Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 75

HCA/2014-003609/XC

Lord Justice Clerk

Lord Menzies

Lord Drummond Young

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

JOHN DAVID MACINTOSH

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Miss C Mitchell; Faculty Services Limited, Edinburgh

Respondent:  A Brown, QC, AD;  Crown Agent

19 August 2016

[1]        After trial on an indictment containing 10 charges the appellant was convicted of four charges namely charges 1, 2, 6 and 9, subject to certain deletions.  These were four charges of serious sexual offences.  The first involved sexual assault and attempted rape of a nine year old girl on repeated occasions between December 1996 and December 1997.  The second, committed between 1 January 1998 and 31 December 2001, involved one act of rape on the appellant’s then partner, after entering her home uninvited, struggling with her, sitting on top of her and restraining her.  The third, in the first half of 2002, involved sexual assault on numerous occasions and one act of rape, to injury, of a woman with whom he had a short term relationship, in which he also sat on top of her, seized her by the body and ripped her underwear.  The fourth involved rape on various occasions between 1 November 2002 and 31 December 2004, of another woman with whom he was then living.   These incidents occurred when the complainer was asleep and incapable of giving consent.

[2]        The accused had previous convictions which included a conviction at Paisley High Court on 4 July 2007 for two offences under section 5(3) of the Criminal Law (Consolidation) (Scotland) Ac 1995 involving sexual intercourse with two female complainers who were aged 13 and 14.  He was sentenced to seven years imprisonment in respect of those charges.

[3]        Believing that it was not competent for him to impose an order for lifelong restriction in relation to the charges on the present indictment, the trial judge imposed a sentence of life imprisonment with a punishment part of 10 years.  That period was selected on the basis that had he been imposing a determinate sentence it would have been one of 20 years imprisonment. 

[4]        The sentence was appealed on the basis that an extended sentence, which would have been available in respect of charges 6 and 9, would have provided adequate protection of the public, and met the requirements of punishment and deterrence.  Esto a discretionary life sentence was appropriate, calculating the punishment part by reference to a determinate sentence of 20 years was excessive.

[5]        In reaching his conclusion that an order for lifelong restriction was not competent the trial judge overlooked the terms of the Criminal Justice (Scotland) Act 2003 (Commencement Number 9) Order 2006 (SSI 2006/332) which was made on 7 June 2006, and which allows an order for lifelong restriction to be imposed in relation to offences committed before 20 June 2006 where proceedings in relation to those offences are commenced after 20 June 2006.  In short the result is that an order for lifelong restriction was competent in relation to charges 2, 6 and 9 all of these being offences which came within the terms of the 2006 Commencement Order.  Only the first charge is excluded from the operation of the provisions relating to an order for lifelong restriction.  Counsel for the appellant and the Advocate Depute were in agreement that this was a correct reading of the legislative provisions.  The trial judge explained in his report that had he appreciated the terms of the commencement order he would have called for a risk assessment report in relation to charges 2, 6 and 9.

[6]        Against this background the case came before the appeal court which ordered the preparation of a criminal justice social work report which had not been undertaken at a prior stage of the case.  The writer of the report made an assessment of risk based on the Risk Matrix 2000 Assessment Tool.  The conclusion at page 8 of the report is that the accused is in the high risk category for offences of both sex and violence, relative to other male sexual offenders.  Using a further tool, designed to assess both stable and acute factors in relation to risk, the writer further concluded that the accused presented a high level of risk.  It was noted that he was recalled to custody during his previous sentence for failing to comply with licence conditions, which might indicate an unwillingness to comply with community based supervision.  The report concluded

“Mr MacIntosh’s sexual offending spans an 11 years period with recorded serious sexual offences against six different victims.  I believe this deviant sexual behaviour to be entrenched and remain unaddressed due to Mr MacIntosh’s strenuous denials of guilt.  The fact that this deviant behaviour remains unaddressed despite a lengthy period in prison leads me to believe that Mr MacIntosh poses a significant continuing risk to females. “

[7]        The report indicated that given the level of persistent denial, the nature and severity of the offending and the extended time period over which the offences took place the court might give consideration to the imposition of an order for lifelong restriction.  Having regard to the nature of the offences of which the appellant had been convicted, his previous convictions and the terms of the criminal justice social work report the court considered that the risk criteria may be met and accordingly that the court required to make a risk assessment order in terms of section 210B of the Criminal Procedure (Scotland) Act 1995 in order for a risk assessment to be carried out in relation to the appellant. 

