that information could be communicated to the court.  The necessary information could be placed before the court as outlined in section 101A(4).  But following previous procedure, the means of communication could also be a social enquiry report, oral submissions, or the Riley procedure (which had the advantage of advance notice to the accused). 

[30]      Reference was made to page 3 (at the foot) of the sentencing judge’s report in the present case (see the end of paragraph [6] above).  It was logical for such information to be drawn to the attention of the court, in order that it be taken into account when sentencing.  The media reporting the appellant’s trial were well aware of his offending history.  Judges should not be blind to information which was publicly available:  such information must form part of the sentencing process.  It would defy logic and common sense to have the appellant sentenced as a first offender in relation for the World’s End murders.  When selecting a sentence with deterrence in mind, the sentencing judge had to be aware of all the circumstances. 

[31]      The Crown’s approach in the trial had been based on Riley v HM Advocate 1999 SCCR 644, at pages 648A-C, and 650A-B, F-G (Lord Sutherland).  The Crown had followed that procedure in the present case.  It was accepted that the issue in Riley was whether the sentencing court could go behind the bare terms of a schedule of previous convictions, and that the decision did not directly raise the point which arose in the present case.  It was also accepted that the established sentencing practice was to treat previous convictions as an aggravation of the offence for which the judge was imposing a sentence, and accordingly later crimes were irrelevant for that purpose.  However Riley was in effect an expansion or development of modern sentencing practice.  As was explained at page 650F, what was sought to be achieved was an “appropriate disposal … in the circumstances of the case”. 

[32]      In the present case, the relevant dates were as set out in paragraph [3] above.  It was highly relevant for the judge in November 2014, when addressing the question of sentence in respect of the World’s End murders, to be aware of the pattern and sequence of events, including the fact that the appellant had, in the year directly following 1977, carried out such a similar attack on and murder of a 17-year-old girl (Mary Gallagher).  Thus the Crown had made all the relevant information available with fair notice to the appellant by lodging the certified copy indictments and the extract convictions.  The court was then aware of all the circumstances when carrying out the sentencing exercise.  Senior counsel for the appellant appeared to have accepted that approach at the trial (page 3 of the judge’s report, the end of paragraph [6] above). 

 

Final response for the appellant
[33]      Senior counsel for the appellant submitted that a perceived injustice, namely the possibility that an accused might be treated as a first offender twice over, had been corrected by section 101A.  However section 101A only affected offences committed after 28 March 2011, and there was no provision for back-dating.  That did not sit comfortably with the Lord Advocate’s position. 

[34]      Riley dealt with the particular question of a previous conviction, and whether the court should have more detail about that previous conviction.

[35]      Penman concerned a determinate sentence, not a punishment part.  The court was therefore entitled to take into account not only retribution and deterrence, but also the protection of the public.  By contrast, when dealing with a punishment part, the court was expressly directed by section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 not to have regard to the protection of the public:  that was a matter exclusively for the parole board.  While therefore it was accepted that if subsequent offences were referred to in, say, a social enquiry report, it would be appropriate for the court to take that information into account (for example, if the accused was in prison, probation was not possible), whether such information could be used in other ways was another matter.  The commission of subsequent offences should not impact on the offence for which the court was sentencing.  It was not clear why post-dated offences could be taken into account for the purposes of retribution and deterrence.  Lord Emslie’s approach in Tobin had never been tested in the appeal court.  The law prior to the 2011 Act had not been clear.  Matters had only been clarified by section 101A of the 2011 Act.

 

Discussion
[36]      The appellant was found guilty of assaulting, raping, and murdering two young women in 1977.  Those appalling crimes demonstrated an immeasurable capacity for evil, depravity, and sadism.  The suffering of the victims and their bereaved families is, in our view, incalculable. 

[37]      On 14 November 2014, the appellant was sentenced to life imprisonment with a punishment part of 37 years.

