Scottish High Court of Justiciary Decisons

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Cite as: [2018] HCJAC 5, [2018] ScotHC HCJAC_5

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Brodie

Lord Turnbull

OPINION OF THE COURT

[2018] HCJAC 5

HCA/2016/000430/XC

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

APPEAL AGAINST SENTENCE

LEE CONNORS AKA LEE ANDREW HUNTER

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: A Brown, QC, C Findlater; Faculty Services Limited, for Bridge Litigation, Glasgow

Respondent: J Farquharson, AD; Crown Agent

20 December 2017

[1] After trial at Edinburgh in February 2016, the appellant was convicted of six charges,

including attempted murder with a firearm. Three of the charges related to his possession of

the firearm, and ammunition. The two remaining charges were of breach of the peace and

assault by presenting the firearm.

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Background

[2] On the evening of 24 October, the appellant called his former girlfriend Kimberly

Dow, in a state of distress, saying he couldn’t speak to anyone else. She arranged to meet

him. He was driving a black Nissan car, accompanied by a man called Coco. The appellant

told Kimberly Dow that people from Manchester were after him, that he had nowhere to go

and needed help. All three went to her flat. Once there, the accused took a blue bag

containing a handgun from under his jumper. He unloaded the gun, put the bullets and the

gun in the bag and asked if he could “stash” it in Kimberly Dow’s house. She refused, but

agreed to put him up for the night. She accompanied the appellant to the house of an old

friend, where the appellant claimed to have “stashed” the gun. In the event, he did not stay

at Kimberly Dow’s house that evening.

[3] The following day a friend of Kimberly Dow, Grant McBeth, came to her house in the

morning. She told him what had happened. The appellant then appeared, knocking on the

window. Kimberly Dow said she did not want to speak to him. The appellant was not

happy at the presence of Grant McBeth. He was “raging” and trying to gain entry through

the window. Following a verbal altercation, the appellant sped off in his car. For reasons

which are not specified Grant McBeth went after him. Within 5 minutes McBeth returned,

beeped to gain Kimberly Dow’s attention, saying to her “hurry up, he’s away to get that

thing.” She just managed to get out of the building when the appellant “came screeching

round the corner like a maniac”. He was pointing the gun out of the window as the two cars

came level. He said “Get down, get down, I’ll dae it”. McBeth said “dae what you want to

dae, I’m no afraid of dying”. The appellant pulled the trigger three times, whilst the gun

was pointed at McBeth’s face. Kimberly Dow threw her keys at his car to try to distract him.

He then pointed the gun at her, saying “please babe, get in the car”. She spoke into her

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phone as if calling the police, and he drove off. When the gun was recovered it had three

bullets in the chamber. The gun had a home-made firing pin. Each bullet had a firing pin

impression, indicating that they had been struck by the firing pin but not detonated.

Considering that the risk criteria might be met, the trial judge made a Risk Assessment

Order.

The Risk Assessment Report

[4] As required by statute, the assessor stated her opinion whether the risk presented by

the appellant was high, medium or low in these terms:

“Having regard to such standards and guidelines as are issued by the Risk

Management Authority, and undertaken this risk assessment report in a manner

accredited by the Risk Management Authority I am of the opinion that Mr Lee

Connor presents a high risk.

She considered that

”... he presents with personality traits which will require a great deal of time and

support to ameliorate and manage his risk. … In order to protect the public, long-

term monitoring and supervision are required for Mr Connor and in the absence of

treatment, management and supervision, he is likely to continue to seriously

endanger the lives, or physical or psychological wellbeing of the public at large.”

She was unable to address his motivation, as he continued to deny his offending behaviour.

The assessor noted that the appellant: “... presents as very plausible when being

interviewed and his presentation could easily convince non-professionals that he is innocent

and presents no danger.”

[5] Turning to the specific question of future risk, the assessor stated:

“His risk is managed well in a prison setting although there remains the propensity

for violent offending. If he were in the community, his risk would currently be

unmanageable without high levels of monitoring and supervision as he has not yet

learnt the skills to cope with stress and emotional difficulties without resorting to

violence.