The Risk Assessment report

[8]        The report was prepared by Dawn Harris of the Risk Management Authority.  It records that when released on non-parole licence following his earlier convictions the appellant very quickly breached that licence by associating with another sexual offender, seeing his children without supervision, having contact with the 15 year old daughter of his cousin, and using social media to have contact with young females.  During his period in custody he had refused to engage in any offence-specific programmes and continued to deny having committed the offences.  After release he briefly engaged in a “deniers” programme, but his social worker said that he:

“was deceitful, untruthful and untrustworthy and in this he has displayed an almost total disregard for the requirements of his licence”.

[9]        Miss Harris concluded that the appellant presented a high level of risk to the safety of the public at large.  There were few protective factors and long term risk management was required.  He is an individual who tends to do as and what he wants, when he wants.  She considered him to have a narcissistic Personality Disorder with a sense of entitlement.  Specific risk factors included:

• Chronicity of sexual violence
• Extreme minimisation and denial
• Psychological coercion
• problems with self-awareness
• problems engaging with treatment
• difficulties with compliance with supervision
• problems with intimate relationships
• problems with non-intimate relationships

There was evidence of the following psychopathic personality traits:

• lack of remorse/guilt
• shallow effect
• callousness/lack of empathy
• glibness/superficial charm
• grandiose sense of self-worth
• failure to accept responsibility for his own actions
• revocation of conditional release
• many short-term marital relationships

There was partial evidence of the following psychopathic traits:

• lack of realistic, long term, goals
• cunning/manipulative behaviour
• pathological lying
• promiscuous sexual behaviour
• irresponsibility
• criminal versatility

[10]      A robust, comprehensive, multi-agency and structured approach to risk management would be vital to managing risk in the community.

[11]      This report was initially criticised on behalf of the appellant on the basis that there were conclusions relating to Personality Disorder, yet no tests had been applied in order to verify this.  The court agreed that a second report might be obtained, and the appellant’s agents instructed a report from Dr Ewan Lundie, a chartered forensic and clinical psychologist.  That report concluded that there was evidence of some of the interpersonal traits of psychopathy (superficial charm, lack of remorse, callousness, manipulation) and some of the anti-social behaviour patterns (persistent and varied offending from a young age) when at liberty.  There was evidence of:

• chronicity of sexual violence
• physical coercion in sexual violence
• psychological coercion in sexual violence
• extreme minimisation or denial of sexual violence
• problems with self-awareness
• attitudes supporting or condoning violence
• sexual deviance
• problems with intimate relationships
• problems with non-intimate relationships
• problems with planning, treatment and supervision

Submissions
[12]      The assessment of the appellant as presenting a high risk was not challenged, and

the fact that one report made comments suggestive of a personality disorder was of no consequence- many of the factors which led to the assessment in the first report were also found to be present in the second.  The assessments were both accepted.  However, the court always had a discretion whether or not to impose an order for lifelong restriction, even when there was an admittedly high risk.  It was for the court to determine, not that a particular level of risk is made out, but that the risk criteria are met. In considering whether to make an order for lifelong restriction the court was looking at the likelihood of serous endangerment when the offender was at liberty, taking into account what might be achieved by way of rehabilitation whilst in custody and the predicted effects of post release supervision.  The Court had to be satisfied that none of the other options would suffice.  In the present case it was argued that an extended sentence would be sufficient to meet the risk.

[13]      Section 210F of the Criminal Procedure (Scotland) Act 1995 provides that if the High Court is satisfied that, on a balance of probabilities, the risk criteria are met, it shall make an order for lifelong restriction.  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.