 

Length of time since commission of offence
[38]      We do not accept that the sentencing judge selected 37 years because that represented the length of time which had passed since the commission of the murders.  As the sentencing judge explains, he had concluded at the outset that a punishment part “in the high 30s” should be imposed.  That was his assessment of the gravity of the case.  As he puts it, it was only “coincidentally” that the period selected mirrored the passage of time since the murders.  In the result we are not persuaded that there is any merit in this argument.

 

Comparable cases
[39]      We accept that comparisons with other cases may, in some circumstances, be of assistance.  Nevertheless each case must be decided on its facts.  There is no mandatory upper or lower limit set by either statute or case-law (cf paragraph [7] of Boyle v HM Advocate 2010 JC 66;  paragraphs [12] to [15] of Smith v HM Advocate 2011 SCCR 134).  As was further noted in Boyle at paragraph [7]:

“… [Section 2(3A)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993] makes it plain that the specified period may exceed the likely extent of the remainder of the prisoner’s natural life.  Thus, while the statute does not empower the judge to specify a ‘whole life’ period, in an appropriate case a prisoner in Scotland may be sentenced to a period which in practical terms will extend until his or her death.” 

 

[40]      It seems to us that an experienced sentencing judge who has presided over the trial, heard the witnesses, and seen the labels and productions, is in the best position to decide, in his discretion, the punishment part appropriate to the circumstances of the case.  An appeal court should be slow to alter such an assessment, a fortiori as other punishment parts may have been imposed in different circumstances and in a different sentencing era:  cf the observations of Lord Carloway (now Lord Justice General Carloway) in Smith at paragraph [15].  What may be regarded as an appropriate punishment part may vary from era to era. 

[41]      Against that background, it is our view that the present case, one of a sadistic double murder and rape of two young girls in the circumstances outlined in the judge’s report, was truly horrific.  In addition, the previous conviction for culpable homicide of a young girl was a major aggravating factor.  In all the circumstances, we consider that the sentencing judge was entitled, exercising his discretion in the context of retribution and deterrence, to select a punishment part at the very top of the range.  We note the cases cited by senior counsel for the appellant, but bearing in mind the observations we have made in this paragraph and the two preceding paragraphs, we are not persuaded that the discretion of the sentencing judge was restricted in his selection by either statute or other cases, nor are we persuaded that the sentencing judge erred in his selection. 

 

The appellant’s criminal record
[42]      We agree with the Lord Advocate that the common law, as it has developed over the years, is at least as wide as (if not wider than) section 101A of the 1995 Act.  A judge is, at common law, entitled to have regard to all the relevant circumstances for the purposes of sentencing:  it would be wholly unrealistic to suggest otherwise.  Thus at common law, if an accused appears from custody throughout a trial, a sentencing judge would need to know what had given rise to such circumstances.  Again at common law, if a judge is considering a non-custodial disposal such as a community payback order, information concerning convictions and disposals subsequent to the current offence might demonstrate that the accused (a) cannot be relied upon to co-operate with a non-custodial sentence, and (b) is, in any event, the subject of a substantial custodial sentence. 

[43]      Thus the common law, as developed in the context of modern sentencing practice, clearly envisages that a sentencing judge should have an overall view of the accused’s life in order to be able to sentence him or her appropriately.  Such an overall view may properly be obtained from oral submissions, medical reports, reports from psychologists or psychiatrists, social enquiry reports/criminal justice social work reports, and/or the production of extract convictions with certified extracts of the indictments, following the procedure suggested by Lord Sutherland in Riley v HM Advocate 1999 SCCR 644 at pages 648A-C and 650A-B, F‑G (and being the procedure adopted by the Crown in the present case). 

[44]      At least two authorities cited by the Lord Advocate illustrate such common law sentencing powers, namely Penman v HM Advocate 1999 SCCR 740;  and HM Advocate v Tobin 2008 GWD 40-607. 