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Mr Connor requires a lot of support and interventions to adequately manage the risk

he presents within the community. He requires long-term support and risk

management. He is currently willing to undertake treatment interventions but does

not believe he needs to do any work or that he is a risk to others. Denial itself is not

predictive of recidivism but it does make individuals less amenable to undertaking

treatment interventions in a meaningful way. It is worth noting that minimising his

behaviour or displacing responsibility is not uncharacteristic of Mr Connor as he has

been doing this since childhood.”

[6] The report concluded with this statement of opinion that the appellant’s behaviour

“... indicates an enduring propensity to seriously endanger the lives or well being of

the public at large. Mr Connor presents with psychopathic, narcissistic, antisocial

and paranoid personality traits, which will require a great deal of time and support

to ameliorate and manage his risk. ... In the absence of treatment, management and

supervision, he is likely to continue to seriously endanger the public at large.”

(emphasis added)

The judge’s decision

[7] The trial judge being unavailable due to illness, the case next called for sentencing

before another judge. The solicitor advocate for the appellant did not contest the imposition

of an Order for Lifelong Restriction, primarily making a submission related to allowance for

time spent in custody. In making such an order the sentencing judge stated that on the basis

of the conviction and the terms of the Risk Assessment Report, he was satisfied that the risk

criteria were met.

The grounds of appeal

[8] An appeal against sentence was marked on the basis of (i) defective representation;

and (ii) an argument that in any event an OLR was not appropriate. Only the second

ground passed the sift. The basis of it is that the sentencing judge erred in finding that the

risk criteria had been met. The assessor had not properly addressed the risk that the

appellant would pose at a time in the future when, other than with an OLR, he would be at

liberty and no longer under any post-release supervision. The information before the

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sentencing judge did not suggest that the appellant presented a continuing and indefinite

risk to public safety. It was submitted that his pattern of offending did not suggest that he

had an enduring propensity for harm. His first offence had been at age 21, most of his

convictions had been at summary level, save for one at sheriff and jury. The sentencing

judge had said that he took the Risk Assessment Report at “face value”. He should not have

done so. He should have been more hesitant and should not merely have accepted the

terms of the report. Whilst it had been a difficulty for the assessor that the appellant denied

his offending, that position had now changed; the appellant had now acknowledged his

offending. He has been responding well within the custodial setting. The sentencing judge

had not given sufficient weight to positive factors, such as his intelligence and his

motivation to be involved with his children.

Analysis and decision

[9] Section 210E of the Criminal Procedure (Scotland) Act 1995 provides:

“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.”

[10] In relation to the making of an OLR, Section 210F provides:

“(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;

(d) any other information before it,

that, on a balance of probabilities, the risk criteria are met, shall, in a case where it

may make a compulsion order in respect of the convicted person under section 57A

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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.”

[11] In order to enable the categorisation of low, medium or high risk to be interpreted

and applied in a consistent way, the Risk Management Authority has sought to define these

ratings as a description of an offender’s overall risk. According to their standards and

guidelines the ascription of “high” risk to an offender means that:

“The nature, seriousness and pattern of this individual’s behaviour indicates an

enduring propensity to seriously endanger the lives, or physical or psychological

well being of the public at large. The individual has problematic, persistent,

pervasive characteristics that are relevant to risk and

• not likely to be amenable to change; or

• the potential for change with time and/or treatment is significantly limited.

Without changes in these characteristics the individual will continue to pose a risk of

serious harm.

Furthermore,

• there are few if any protective factors to counterbalance these characteristics;

• concerted long-term measures are indicated to manage the risk, including

restriction, monitoring, supervision, and where the offender has the capacity to

respond, treatment;

• the nature of the difficulties with which the individual presents are such that

treatment is unlikely to mitigate the need for long term monitoring and

supervision; and

• in the absence of such measures, this individual is likely to continue to seriously

endanger the lives, or physical or psychological well being of the public at large.”