[14]      The test which requires to be met for the imposition of an extended sentence is contained within section 210A of the 1995 Act, which provides that where a person has been convicted on indictment of a sexual offence, in circumstances where the court intends to pass a determinate sentence, it may pass an extended sentence if it considers that the period (if any) for which the offender would otherwise be subject to licence would not be adequate for the purpose of protecting the public from serious harm.

[15]      Miss Mitchell submitted that in the circumstances of this case, the court might readily find the test in section 210A to have been met, and might consider that an extended sentence would provide sufficient protection for the public.  Such a sentence could be imposed in respect of charges 2, 6, and 9.  She referred to Ferguson v HMA 2012 SCCR;  and a speech on the matter made by the Lord Justice General (Carloway) at the Annual Conference of the International Society for the Reform of the Criminal Law, 26 June 2014.

[16]      In considering for the purposes of section 210F it was not enough for the court to assess the likelihood of the risk were the appellant immediately to be at liberty; the court must look forward to the point at which, but for the imposition of the order for lifelong restriction, the appellant would be at liberty.  This anticipated the period after the offender would otherwise have been released from prison, albeit subject to parole licence or extended sentence supervision, and had firmly in view the time at which the offender would have ceased to be the subject of such supervision.  The court thus required to address whether any custodial or post-release regime, short of an order for lifelong restriction, would have any material impact on the likely risk.  The application of the risk criteria must not circumvent the application of the broader sentencing regime in respect of those offenders who presented a continuing, but not indefinite, risk to public safety.  Against this background, it was submitted that an extended sentence would be sufficient to manage the risk posed by the appellant.  He would be considerably older by the time of release, and post-release supervision would be in place.

Decision
[17]      We cannot agree with the submission that this is a case in which the risk presented by the appellant could adequately be managed by an extended sentence and that an order for lifelong restriction is not required.  Both reports are quite clear in their terms that the appellant presents a significant and enduring risk to the public at large, in circumstances where there is little or no prospect of the appellant properly engaging in work designed to reduce that risk.  The extent to which the appellant is resistant to engagement with rehabilitative programmes, completely failing to acknowledge any requirement for change on his part, or even to acknowledge guilt for any of his offences, deprives Miss Mitchell’s argument of any force.  The conclusions of the report obtained at the behest of the defence not only indicated that the overall risk classification was high; it indicated that the nature, seriousness and pattern of the appellant’s behaviour indicated an enduring propensity to seriously endanger the physical and psychological well-being of the public at large.  He has problematic, persistent and pervasive characteristics which are relevant to risk.  Without changes in these characteristics he will continue to pose a risk of serious harm, yet the potential for change with either time or treatment appeared significantly limited.  There were few protective factors to counterbalance the concerning characteristics. Concerted long-term measures were indicated to manage the risk, including restriction, monitoring, and supervision. In their absence he is likely to continue to seriously endanger the physical or psychological well-being of the public at large.  This accorded with the conclusions of the original report that there were few protective factors, a lack of motivation to change, and a family which colluded in his denials.  The original report noted that in his previous 7 year prison sentence the appellant did not participate in any offence-specific programmes since, as in the circumstances of the present case, he continued to deny his offending.  There is no evidence that his attitude to participating in such programme – considered essential to the management and reduction of risk – is any different today, and the writer of the first report was doubtful that the situation would change in the years ahead.

[18]      We shall accordingly make an order for lifelong restriction in this case.  In fixing the punishment part we are required to take into account not only the previous convictions but the seriousness of the offences, or of the offence combined with other offences of which the life prisoner is convicted on the same indictment as that offence.  We require therefore to recognise that along with charges 2, 6, and 9 the appellant was convicted of charge 1.  In light of that, we consider that we should commence the calculation by reference to a determinate period of 20 years.  Of that period we would have stripped out 6 years for the element of public protection, leaving a period of 14 years for the purposes of punishment and deterrence.  The resulting punishment part will therefore be 7 years.  We will impose a determinate sentence in respect of charge 1 of 9 years.