[45]      In Penman, the criminal appeal court approved the taking into account of a conviction dated 1996 (relating to criminal conduct between 1982 and 1987) when sentencing an accused in 1999 (in relation to criminal conduct between 1966 and 1976).  We accept that the sentencing judge in that case had regard to retribution, deterrence, and risk to the public, whereas the judge in the present case was concerned with deterrence and retribution but not risk to the public (section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993).  Nevertheless we consider that the court’s observations, particularly at page 745, give guidance.  Thus in the present case, the convictions of 1982 and 2001 were proper and relevant matters for the sentencing judge to take into account at common law.  

[46]      In Tobin, the sequence of events was as follows: 

• 16 February 1991:Tobin murdered Vicki Hamilton
• 24 September 2006:Tobin murdered Angelika Kluk
• 4 May 2007:Tobin was convicted of the murder of Angelika Kluk and given a punishment part of 21 years
• 2 December 2008:Tobin was convicted of the murder of Vicki Hamilton and given a punishment part of 30 years.

When sentencing Tobin in 2008 for the murder of Vicki Hamilton, the sentencing judge (Lord Emslie) was, at common law, entitled to take into account the whole circumstances of the case, including Tobin’s current status as a prisoner serving a life sentence;  the reason for that status;  and the details of his offending history including the punishment part of 21 years for the murder of Angelika Kluk (which occurred chronologically after the murder of Vicki Hamilton).  Had a social enquiry report been necessary (which it was not), that report would have revealed those details.  While in terms of section 2(2) of the 1993 Act, the sentencing judge was not to take into account risk to the public, nevertheless the judge was entitled to have regard to the whole circumstances of the case. 

[47]      It is our opinion therefore that section 101A merely reflects the current common law position, as it has developed, and does not detract from or limit existing common law sentencing powers.  Section 101A also provides a procedural route for giving appropriate notice to the court and to the accused (cf Renton & Brown Criminal Procedure Legislation paragraph A4-228.6).

[48]      Against that background, the judge’s reference to section 101A was unnecessary, as the murders for which he was sentencing the appellant occurred before 2011.  However the approach which he adopted did not demonstrate any error or departure from common law sentencing powers as they have developed.  As we have already indicated, the judge was faced with the double murder of young women on the threshold of life, in a brutal and sadistic attack.  The circumstances of the offence justified a punishment part at the top of the range.  In addition, there was the previous conviction of the appellant (then aged 16 years) for an offence of culpable homicide only eight years previously, the victim being a young girl aged seven who had been sexually interfered with, for which offence the appellant had been sentenced to 10 years detention – all justifying the judge’s description of him as a “dangerous predator”.  Those matters, set within the pattern of the appellant’s life to the date of the current sentencing, were entirely relevant and to be taken into account by the sentencing judge. 

[49]      We therefore reject the arguments relating to the appellant’s criminal record.

 

The expiry date of the punishment part imposed in 2001
[50]      As for the judge’s reference at page 25 of his report to “the expiry date of the sentence imposed in 2001” (i.e. a previous life sentence with a punishment part of 15 years imposed for the rape and murder of another young woman), we note that the reference is prefaced by the words “As it happens”.  Properly construed, the judge was, in our view, indicating that he had selected the period of 37 years, and following upon that selection, made the observation concerning the 2001 sentence.  We do not accept that the reference to the expiry date of the 2001 punishment part made any significant contribution to the judge’s selection of 37 years. 

 

What a judge might have recommended in 1977
[51]      We do not accept that the sentencing judge was obliged to carry out some sort of retrospective assessment of what a sentencing judge in 1977 might have recommended, had the appellant been convicted at that time.  The sentencing of the appellant should not be based on such a hypothetical, theoretical or speculative exercise:  rather it is a matter to be assessed at the time of his conviction, when all the relevant circumstances can be taken into account.  Accordingly we reject this argument. 

 

Conclusion
[52]      In the result we are not persuaded that the judge erred. 

 

Decision
[53]      For the reasons given above, we refuse the appeal against sentence.