[12] It was in recognition of this definition of “high” risk that the court in Ferguson v

HMA 2014 SLT 431 observed that where such a categorisation has been made, and the judge

accepts it, it is a strong indicator pointing towards the necessity for an OLR, the final

decision thereanent being for the sentencing judge. The fact that such a classification means

that the assessor considers the offender to present “an enduring propensity to seriously

endanger the lives, or physical or psychological well being of the public at large” and that

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“the potential for change with time and/or treatment is significantly limited” are powerful

factors in favour of an OLR.

[13] In the present case, the sentencing judge had regard to the factors referred to in

Ferguson. Notwithstanding the fact that no contrary submission was made to him, he

recognised that he had to examined the report with care and satisfy himself that the terms of

the report justified the assessment made (para5). He gave careful consideration to the report

and its conclusions (para 6). He noted that the assessor had given detailed reasoning for her

conclusions, and narrated in some depth the facts upon which they were based. The

sentencing judge concluded that:

“It seemed to me that, taking the Report at face value, the facts and reasoning

justified the conclusions and the Report was of assistance to the court as the report of

a suitably qualified expert.”

[14] It was this part of the sentencing judge’s report which was seized upon by senior

counsel for the appellant in his argument that the report should “not have been taken at face

value” and that he had erred in finding the risk criteria to have been met. In our view, this is

to take out of context the remarks of the sentencing judge: what he meant by taking the

report at face value was simply that he could accept the material in it as accurate and the

assessment as properly carried it out. The sentencing judge made it abundantly clear that he

recognised that he had to satisfy himself as to the risk criteria, and that in addressing what

to make of the Risk Assessment Report he subjected the report to an appropriate analysis to

test the conclusions reached against the facts upon which it as based and the reasoning

adopted.

[15] On the specific point about future risk, the sentencing judge stated:

“I had in mind that although the time for assessing the likelihood of serious

endangerment was the time of sentencing, I was required to contemplate whether

there was likely to be serious endangerment at the point in the future where, but for

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the imposition of an OLR, the appellant might be predicted to be at liberty (Ferguson

v HMA para [99]). I bore in mind that that point might be after a determinate or an

extended sentence (para [104]). I considered that the Report addressed that future

point. In section 6 the Assessor states that the appellant requires “long-term”

support and risk management. In Section 7 the Assessor identifies an “enduring”

propensity, indicated that “long-term” monitoring and supervision were required,

and indicates that in the absence of inter alia supervision he was likely to “continue”

to seriously endanger the public at large.”

[16] The fact that the appellant might have been compliant within the prison system, or

that he now appears at least to acknowledge his guilt, does not deprive the sentencing

judge’s decision of validity. We do not know the extent to which the appellant’s

acknowledgement of guilt carries with it a full acceptance of responsibility for his own

actions. Moreover, whilst the assessor had noted that his denial of the crime imposed

certain limitations on her report, she proceeded on the basis that denial is not prescriptive of

recidivism, and does not prevent management work being carried out. The assessor was

aware of how the appellant had conducted himself while on remand. In any event, it is a

central point in her report that the risk which the appellant presents is one which is more

easily managed within the prison environment.

[17] In concluding that the risk criteria were met, the sentencing judge had regard to the

serious nature of the offending, observing that:

“after an altercation the appellant had left to retrieve a gun. On his return, the

appellant pointed it at the complainer’s face. The gun was loaded. The appellant

pulled the trigger but the bullet did not detonate. At that point he did not desist, but

pulled the trigger a further two times, and each time the relevant bullet did not

detonate.”

[18] It was also relevant to note that on 8 March 2016 the appellant had pled guilty at the

High Court in Paisley to a charge of possession of a (different) firearm, for which he had

received a sentence of 5 years imprisonment.

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[19] In the circumstances we cannot say that the sentencing judge was not entitled to

impose an OLR and the appeal will be refused.